Foundational jurisprudence establishes the cardinal rule of law principle in progressive constitutional democracies that justice should not only be done in all cases, but that it should be seen to be done. Three compelling inferences stem from that thesis. First, the law is no respecter of persons. Second, everyone is equal before the law. Third, the effectiveness, and integrity, of socio-legal order is reinforced by the consistent, demonstrable and impartial dispensation of justice. These are entirely noble principles which accord with equity, fairness and reason.
The anti-thesis is that neither jurisprudence nor the dispensation of justice exist in vacuo. They always subsist within the purview of contested socio-legal and socio-political dynamics, diametrically opposed ideological persuasions, constrictive and liberalist rules of statutory interpretation and judicial activism. Judges are part and parcel of society after all and are, invariably, appointed by democratic or non-democratically elected politicians.
So, whilst they ordinarily have an inherent interest in the preservation of law and order in society, delivering justice according to law upon the unique facts of each case before them; and the fearless, and objective, discharge of their constitutional responsibilities according to their respective oaths of office; nevertheless, the constrictive or liberalist interpretation of law, is entirely within each jurist’s philosophical disposition and practical discretion.
That proposition is materially relevant in the monumental Supreme Court of the United States (SCOTUS) decision on Presidential immunity, 23-939 Trump v United States (July 1, 2024).
The facts! Ex-President Donald Trump was indicted by a federal grand jury, on four counts for conduct in his Presidential tenure in the aftermath of the November 2020, American elections. The indictment alleged that upon losing the election, Trump conspired to overturn it by intentionally spreading falsely claims of election fraud, with a view to obstructing the collecting, counting and verification of election results.
Trump moved to dismiss the indictment, relying on Presidential immunity, contending that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations were entirely within his official duties. At first instance, the District Court denied Trump’s motion to dismiss, by deciding that ex-US Presidents do not possess federal criminal immunity for any acts.
The United States Court of Appeals, for the District of Columbia Circuit affirmed the District Court’s decision. The latter courts declined to decide whether the indicted conduct engaged official acts of a sitting President, whereupon the matter was appealed to the final appellate court: SCOTUS.
The Supreme Court held that under the United States constitutional arrangements of the separation of powers between the Executive, Judiciary and Legislature (Congress), the nature of Presidential power entitles former Presidents – and by necessary inference serving Presidents- to: (1) absolute immunity from criminal prosecutions within his conclusive and presumptive constitutional authority; (2) presumptive immunity from prosecution for all his official acts; and (3) no immunity for unofficial acts.
The Supreme Court did not define what specific Presidential events constituted official or unofficial actions, but instead, remanded that decision to the District Court. The majority judgment delivered by Justice Roberts, opined inter alia that where the President exercises his “conclusive and preclusive” authority, “Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalise the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.”
Quite unsurprisingly, this decision has generated global consternation amongst the U.S. Supreme Court’s own justices, academics, lawyers, leading jurists, legislators and commentators as to its phenomenal reach, the grave implications within and beyond the United States and serious concerns for democracy. Fuelling that consternation, the SCOTUS decision was reached on ideological lines with six conservative justices (all appointed by Republican Presidents) voting in favour, and three liberal justices (appointed by Democrat Presidents) dissenting.
The majority SCOTUS conservative Justices were: John Roberts (Chief Justice); Clarence Thomas; Samuel Alito; Neil Gorsuch (appointed by Trump); Brett Kavanaugh (appointed by Trump); Amy Coney Barrett (appointed by Trump). The dissenting SCOTUS minority liberal Justices were Sonia Sotomayor; Elena Kagan; and Ketanji Brown Jackson.
In a scathing dissenting opinion, SCOTUS Justice Sotomayor affirmed inter alia, that the conservative majority of the Supreme Court “has replaced a presumption of equality before the law with a presumption that the President is above the law for all his official acts.” She advances her analysis by asserting that if the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts.
“For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder.
“That is a strange result, to say the least. The majority’s extraordinary rule has no basis in law.” Justice Sonia Sotomayor further opines that the decision to grant former Presidents, criminal immunity, reshapes the institution of the Presidency and “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law…Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”
Notwithstanding the majority and dissenting opinions of the eminent Justices of the SCOTUS in this case, there is no getting away from some important posers and the contextual materiality of the maxim propounded by the British parliamentarian, Lord Acton 1834 -1902, viz “power tends to corrupt and absolute power tends to corrupt absolutely.”
Accordingly, will absolute Presidential powers in official acts, irrespective of the context, aid or upend the administration of justice and the rule of law? What are the implications of this case on Presidents who adopt a literalist interpretation of this decision on their political opponents thereby harming democracy?
What impedes immature democracies, civilian dictatorships and sit-tight leaders, from fraudulently invoking this doctrine of absolute immunity now propounded by SCOTUS, for so-called “official” acts like corruptive practices, drug-trafficking, genocide, money laundering, people-smuggling, regime-change in other jurisdictions and other high crimes? Should US Supreme Court Justices be adjudicating on matters directly involving the very same Presidents who appointed them to office? Doesn’t that negate objectivity and heighten spectre of bias in the administration of justice?
How will objective minds and right-thinking people evaluate this peculiar decision? How do SCOTUS Justices address ethics, conflicts of interests and moral hazards? Should proven, apolitical, world-leading American jurists sit as independents on the U.S. Supreme Court in exceptional cases where Justices are conflicted?
Assuredly, these posers implicate the constitutional reform paradox, in that jurisprudential interpretation will nearly always be guided by the ideological leanings of jurists, substantiated by legal and historical authorities, and judicial activism on the one hand; and, on the other, safeguarding the integrity of socio-legal order, to the extent that the common man reposes faith in the integrity of the administration of justice, demonstrable neutrality, judicial ethics, and the rule of law.
That is already a complicated balancing act for the U.S. Congress which will have to summon the political will to address whatever shortcomings persist in its constitutional architecture, the contested boundaries of separation of powers as between the Executive, Legislature and the Judiciary, and crucially, the absolutist powers granted Presidents when exercising official acts and the inherent risks therein based on this epic, albeit deeply, polarising decision.
Indeed, the eminent jurist, Lord Jonathan Sumption, prophetically struck similar chords in Law in a Time of Crisis (2021) when he advanced the following seminal proposition:
“Judges should not make judicial decisions which properly belong to the world of politics… they should not identify themselves with politically controversial cases that may undermine the perceived objectivity of their judicial decisions.
“It is their duty not just to put aside their personal political preferences when deciding cases, but to be seen to put them aside.”
Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.
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