Presidential Immunity: Who Are Those Immune?
By Counsellor Frederick A.B. Jayweh, Counsellor-At-Law
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?
Who Are Those Immune?
Under most Western and African constitutions, the President or Head of State is always vested with certain important and unrestricted political powers. In the exercise of such powers, the president is to use his or her own discretion. The president remains accountable to his or her country as its political agent. To support and to assist the president in the performance of his day-to-day duties and responsibilities, constitutionally, he or she is given the power and authority to appoint certain officers. These officers shall act by the president’s authority and in conformity with his or her orders. In such cases, these officers’ acts are the acts of the president, because, the officers are merely the president’s political organs, through whom the president’s will and pleasure are communicated and carried out. All those charged with the duties and responsibilities to carry out the expressed and implied political will of the president are immune from actual judicial review and adjudication when they are said to be acting politically and not as prescribed by law.
As political appointees of the executive branch of government, their actions are the actions of the president. Thus, any harm that might result from these appointments is only addressable politically and not legally because such appointments are at the will of the president. Consequently, when the president’s appointments are responsible for negative growth and development in his country, the president’s appointments cannot be affected by legislative or judicial review, but the country and people may judge the president and his officials during national elections. When acting politically and not as provided for and prescribed by law, all executive appointees’ actions can only be examined politically and not legally. This is the case because, as political agents of the president, their acts are covered and provided for under the political question doctrine which states that being political acts, they are non-justiciable and not reviewable by the courts. United States PAROLE Commission v. GERAGHTY, Baker v. Carr, and Powell v. McCormach, GOLDWATER v. CARTER, Chemerinsky: Constitutional Law, PP. 78-89, (2001). Furthermore, all executive appointees, when acting politically and according to the will of the president, they absolutely enjoy executive privilege and presidential immunity. Article II, Section I of the United States Constitution, and Articles 50, and 61 (a) of the Liberian Constitution.
However, when the laws or the legislatures of those countries proceed to impose on these same executive appointees other legally prescribed duties and responsibilities, the performance of which is dependent upon the enhancing or harming of public interests, these same political officers and executive appointees, must act consistent with and according to the laws of their nations. Furthermore, when these same executive officers are directed peremptorily by law whether in Africa or the West, to perform certain duties and responsibilities, the performance of which individual rights and responsibilities are dependent, the appointees must act consistent with and according to law. If they should refuse and fail to act and their failure harms the interests of the public and the rights of individual citizens, their actions, are subject to judicial review. Marbury v. Madison, 5 U.S. (1 Cranch) 1803, and Chemerinsky, Constitutional Law, PP.2-3.
From What Are They Immune?
When acting within the scope and limitation of his or her office and authority, a president needs not be under any apprehension about his or her official conduct in administering the affairs of State. A current or former president, when acting officially under the Office of the Presidency, cannot be held liable to arrest, prosecution, and imprisonment for acting in accordance with the law and in the compelling interest of his country and people. The same is true for all those who are politically appointed by the president to assist him or her to effectively administer the affairs of the State and government. But notwithstanding, when a current or former president and executive appointee acts for themselves and/or to simply protect their own personal and selfish interests and benefit, their actions are highly suspect and must be subjected to judicial review and adjudication. To determine the constitutional elements that enable a president and his or her political appointees to enjoy presidential immunity, it is important to firmly establish the conditions under which a president is immune, privilege and protected constitutionally. As provided by law, the executive power of the State shall be vested in a president, and he or she shall ensure that the laws are always faithfully executed and enforced at all times without any fear or favor. Thus, when a president and his or her political appointees act pursuant to the expressed or implied authorization of their country’s congress, their actions are presumed to be protected constitutionally. The president and his or her political appointees’ acts are immune and protected when they are acting politically and not legally and consistent compelling public interest.
There are both United States and African legal scholars who believe and affirm that a president of a nation enjoys presidential immunity because Articles II of the United States Constitution and 50 of Liberian Constitution which state that executive power of the State/Republic shall be vested in a president. According to these constitutional scholars and practitioners, because the executive power of the State is vested in a president, that president, whether current or former, has no restriction or limitation on what he or she can do. According to these scholars and practitioners, a president and executive officials enjoy inherent and unlimited presidential immunity when they act within the scope and limitation of the laws of their countries. However by law and under every democratically constructed constitution, only presidential deliberations and communications that contain military and national security secrets and diplomatic interactions are absolutely immune and protected constitutionally. Therefore, only a president and his or her appointees’ actions in relation to compelling military and national security or diplomatic interests of their country are protected constitutionally. Anything short of this scope, has no executive privilege or immunity. Chemerinsky, The Federal Executive Power, PP 231-246, and the Liberian Constitution Articles 50 and 61 (a). Furthermore, presidential immunity will not be guaranteed when a current or former president acts unlawfully, unofficially, and according to his personal interests.
Who Are Not Immune?
The two primary questions central to this paper and need to be reviewed and adjudicated are:
- When acting as the President of the United States of America, are all the acts and actions of a president absolutely immune and protected under the Constitution of the United States of America?
- As the former Transitional Chairman or president of the Government of Liberia, are all acts and actions of the President of Liberia immune and protected by the Constitution of Liberia?
In the two cases presented previously, the deliberations and communications of a president were considered by him to be absolutely immune and protected under the Constitution of his country. Others have also argued that when acting within the scope and limitation of the Office of the Presidency, a president needs not be subjected to arrest, detention, and prosecution if his or her day-to-day duties and responsibilities are carried out in the interest of the nation and people. However, are current and former presidents protected by their Constitutions when their acts and actions fall outside of the scope and limitation of the Office of the Presidency? Do the actions of current and former presidents enjoy presidential immunity when their acts do not concern military and national security communications and/or diplomatic secrets or interactions?
To enjoy presidential immunity, the discussions, deliberations, and communications of a president must pertain to military and national security interests or be related to diplomatic discussions and communications. Presidential immunity does not extend outside of this scope. With that said, the United States Congress has the power to subpoena to investigate why the services of the eight United States Attorneys were terminated and by whom. Such termination has no presidential immunity because its falls outside the political action of the President of the United States.
For a current or former President of the Republic of Liberia to successfully be protected by presidential immunity in Liberia, he or she must have been elected president of the Republic of Liberia by the citizens of Liberia. Article 50 (b) of the Liberian Constitution relative to the election of the President of Liberia, PP. 14 or 27. Was Mr. Charles G. Bryant from 2003 to 2005 elected President of the Republic of Liberia by the Citizens and People Liberia? To be selected as the Transitional Chairman of the Transitional Government the Republic of Liberia, Mr. Charles G. Bryant and the Parties to the Liberian Civil Conflict met and extra-constitutionally agreed:
- That an extra-Constitutional government, known and referred to as the National Transitional Government of the Republic of Liberia, (NTGL) be established to replace the then elected government of Liberia; the 1997 elected government of President Charles G. Taylor;
- That all the provisions of the Constitution of the Republic of Liberia, the Statutes, and all other Liberian Laws which related to the establishment, composition, and the powers of the executive, legislative, and the judicial branches of the elected government of the Republic of Liberia in 1997, be suspended from 2003 to 2005;
- That to avoid any doubt, any and all relevant provisions of the Liberian Constitution, the Statutes, and all other Liberian laws which were inconsistent with the provisions of the Comprehensive Peace Agreement should be and was also suspended from 2003 to 2005;
- That all the suspended provisions of the Liberian Constitution, the Statutes, and all other laws of Liberia affected as the result of the creation of the Transitional Government of Liberia shall be deemed restored with the inauguration of the elected government of Liberia by January 2006. The 2003 Accra Peace Agreement between the Government of Liberia, and the Liberian United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and the Political Parties, PP 17 of 19, dated August 18, 2003.
After intentionally committing himself to the above provisions of the Comprehensive Peace Agreement relative to the composition, establishment, and the powers of the executive, legislative, and the judicial branches of the government of Liberia, could Mr. Charles G. Bryant still successfully claim presidential immunity to protect him from being prosecuted for allegedly committing the Crime of Economic Sabotage and Property Theft in the Republic of Liberia?
These extra-constitutional arrangements and unconstitutional provisions totally bar any claim of constitutional privilege and presidential immunity; whether it is done in America or Africa
There is no argument that when acting under the scope of the Office of the Presidency, a president, whether current or former, needs not be held criminally liable, arrested, detained, and prosecuted for acting specifically and in the compelling interest of his or her nation and people. As a matter of law and policy, when administering the affairs of his or her State and government, a president need not be under any apprehension relative to the motive that controls the president’s conduct when acting officially and in the interest of his or her country and people. Under these circumstances, presidential immunity applies. As such, a president is said to be always protected by the Constitution from criminal or civil prosecution when acting in the compelling of his nation.
It may be argued that a president cannot be liable to arrest, imprisonment, or detention while he or she is in the official discharge of the duties and responsibilities of the Office of the Presidency. A president, whether serving within the jurisdiction of a West or Africa, alone embodies the authority and power bestowed on him or her by the electorate of his or her country. Hence to cause a president to be subjected to arrest, detention, and prosecution, the nature and gravity of the crime that he or she is called upon to appear and answer to must be so severe to cause his or her entire nation and people to openly condemn the actions and acts as unconstitutional.
Nevertheless, the intents and purposes of the criminal justice system of any country are twofold: the guilty should not be permitted to escape justice nor should the innocent be allowed to suffer injustice. To ensure that justice is evenhanded, governments of the Republic of Liberia and Africa shall promote and uphold the rule of law and ensure human rights compliance in Africa. All reported criminal defendants deserve to be arrested, detained, or prosecuted for committing economic sabotage or theft of property. Under Article 61(b) of the Liberian Constitution, the President of Liberia shall not be immune from prosecution for reportedly committing a criminal offense against Liberia and its people while in office and serving as President.
Whether it be committed in the Western World or in Africa, the unlawful action (s) of a president enjoys no immunity or constitutional protection.