Presidential Immunity: Who Are Those Immune? Part I

Presidential Immunity: Who Are Those Immune?

By Counselor Frederick A.B. Jayweh, Counselor-At-Law
Part I

Recently amongst Western and African leaders in political and legal circles, presidential immunity has become a critical issue for debate. The question is whether the official as well as unofficial actions of presidents (both elected and unelected) are constitutionally and always protected?

Arguments for Absolute Presidential Immunity

On the one hand, many Western and African political leaders are arguing that for a nations’ president to have the power to successfully conduct the affairs of his or her country, he or she has to have absolute and presumptive immunity. In exercising the duties and responsibilities of his or her office, the president of a country needs to have unlimited and absolute immunity from all civil and criminal litigations. The successful conduct of the office of the presidency requires presidential privilege and absolute immunity. In keeping within the scope and limitation of his or her authority and office, a president needs not be under any apprehension relative to the motive that controls his or her official or unofficial conduct in administering the affairs of the State. That is, when acting as the president, the conduct of a president needs not and should never become a subject of judicial review. Any attempt to question the conduct of a president will cripple the proper and effective administration of the State. To have the judiciary to review and adjudicate the official or unofficial actions of a president is unlawful under the constitutional system of governance.  Hence, a president needs not and must never become restrained by any law or made accountable to any court to answer to any civil or criminal action for his or her official and unofficial actions. To act otherwise will amount to a flagrant violation of the constitution of a state or nation. Presumptive and absolute immunity is representative of good governance in any state.  Those in support of presidential immunity contend that constitutionally, the legislative, judicial, and executive branches of a government are independent and should remain independent of each other at all times. Therefore, the actions of current and former presidents cannot be questioned by any court. Spalding v. Vilas (1869), Clinton v. Jones, Nixon v. Fitzgerald (1982), and Article 61(a) of the Liberian Constitution, (1986), relative to Presidential and Immunity.

Arguments against Absolute Presidential Immunity

While many people believe in absolute presidential immunity, the issue has always been, and remains, contentious because there are also many who believe in a doctrine of limited presidential power and control in a nation. Historically, presidential privilege has conflicted with the doctrine of separate but equal distribution of powers amongst the legislative, judicial, executive and judicial branches of government. Those who believe in and support the doctrine of the separation of powers have argued that the powers of the legislative, executive and judicial branches of a government constitutionally are separated but must remain coordinated and distributed equally amongst the three branches of government. Anything short of this shall woefully amount to the abuse of power by a president.  Advocates of limited and restricted presidential power and restricted privilege further argue that while the Constitution distributes and diffuses powers amongst the legislative, executive and judicial branches of a nation’s government in order to better secure liberty and justice and equality, it also commands coordination and interdependence amongst the three separate but equal branches of government for the purpose of equal justice and better governance. The doctrine of separation of powers conflicts with the granting of absolute and unrestricted powers to a president.  Allowing a president to have absolute power, unrestricted privilege, and immunity could conflict with the provision of equal justice, the development of the rule of law, and human rights in any developed and developing society.  It could be a troubling and terrifying environment if unrestricted and unchecked powers were to be granted to a former or current president. Therefore, there must always be checks and balances on the powers of a president regardless of if he or she is a president of the Western World or in the troubled environment of Africa.  The president and all government officials must also be subjected to the same laws applied to the people and citizens of his homeland. This will always avoid national confusion and chaos.

Since granting unlimited and unchecked powers to a president cannot be accounted for and sustained under the doctrine of the separation of powers, there is no precedent for such occurrence.  Some argue that to compel a current or former president to appear before a court to account for his or her unofficial and unlawful actions might appear to leave a nation and its executive branch of government without a president.  However, it is the power and province of the courts to conduct judicial review or say what the law is.  Therefore, the legislative, executive, and judicial branches of a government must always act as checks and balances on the powers of a former or current president. Anything short of this, is equal to asking a nation, Western or African, to place its president above the rule of law, equal justice, and the respect for human rights. Marbury v. Madison (1803), Baker v. Carr, Youngstown Sheet, Tube Co v. Sawyer, Article III, Sections, I and II, P15, and the 1986 Constitution of the Republic of Liberia, Articles 65 and 66.

Where Presidential Immunity Has Been Claimed

Whether or not a current or former president should be granted absolute and unlimited presidential powers can be reviewed under two different cases: US Congress v. George W.  Bush, the President of the United States of America, and Charles G. Bryant v. The Republic of Liberia. These two cases, though factually and significantly different, highlight the same question – whether a president should be granted unlimited presidential powers to administer the affairs of the State.

In Washington, D.C., and during the Gorge Walker Bush’s era, the United States Congress issued two separate subpoenas for some of President George W. Bush’s advisors to appear and testify under oath before Congress about their knowledge of how and why the services of eight United States attorneys were terminated. Additionally, a subpoena was issued stating that these advisors produce written documents about this issue. In law, these subpoenas are known as Subpoena “ad testificandum, and Subpoena discus tecum”; a subpoena that always orders a witness to appear and to testify relative to his certain knowledge about a particular matter pending before a court or an administrative body, and a subpoena that for the most part that orders a witness to produce certain written documents, books and papers that pertain to a particular case pending and held under his or control or in his or her custody. These subpoenas when issued, must be answered to.

With these two subpoenas, Congress was determined to establish whether the eight United States attorneys were fired for political reasons.  If so, Congress wanted to determine whether a crime was committed and if so, who committed it.  To date, the Bush administration openly refused and embraced the doctrine of presidential immunity and constitutional protection to shield itself from any judicial review or legislative adjudication. Under this doctrine, all matters discussed and resolved by the United States’ President and his advisors are considered to be constitutionally immune and protected under the Constitution of the United States of America. As such, discussions, conclusions, and holdings reached by the President and his advisors shall not and are never to be disclosed; not to the legislative or judicial branch of government or to the American public. The Bush’s administration claimed that all discussions, communications, and deliberations of the President of the United States of America, enjoy presumptive and absolute presidential immunity and that constitutionally, there is nothing more to be discussed, debated, and concluded.

The battle as to whether President George W. Bush’s advisors should have appeared and testified under oath before Congress about the propriety or impropriety of the firing of the eight United States Attorneys remained debated by both the Bush administration and the United States Congress.  Should a president enjoy absolute and unrestricted immunity?  And if so, may his or her official and unofficial actions be always constitutionally protected from judicial review?

Precisely this form and type of questioning, equally applies to Africa and the people of Africa.

The Bush Administration argued that the firing of the eight U.S. Attorneys questioned by the United States Congress, and fired by offices of the Attorney General of the United States of America, is an action of the President of the United States.  As such, this action, regardless of whether or not it is acceptable, cannot be brought into questioning by the judicial or legislative branch of the government.  President George W. Bush and his actions were constitutionally protected. Article II, Section 1 of the Constitution of the United States of American, PP 11, United States v. Nixon, 418 U.S. 683 (1974), and Chemerinsky: Constitutional Law, PP.240-245.

In Monrovia, Liberia, the arrest and desire to prosecute Mr. Charles G. Bryant and his associates for allegedly committing economic sabotage and property theft raises a similar issue. Mr. Charles G. Bryant was the selected interim Chairman of the Transitional Government of Liberia from 2003 to 2005. As stated in the Liberian government’s arresting orders and indictment, while serving as the chairman of the transitional government of Liberia, Mr. Charles G. Bryant, purportedly stole a little over US$1,000,000 from the coffers of the Republic of Liberia. For this alleged act, Mr. Charles G. Bryant was charged with committing economic sabotage. To this charge, Mr. Bryant claims presidential privilege and absolute immunity. According to him, since he was the President of Liberia at the time of the infraction, no court has the power to question him.

In his petition to prohibit the government of Liberia from prosecuting him, Mr. Charles G. Bryant confessed to taking the money; however, he contended that at the time, he had presidential privilege and constitutional immunity. As such, the Government didn’t have the authority to prosecute him.  Mr. Bryant argued then that all of his actions from 2003 to 2005 were protected under the Constitution of Liberia and so, he couldn’t be arrested, charged, or prosecuted because he acted under the scope and confine of the Office of the Presidency of Liberia.

There is a significant difference between Mr. George W. Bush of the United States of America and Mr. Charles G. Bryant of the Republic of Liberia.  Mr. George W. Bush was constitutionally elected President of the United States of America, while Mr. Charles G. Bryant was handpicked, outside of the Constitution and the Statutory Laws of the Republic of Liberia to serve as the transitional Chairman from 2003 to 2005. To-date, Mr. George W. Bush was the elected and President of the United States of America, and Mr. Charles G. Bryant was a criminal defendant indicted and before the Courts of Liberia charged then with the Crime of Economic Sabotage.

Were Mr. Bryant and all his actions from 2003 to 2005 while serving as transitional president of Liberia, immune and protected under the Constitution of Liberia? Whether they be actions of omission or of deliberation commission, are all actions of Presidents in the West or Africa, always constitutionally privileged and immune from administrative, legislative, and judicial review? 

What is Presidential Immunity?

Whether serving in the affluent Western World or on the Continent of Africa, Presidents have always contended that the Office of the President is a special and unique office. They have argued that the Office of the President has immense and enormous powers and responsibilities.  These powers and responsibilities are so vast and important that the president must always direct his or her undivided time and attention to his or her duties and responsibilities for the sake of protecting the interest of the public. For this reason, both Western and African Presidents have always argued and claimed that the official and unofficial acts of a president cannot be questioned by the judicial or the legislative branch of government because the president always enjoys executive privilege with presidential immunity. What is presidential immunity? In Africa, this case is made strongest.

Presidential immunity, is the power and authority that a president has to declare that his or her discussions, deliberations, and communications are confidential and secret.  As such, presidential deliberations and communications are protected by the Constitution from the public. United States v. Nixon, (1974), Nixon v. Fitzgerald, Baker v. Carr, Clinton v. Jones and Article 61 (a) of the Liberian Constitution relative to Executive Privilege and Presidential immunity.

Historically, discussions, deliberations, and communications carried out by and under the auspices of the Office of the President are usually privileged and protected by the Constitution. These discussions and deliberations are immune if they are specifically conducted within the scope and limitation of the Office of the President. To be privileged and protected under the Constitution, a presidential communication and deliberation must be official, specific, and serve a compelling public and national interest.  Unofficial and vague communications, discussions and deliberations that serve the general, narrow or personal interest of a president is not protected.  Furthermore, for presidential immunity to apply, a current or former president must be acting within the scope of the Office of the Presidency and under the expressed or implied authorization of Congress.  When the president acts pursuant to the expressed or implied power delegated to him or her by the country’s legislature, the president’s acts are at their maximum protection under the Constitution. Youngtown Sheet & Tube CO. v. Sawyer 343 U.S. 579 (1952), and Constitutional Law by Chemerinsky, PP 232-342.  Constitutionally, the executive power of the state is vested in a president, and he or she must take care that the laws of the country are always faithfully executed.