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Presidential Immunity: Who Are Immune And Who Are Not?

By:
Counselor Frederick A.B. Jayweh, B.A., LL.B., LL.M
(March  25, 2008)

Recently among 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 protected?

Arguments for Absolute Presidential Immunity

On the one hand, many Western and African political leaders are arguing that for a nation’s president to have the power to successfully conduct the affairs of his or her country, he or she has to have absolute, presumptive immunity. In exercising the duties and responsibilities of his or her office, a president of any country needs to have unlimited, absolute immunity from all civil and criminal suits.  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 lend the judiciary the power to adjudicate the official or unofficial acts of a president is unlawful under the constitution.  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 absolute presidential immunity contend that constitutionally, the legislative, judiciary, 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. Please see 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, this issue has always been, and remains, contentious because there are also many who believe in the doctrine of limited presidential power and control in a nation. Historically, presidential privilege has always conflicted with the doctrine of separate but equal distribution of powers amongst the legislative, judicial, and executive branches of government. Those who believe in and support the doctrine of the separation of powers have argued that the powers of the legislative, judicial, and executive 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 presidential power and restricted privilege further argue that while the Constitution distributes and diffuses powers amongst the legislative, judicial, and executive branches of a nation’s government in order to better secure liberty and justice, 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 power to a president.   Allowing a president to have absolute power could conflict with the provision of equal justice 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 other government officials are also subject to the same laws that apply to all citizens.

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 say what the law is.  Therefore, the legislative, judicial, and executive branches of a government must always act as checks and balances of a former or current president’s acts. 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. Please see Marbury v. Madison (1803), Baker v. Carr, Youngstown Sheet & Tube Co v. Sawyer, Article III, Sections, I and II, P15, and the Liberian Constitution Articles 65 and 66.

Cases 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., the United States Congress has threatened to issue 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 to be 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”, meaning a subpoena that orders a witness to appear and to testify relative to his certain knowledge about a particular matter and a subpoena that orders a witness to produce certain written documents that are about a particular case.

With these two subpoenas, Congress is determined to establish whether the eight United States attorneys were fired for political reasons.  If so, Congress wants to determine whether a crime was committed and if so, who committed it.  To date, the Bush administration has openly 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 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. Bush’s administration claims 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 appear and testify under oath before Congress about the propriety or impropriety of the firing of the eight United States attorneys continues to be debated by both the Bush’s 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 constitutionally protect from judicial review and legislative adjudication?  
 
The Bush Administration is arguing that the firing of eight U.S. Attorneys by the offices of the Attorney General of the United States of America is an action of the President of the United States of America.  As such, the action, regardless of whether or not it is acceptable, cannot be brought into questioning by the judicial or legislative branches of the government.  President George W. Bush and his actions are constitutionally protected.    Please see 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, yet not elected, 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 is today charged with committing economic sabotage. To this charge, Mr. Bryant claims presidential privilege and absolute immunity. According to him, since he was president at the time of the infraction, no court has the power to question him or his action.

In his petition to prohibit the government of Liberia from prosecuting him, Chairman Charles G. Bryant admits to taking the money; however, he contends that at the time, he had presidential privilege and constitutional immunity. As such, the Republic of Liberia’s government does not have the authority to prosecute him.  Mr. Bryant argues that all of his actions from 2003 to 2005 are protected under the Constitution of Liberia and that he cannot be arrested, charged, or prosecuted because he acted under the scope of the Office of the Presidency of the Republic of Liberia.

As Chairman of the transitional government of the Republic of Liberia, were all actions taken by Mr. Charles G. Bryant between 2003 and 2005 absolutely immune and protected?

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 is the elected and current President of the United States of America while Mr. Charles G. Bryant is a criminal defendant before the courts of the Republic Liberia charged with the crime of economic sabotage.

Are Mr. Bryant and all his actions from 2003 to 2005 immune and protected under the Constitution of Liberia? If so, what is presidential immunity, who is immune, and from what are they immune?  

What is Presidential Immunity?

Regardless of serving in the affluent Western World or on the troubled continent of Africa, presidents have always contended that the Office of the President is a special and unique office. They argue 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 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 enjoys executive privilege with presidential immunity. What is presidential immunity?

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. Please see 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 communication which serves the general 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. Please see 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 shall take care that the laws of the country are faithfully ensured and executed. 

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 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 who are 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 legislative 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 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 a court. Please see 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, enjoy executive privilege and presidential immunity.  Please see Article II, Section I of the United States Constitution, and Articles 50, and 61 (a) of the Liberian Constitution.

However, when the law or the legislature of their country proceeds 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 nation. Furthermore, when these same executive officers are directed peremptorily by law 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 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 and adjudication. Please see 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 or 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.

However, when a current or former president and executive appointees act for themselves or to 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 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 carried out 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 the country’s congress, their acts are said to be protected constitutionally. The president’s and his or her political appointees’ acts are immune and protected when they are acting politically and not legally.              

There are both United States and Liberian 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 enjoys inherent and unlimited presidential immunity. 

However, by law and under every democratically constructed constitution, only presidential deliberation and communication 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 interest of their country are protected constitutionally.  Anything short of this scope has no executive privilege or immunity. Please see: 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 own or her personal interests.


Who is not Immune?

The two primary questions central to this paper or article are:

1. 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?

2.  As the former Transitional Chairman of the Transitional Government of Liberia, are all acts and actions of Mr. Charles G. Bryant 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 interest 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.

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. Please see 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 agreed:

1. 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 with the government of Mr. Charles G. Bryant.

2. That all the provisions of the Constitution of the Republic of Liberia, the Statutes, and all other Liberian Laws which relate to the establishment, composition, and the powers of  the executive, legislative, and the judicial branches of the government of the Republic of Liberia are suspended from 2003 to 2005.

3. 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 were also suspended from 2003 to 2005.

4. 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. Please see The 2003 Accra Peace Agreement between the Government of Liberia, and the Liberians 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 in Liberia?

In Liberia, a person is guilty of economic sabotage, a first degree felony, if he or she:

1) Knowingly conspires or colludes to defraud the government of Liberia;

2)  Knowingly makes an opportunity for another person to defraud the government of Liberia or another;

3) Knowingly does or omits to act to prevent another from defrauding the government of Liberia;

4) Knowingly makes or signs any fraudulent entry in any book or record of any Ministry or Agency of government or signs any fraudulent certificate, return or statement; or

5)  Knowingly demands greater sums than authorized by law or receives any fees, compensation, or reward for the performance of any duty except compensation from the government of Liberia. Please see the Liberian Code of Law Reversed, vol. IV, titles17-26, Section, 15.80, Subchapter “F” Economic Sabotage, a-h, PP 831-832.

Conclusion

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 needs 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.

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 Western or African nation, 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 subject 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.

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, the government of the Republic of Liberia should promote and uphold the rule of law in Liberia.  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 committing a criminal offense while in office. For doing, a president can be arrested, detained, and prosecuted. 

Let Mr. Charles G. Bryant and all those who cheat Liberia and the people of Liberia of their most needed revenue and finances be arrested, detained, and prosecuted. Presidential immunity or privilege does not apply in the case of economic sabotage. 

Let the Republic of Liberia be a country of laws and not a country of personalities!

 


ABOUT THE AUTHOR: Counselor Frederick A. B. Jayweh holds B. A., LL. B. and LL. M. degrees from the African Bible College in Liberia; the Louis Arthur Grimes School of Law, University of Liberia; and the University of Denver College of Law, University of Denver. He is the former Executive Director of the Civil Rights Association of Liberian Lawyers, Inc.; future Executive Director of the Association of Liberian Lawyers in the Americas (ALLA); and a former Magisterial Judge of the Monrovia City Court, Republic of Liberia. Currently, Counselor Jayweh lives and works in Denver, Colorado in the United States of America.  He can be reached via e-mail at fjayweh@hotmail.com or by cell phone at (303) 884-2652.