The Insane Democratic Problem Behind Donald Trumps Immunity Issue

“The Insane Democratic Problem” Behind Donald Trump’s Immunity Issue

Untouchable or not untouchable? This question is currently being asked in the USA about Donald Trump. The former president is trying to play the immunity card to avoid the legal challenges hanging over him, particularly in light of his multiple attempts to overturn the results of the 2020 presidential election, originally scheduled for March 4.

After the Washington appeals court's rejection, the Supreme Court said it would hear the matter on Wednesday. In which cases does the question of criminal immunity arise? How can this decision benefit Donald Trump? What is at stake in this question of impunity? Behind the Supreme Court's decision there is “an enormous democratic constitutional question,” answers Nicole Bacharan, historian and political scientist, specialist in politics and American society.

What are we talking about?

Donald Trump is the subject of numerous investigations, three of which concern legal cases related to his presidency: his role in the storming of the Capitol on January 6, 2021 and an alleged attempted election fraud in Georgia, which is a series of illegal attempts to overturn the results of the Election 2020 and his negligent handling of confidential documents. In these three cases, which must lead to three trials, the former American president wants to assert his presidential immunity. His lawyers argue that Donald Trump was president and is therefore covered by this immunity.

The appeals court's three judges rejected that argument in early February: “For purposes of this criminal case, former President Trump became Citizen Trump, with the same protections as any other defendant.” »

For this reason, the Republican candidate's lawyer referred the matter to the Supreme Court, which in France is roughly equivalent to a compilation of the Council of State, the Constitutional Council and the Court of Cassation. This highest court in the country, consisting of nine justices, including six conservatives, therefore decided to decide the question against the advice of special counsel Jack Smith, who is investigating the case.

Why does the Supreme Court decision suit Donald Trump?

With this confiscation, Donald Trump is primarily playing for time so that he doesn't have to appear before the next election in November. Because the Supreme Court's decision overrides the Court of Appeal's decision. The court will hear the briefs the week of April 22, setting the stage for a decision in May or even June. This further reduces the chances that the trial can take place before the 2024 presidential election. “Following the Supreme Court's decision, there are still many formalities that need to be completed before a trial can take place, which in the best case scenario will not take place before September or October.” Scenario, therefore the possibility that there will be a trial before November 5th And even more so, a conviction is becoming increasingly unlikely,” explains Nicole Bacharan.

“It is a victory for Trump because his strategy is precisely to buy time and withdraw as much as possible,” he says in a direct conversation with the judiciary, “so as not to be embarrassed in the election campaign,” analyzes Laurence Nardon , head of the Americas campaign program at the French Institute of International Relations (Ifri). Furthermore, if he is elected and the trial does not take place until after he takes power, he will actually regain his presidential immunity and could order the federal case against him to be dropped after he takes office in January 2025. Donald Trump has already mentioned the possibility of granting himself a presidential pardon. “If he pardons himself, even if it is unconstitutional, there will be no binding authority to stop him,” Nicole Bacharan further warns.

Why is American democracy at stake?

If the Supreme Court disagrees with the appeals court and finds that presidential immunity protects the former White House tenant, there will be no trial. But it seems difficult to imagine. If we take the logic to its extreme, “this would actually mean that a president can have an opponent killed without being prosecuted, it is a crazy democratic problem,” believes Laurence Nardon.

“If Donald Trump, and by extension any president, can fall under presidential immunity for criminal conduct, in his case for the purpose of remaining in power, the American rule of law would no longer exist,” said Nicole Bacharan. Especially since this decision would immediately set a precedent, thereby setting an unprecedented and dangerous precedent for the future. “It is a fundamental democratic principle: a sitting president cannot do whatever he wants,” emphasizes Laurence Nardon.

Suspension, the other question that concerns the judges

Especially since the Supreme Court is dealing with another issue regarding Donald Trump: his ineligibility to run for the next presidential election. At issue are his charges of “conspiracy against the American state,” obstruction of an official proceeding and violation of voting rights in connection with the attack on the Capitol, which he at best permitted and at worst encouraged.

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The nine judges of the highest court will have to draw conclusions on this issue in the coming weeks. It remains to be seen whether the Supreme Court alone will decide on the legal question. Because even if they shouldn't interfere in politics, they sometimes do, warns Laurence Nardon.