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Writer's pictureAndrea Pantazi
Jul 28, 20249 min read

Trump’s Absolute Immunity: The International Implications of the US Supreme Court’s Decision on Trump’s January 6th Actions

Introduction

In a landmark 6 to 3 decision, the US Supreme Court on July 1 2024, has made it not only certain that former president Donald Trump will not face trial before the upcoming November presidential elections, but has also made it so that Trump has “absolute immunity” from criminal prosecution for the actions he took while in office, as they are now formally recognized as “official acts”.[1] However, many have critiqued this decision as the actions in question were taken during the January 6th insurrection in Washington D.C., where Trump conspired to engage in election fraud by attempting to overthrow the votes being counted in Washington D.C.[2] In such an influential and powerful state as the US, major judicial decisions such as these have the power to impact the international community. Accordingly, this article will explore the broader implications on how this US Supreme Court decision affects international law.


Background: Trump’s Federal Charges in Question

During the attack in question, a mob of Trump supporters swarmed and invaded the capital in order to prevent a joint Congressional meeting with the Electoral College counting the votes and formalizing President Joe Biden’s win of the 2020 elections. Trump’s actions on the day of January 6th were analyzed by the courts, including his statements in the morning to a group of his supporters near the White House to “fight like hell” and to march to the Capital.[3]Trump had reiterated how the election loss was supposedly false to his supporters, and did not publicly condemn the acts in question nor directly deploy the national guard to contain the mob. [4]In fact, in a series of tweets, Trump posted things like “Get smart Republicans. FIGHT!” and referenced the electoral vote count as a “fake voter tabulation process”. [5] As a result of these actions, during the attack on the capital there was reported a breach of security, vandalism, and the deaths of five people including an officer. [6][7]

This was the subject of an impeachment trial held by the House of Representatives in January of 2021, where Trump was charged with the “incitement of insurrection”. In US domestic law, this falls under provision 18 U.S.C. § 2383, which states that it is a federal crime to incite, assist or engage in any rebellion or insurrection against the US or its laws. 7 However, Trump was ultimately acquitted, and therefore not impeached because the US Senate did not reach a ⅔ majority.[8] Other ongoing criminal investigations also are taking place focusing on the incitement of violence, obstruction of justice and dereliction of duty. [9] However, the decision in question was made by the US Supreme Court on July 15, 2024, where Trump’s actions were described as constituting “official acts” of the President. Therefore, he is absolutely immune from criminal prosecution related to these acts. [10]

Many legal experts and US politicians have criticized this controversial decision. For example, the President of the American Bar Association stated that “the principle of ‘no man above the law’ dates back more than 800 years to the Magna Carta. While prosecuting a president for his actions can present challenges and the Constitution gives a president specific powers on which to act, it is important to realize that public confidence and trust in our legal and judicial system is dependent on equal treatment”. [11] US Politician Alexandria Ocasio-Cortez added to this discourse by tweeting shortly after the decision that the US Supreme Court itself has been “consumed by a corruption crisis” reflected by this decision, as it notably has a strong conservative sway. [12] The remaining three liberal justices out of the nine in the US Supreme Court, Sonia Sotomayor, Elena Kagan, and Ketanju Brown Jackson, delivered their dissent to the decision stating that the ruling “effectively creates a law-free zone around the president”. [13]Furthermore, sitting President Joe Biden noted how this ruling is “‘a dangerous precedent’ because the power of the presidency will no longer be constrained by the law”. 14


What is the difference between domestic immunities and international immunities?

It should be noted that the domestic definition of immunity applied to Trump in this Supreme Court decision differs from international definitions of immunity, although they share the same basic concept protecting a figure of state from criminal persecution. The concept of immunity is represented in international law through sovereign immunity and diplomatic immunity. [14] The purpose of these immunities is to generally maintain stability and international order, by recognizing each state’s sovereignty. [15] These ideas are considered customary international law, and are also codified in the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963). [16]

On the other hand, in domestic immunities the concept of immunity is primarily derived from the principle that a sitting president should be able to perform their duties so that the executive branch can function effectively, without fear of legal implications within the state itself. The immunity of the President of the United States has been a topic debated in the US historically. In Nixon v. Fitzgerald (1982) the immunity from civil acts was discussed. This was a pivotal case which led to the decision to grant absolute immunity to the President for official acts.[17] This influences the recent Supreme Court decision, which applied this definition ‘official acts’ to Trump, resulting in his absolute immunity from his actions on January 6th. However, in Clinton v. Jones (1997), the Supreme Court specified that a sitting president doesn’t have immunity for acts done before taking office, or those which are unrelated to official acts. [18]


How is this relevant to international law?

The recent US Supreme Court decision is relevant with both the concept of accountability in international law and international human rights law.

Firstly, domestic US legal decisions concerning the immunity of heads of state can lay down the precedent to change international norms on accountability. [19]According to the Centre for Law and Democracy, many different countries have “very different systems in place for ensuring accountability. At the same time, it is clear that there is a strong international law foundation for accountability”. [20] These foundations for accountability of heads of state can be seen on the international level in the International Criminal Court (ICC) and the International Court of Justice (ICJ) with cases such as The Prosecutor v. Omar Hassan Ahmad Al Bashir (2008) where it was the first time the ICC charged a sitting head of state. [21] In Belgium v. Senegal (2012), the ICJ was brought a request by Belgium to prosecutie the former president of Chad, Hissene Habre. [22] Furthermore, major international criminal law instruments such as the Rome Statute itself emphasizes the accountability for leaders. [23] Although these cases focus on grave violations to international law, this principle is relevant to criminal proceedings of heads of state worldwide.

Moreover, the principle of accountability can be seen in domestic courts globally, such as in Brazil, where former President Luiz Inacio Lula de Silva was convicted and sentenced to 12 years in prison for money laundering and corruption.[24] In South Africa, former President Jacob Zuma also is in an ongoing trial because of his many corruption scandals during his presidency.[25]In the US itself, two presidents have been put on trial, Bill Clinton for perjury and obstruction of justice and Richard Nixon, for the infamous Watergate scandal. [26] Although these presidents were ultimately not formally tried or were acquitted, these instances exemplify the precedent set for holding heads of state responsible in domestic law. Over time, state practices contribute to the development of customary law, as it is composed of general state practice and opinio juris. [27]

International human rights law is also relevant to Trump’s January 6th actions. For example, Art. 20 of the International Covenant on Civil and Political Rights (ICCPR) explicitly states that rhetoric that incites violence among groups is prohibited. Moreover, Art. 21 ICCPR protects the right to peaceful assembly, which also implies violent ones are not protected by the ICCPR. Art. 3 Universal Declaration of Human Rights (UHDR) states that “everyone has the right to life, liberty and security of person.” By failing to deploy stronger guards against the mob resulting in five deaths, Trump effectively violated this provision. Lastly, as a result of inciting the mob on January 6th to overturn the fair count of the votes for the presidential elections, Art. 21 UDHR was also violated. Art. 21 UDHR states that “the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” The US has signed both the UDHR and ratified the ICCPR, and is thus legally obligated to these provisions. [28]

Various UN bodies, such as the UN Human Rights Council’s Universal Periodic Review (UPR) both monitor and report on human rights violations, calling for accountability. The 2020 UPR report states that “judicial proceedings at all levels of government also provide invaluable interpretive guidance legal precedent”, as the US is a federal republic in which “its “human rights obligations are implemented through” laws, regulations and enforcement actions such as the judicial branch. 30 This recent Supreme Court decision therefore has an influence over the international human rights law implementation with the USA. Nevertheless, other human rights bodies such as Human Rights Watch have reported how the US Supreme Court has “increasingly issued rulings undermining rights protections”.[29] This decision therefore represents an ongoing trend of controversial decisions against human rights law by the US Supreme Court, a highly influential branch of the US government.


Conclusion

Domestic decisions, especially ones done by such a powerful country in today's global political environment, have ramifications internationally. The recent US Supreme Court's decision to identify Trump's deliberate decision to incite a mob to overturn election results as an “official act” sets a dangerous precedent not only for the American government, but also for its citizens and the international community as a whole. By waving the serious violations of the law by a head of state, the US Supreme Court has effectively threatened the principle of accountability and international human rights law worldwide.


Reference List:

[1] Trump v United States, No. 23–939, slip op at 1 (US, 1 July 2024)

[2] Tierney Sneed, 'Takeaways from the Supreme Court’s Decision on January 6 Obstruction Charges Against Donald Trump' CNN (28 June 2024)

[3] NPR, 'Read Trump's Jan. 6 Speech, A Key Part of Impeachment Trial' (10 February 2021)

[4] Ibid.

[5] The American Presidency Project, 'Tweets of January 6, 2021' (UCSB)

[6] Luke Broadwater and Alan Feuer, 'These Are the People Who Died in Connection With the Capitol Riot' The New York Times (5 January 2022) <https://www.nytimes.com/2022/01/05/us/politics/jan-6-capitol-deaths.html> accessed 11 July 2024.

[7] USC § 2383 (2018) (USA).

[8] Joan E Greve and Lauren Gambino, 'Donald Trump Acquitted in Second Impeachment Trial' The Guardian (13 February 2021) <https://www.theguardian.com/us-news/2021/feb/13/donald-trump-acquitted-impeachment-trial> accessed 11 July 2024.

[9] AP News, 'Tracking the Trump Investigations: An Interactive Guide to Civil and Criminal Cases Against the Former President' (AP News) <https://apnews.com/projects/trump-investigations-civil-criminal-tracker/> accessed 11 July 2024.

[10] Trump v United States, No. 23–939, slip op at 1 (US, 1 July 2024)

[11] American Bar Association, 'ABA President Statement Re: Trump v. US Ruling' (ABA News, 2024)

[12] 'Trump Immunity Supreme Court Live Updates' (The New York Times, 1 July 2024)

[13] 'US Supreme Court Due to Rule on Trump's Immunity Bid in Blockbuster Case' (Reuters, 1 July 2024)

[14] Dapo Akande, 'International Law Immunities and the International Criminal Court' (2004) 98(3) AJIL 407, 407-433 <https://doi.org/10.2307/3181639>.

[15] Ibid.

[16] Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95; Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261.

[17] Nixon v Fitzgerald 457 US 731 (1982).

[18] Clinton v Jones 520 US 681 (1997).

[19] Gennady M Danilenko, 'The Theory of International Customary Law' (1988) 31 German YB Int'l L 9 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/gyil31&div=4&id=&page=> accessed 11 July 2024.

[20] Centre for Law and Democracy, 'Transparency and Accountability: The Role of Freedom of Information' (Centre for Law and Democracy, March 2014)

[21] Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution's Application for a Warrant of Arrest) ICC-02/05-01/09-3 (2008).

[22] Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Rep 422.

[23] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.

[24] Public Prosecutor's Office v Luiz Inácio Lula da Silva (Case No. 5046512-94.2016.4.04.7000) (13th Federal Court of Curitiba, Brazil, 2017).

[25] S v Zuma (Jacob Gedleyihlekisa) (The State v Jacob Gedleyihlekisa Zuma) Case No. CCD30/06/2020 (High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg).

[26] Articles of Impeachment against William Jefferson Clinton, H Res 611, 105th Congress (1998); Articles of Impeachment against Richard M. Nixon, H Res 803, 93rd Congress (1974).

[27] Gennady M Danilenko, 'The Theory of International Customary Law' (1988) 31 German YB Int'l L 9 <https://heinonline.org/HOL/LandingPage?handle=hein.journals/gyil31&div=4&id=&page=> accessed 11 July 2024.

[28] It should be noted that the UDHR is not a legally binding instrument, however it is a significant human rights instrument. The US has legal obligations relating to the ICCPR. 30 US Department of State, 'US Report on UPR' (13 August 2020)

[29] Human Rights Watch, 'World Report 2023: United States' (2023)

<https://www.hrw.org/world-report/2023/country-chapters/united-states#:~:text=Despite%20pockets%20of%20crim inal%20legal,constitutional%20protections%20for%20abortion%20access> accessed 11 July 2024.

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