Immunity From Prosecution For Former Presidents

The question to the general person would be, what is immunity from prosecution?

To answer that, immunity from prosecution refers to the protection granted to the president from any legal proceedings against him so that he/she can make decisions and take necessary actions as and when required, without the fear of a lawsuit. A lawsuit can serve as a distraction from the mammoth tasks and day-to-day endeavors of being the President, who is also the executive. The concept of immunity and its context varies from country to country. The bases which allow for suits to be filed also vary in meaning and context in different nations. However, they are suited to the configuration of the nation and its practiced systems and governmental machinery.


In the USA, the president is immune from prosecution for the time he remains in office; as Alex Bickel puts it, "In the presidency, is embodied the continuity and indestructibility of the state.''[1] Thus, the question that why a president is granted such immunity is irrelevant because that position of power requires such special privilege for its proper functioning.

In India, the president is the real head, but he is to act per the ministers' advice, which restricts and limits the abuse of power by the president as it is a way of checks and balances in the government. Every country has different rules and legislation as to what term will define the protection of its president from prosecution and also varied terminology, as to, for what reasons the president can be prosecuted. This verbiage promotes the bending of rules as per the convenience of the country. It facilitates no common rules to abide by for every country despite the usage of common verbiage.


“Flagrant crime and high treason” are the two most commonly used words as the reason which can initiate proceedings against a sitting president. What constitutes these expressions and whether they can be considered as reasons for prosecuting a president, despite being such broad representations of the possible outcomes?

The wisest choice is to accuse and charge a sitting president with the process of impeachment to initiate the questioning. For several constitutional and practical reasons, the president is not subject to the ordinary criminal process, while in office. On the other hand, the former presidents are subject to the regular court processes, as no one is above the law when the immunity is non-existent.


As for former presidents, criminal and civil proceedings can be initiated against them once they become “former” President and are, therefore, no more an officeholder. The Former President of the US, Donald Trump, has been in the news for his actions and words which specifically brought the topic of this article to light. The infamous capitol hill riots, which were termed as “a black day in the history of the US democracy” [2], brought up Former President Trump as the one to incite violence which was termed as “domestic terrorism.” [3] The attacking mob was blamed to be “with money” and various sources pointed towards Mr Trump and thus, the impeachment proceedings took place for the second time against him.

Mr Trump was immune from prosecution while he was the sitting president.

What gives the sitting president such authority, and why is it required?


Even if it is necessary so that the president could make decisions without the fear of court swaying him/her but does this not mean that he/she should not have the right or such supreme power that he could kill a person in Times Square and get away with it. This throws light on the fact that every power requires limitations because no one is above the law. Even the president is elected for the people, and hence this should make him liable for the wrongful actions that he takes against them. How can such power be checked, when he can claim security reasons and various nations have not even defined the term “flagrant crimes”.


For example- the legal text in Ireland says that the President is not answerable to anyone for his acts in the capacity of his office.[4] In my opinion, this can facilitate the protection of the president even if he or she does something wrong. On the other hand, had this been explained, it would have been more just for the people who choose their leader.

Any other authority higher than the president is the supreme court. Yet only that authority cannot be invoked when someone calls out the president’s actions or decisions. So, where does the person who mustered the guts to question the office of the president go? or does it show that the president is invincible and what happened to the fact of being of the people, by the people and most importantly for the people because the same people cannot even question the office?


Authority of the president means “legal powers with the president” and if misuse is found of those legal powers then, there is no other supreme authority than the court to call the president into question but there it is inadmissible. What sense does this make?

Does this mean that the president gets away with anything and everything? As a departmental head of the executive, it brings a fall in the whole machinery. Where does the stance of the concept of justice lie when it comes to such a higher authority and his questionable actions? Because if those actions cannot be “proved” under “high treason or flagrant crimes”, they are of no concern no matter how discriminatory they are. In my opinion, “actions” also constitute the use of words on a public stage, because it has been evident by the words of Mr Trump that words can make or break, and thus, regulations must be formed which check the words of a person with such power, because the personal freedom of “free speech” from such a powerful position brings its own harsh and damaging consequences, as evident by the events in the United States.


The question is whether criminal proceedings would take place against Mr Trump for the various undertakings of him, now that the immunity of the President no more protects him? The answer is a subjective standpoint, which can be explained through the following points,


● The charges for Capitol Hill violence are not proceeding because the Biden government would be depicted in a bad light if they institute criminal charges. Also, after the sequence of the unfolding of statements and events, there are no valid proofs yet which certify that his words “directly” incited the violence.


● The claims of sexual harassment, tax fraud, hush money [5] are still being investigated, and the discovery of evidence is supposed to take very much time, although it is the only respectable way out for Mr Trump.


He is considered the most controversial president of the US, as his words and actions lined up a series of events and happenings that impacted the social atmosphere of the nation and the perceptions of other countries. It depicted the fact that the public is concerned about who rules them, the kind of personality and the public care he imbibes in his words and actions for the nation as a whole and not only for his political supporters. The political vendetta is of no consideration if the basic concept of equality cannot be reflected from the person who is endowed with the massive responsibility of power and a post with the faith of millions. This factor is more essential in a presidential form of government rather than in a parliamentary form and therefore, the United States has been highlighted in this piece. The president is bestowed with the conviction and trust of the people and if he or she cannot build and would rather divide a nation, it is for the greater good that former presidents do not possess immunity from prosecution.






[1] Akhil Reed Amar and Brian C. Kalt, The Presidential Privilege Against Prosecution, Yale Education, digitalcommons.law.yale.edu > cgi > viewcontent.

[2] C Uday Bhaskar, January 6: a black day for US democracy, Hindustan Times (Jan 7, 2021, 7:41 PM), https://www.hindustantimes.com/analysis/january-6-a-black-day-for-us-democracy/stor-cc2G71x6YTCBaYGGuxOE3H.html. [3] Alexander Mallin and Luke Barr, FBI director says Capitol assault ’domestic terrorism’, no evidence of antifa, ABCNEWS (Mar. 3, 2021, 12:28 AM), https://abcnews.go.com/Politics/fbi-director-testifies-time-capitol-assault/story?id=76187365.

[4] 11gr. Stjórnarskrá lýðveldisins Íslands [Stjórnskipunarlög] [Icelandic Constitution], Lög 1944 nr 33 17 júní, http://www.althingi.is/lagas/146b/1944033.html, archived at https://perma.cc/5P4A-CDKW.

[5] Trump v. Vance, 941 F.3d 631, 635 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

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