America’s allies were already nervous regarding the country’s upcoming elections. Now that the U.S. Supreme Court has granted an unprecedented expansion of executive power by granting legal immunity to presidents, analysts in some of those countries are even more concerned regarding the reliability of American power.
Allied leaders in Asia and Europe, accustomed to facing threats from autocratic leaders in Russia, North Korea and China, are worried regarding the possibility of having to deal with an unbridled American president as well.
“If the president of the United States is free from the constraints of criminal law, if he has that level of criminal immunity, then the other leaders of allied nations cannot trust that country,” said Keigo Komamura, a law professor at Keio University in Tokyo. “It is not possible to maintain a stable national security relationship.”
Komamura added that the Supreme Court ruling now gives the perception that the US president can act above the law. “This may seem impertinent to the US, but it is not very different from Xi Jinping in China. The rule of law has become the rule of power,” he said.
While some countries enjoy limited immunity for rulers while in office, in Japan, South Korea, Australia and the United Kingdom — among America’s closest allies in the world — there is nothing like the broad protections the Supreme Court appears to have granted in its ruling this week.
The court’s decision to grant the president immunity from criminal prosecution for official acts — a term the court did not clearly define — “is not in keeping with global norms,” according to Rosalind Dixon, a law professor at the University of New South Wales in Sydney, adding: “It seems to me that what is happening in the United States in terms of the court’s ruling and the presidential election should be very worrying to all of America’s allies.”
In South Korea, no political leader enjoys legal protection from criminal prosecution following leaving office and the president can serve only one term. Four of the last eight former presidents were convicted and imprisoned at the end of their term for corruption and other crimes they committed before taking office and during their presidency.
“I think a lot of Koreans feel proud that no one is above the law, not even the president,” said Ramon Pacheco Pardo, professor of international relations at King’s College London and chair of Korean studies at the Brussels School of Governance at the Free University of Brussels. “But in the United States, they seem to think that presidents are different from everyone else.”
But the frequent criminal charges once morest officials in South Korea have contributed to increased political polarization, with some supporting the punishments as acts of justice and others seeing them as political revenge orchestrated by a new president.
While in office, South Korean presidents enjoy immunity from prosecution except in the case of “insurrection or treason.” The U.S. Supreme Court decision ruling that former President Donald Trump is entitled to immunity from prosecution over allegations that he tried to overturn the result of the 2020 presidential election did not include such a clause.
Komamura explained that in Japan, the constitution prevents parliamentarians from being arrested while in office, but does not grant them immunity from criminal prosecution. This clause protects the prime minister, who must be a member of parliament.
One of Japan’s biggest scandals occurred in the 1970s, when former Prime Minister Kakuei Tanaka was accused of taking a bribe for accepting $1.6 million from Lockheed to arrange the purchase of aircraft by All Nippon Airways, Japan’s largest airline.
Even in countries where political leaders enjoy partial immunity, it is often more narrowly defined. In the United Kingdom, where MPs enjoy broad legal protections once morest prosecution arising from their political speech, they are not immune from the criminal laws that govern citizens.
For example, former Prime Minister Boris Johnson was fined by police while still in office for attending a party in Downing Street during lockdown, in contravention of coronavirus laws his own cabinet had instituted during the pandemic.
However, even when legal immunity is more narrowly defined, laws may not be as important a factor as political culture.
In Malaysia, although executive immunity is not as broad as that just granted to presidents by the US Supreme Court, there is a culture of impunity, with few leaders held to account in court despite widespread corruption.
Another question is whether legal proceedings can thwart the plans of politicians determined to stay in office.
In Israel, all members of parliament, including the prime minister, enjoy absolute immunity from prosecution for acts committed in the exercise of their official duties. This is a protection similar to that defined in the US Supreme Court ruling.
This has not stopped legal proceedings from being initiated. Although Benjamin Netanyahu, Israel’s prime minister, was charged with bribery, fraud and breach of trust nearly five years ago, he has done everything necessary to stay in office. Before the war in the Gaza Strip, Netanyahu, whose corruption trial is ongoing, tried to expand his powers over the country’s courts, triggering mass protests in Israel.
In all this, he has deviated from the precedent set by a predecessor, Ehud Olmert, who resigned when he became embroiled in corruption investigations.
Adam Shinar, a law professor at Reichman University in Tel Aviv, Israel, said the Supreme Court ruling essentially introduced the same kind of immunity in the United States that Israeli leaders have had since 1951. But he added that American presidents have enjoyed de facto immunity for decades.
Shinar recalled that “there has never been any talk of prosecuting them following they leave office.” The closest anyone came to that was the debate over whether Richard Nixon would be prosecuted for the Watergate scandal, but his successor, Gerald Ford, pardoned him before that might happen.
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The US court’s new ruling has taken on special urgency abroad, largely because of the prospect of Trump returning to the presidency.
Shinar said that because of Trump’s disregard for legal or political norms and the growing political divide and fundamental distrust in the U.S. government, the reaction to the court’s ruling is more drastic than it might have been in other times.
“If this ruling had happened in the 1950s, when Eisenhower was president, would we be as concerned or dismayed? Maybe not,” he said. “If we no longer trust our politicians to do good things, then we need others to step in, such as the criminal justice system.”
Shinar concluded: “But if trust in our political institutions declines at the same time as the immunity of our politicians grows, we have a problem.”
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