US allies see worrying twist in presidential immunity ruling

Allies of the United States were already anxiously awaiting the country’s upcoming elections. Now that the United States Supreme Court has granted an unprecedented expansion of executive power by granting presidents legal immunity, analysts in some of those countries are even more concerned about the reliability of American power.

Across Asia and Europe, where allies have grown accustomed to the threat of authoritarian leaders in Russia, North Korea and China, the prospect of them also having to deal with an unbridled American president is a troubling prospect.

“If the American president is free from the constraints of criminal law, if he has that level of criminal immunity, the other leaders of the allied nations cannot trust the United States,” he said Keigo Komamuraprofessor of law at Keio University in Tokyo. “We cannot maintain a stable national security relationship.”

Mr Komamura added that the Supreme Court decision now gave the perception of a US president who can operate above the law. “This may be rude to the US, but it is not so different from Xi Jinping in China,” he said. “The rule of law has become the power state.”

While some grant limited immunity to leaders while they are in office, Japan, South Korea, Australia and Britain — some of the United States’ closest allies in the world — offer nothing like the sweeping 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 his official conduct – which itself was vaguely defined by the court – was “not in line with global standards,” it said. Rosalind Dixonprofessor of law at the University of New South Wales in Sydney. “I think what happens in the United States with respect to the court ruling and the presidential election should be a serious concern for all of America’s allies.”

In South Korea, political leaders have essentially no legal protection from criminal prosecution once they leave office — and the president is limited to one term. Four of the past eight former presidents have been convicted and imprisoned after leaving office for corruption and other crimes committed before and in office.

“I think many Koreans are proud that no one is above the law, not even the president,” he said. Ramon Pacheco PardoProfessor of International Relations at King’s College London and Professor of Korean Studies at the Brussels School of Governance of the Vrije Universiteit. “But in the US, presidents seem to be created differently than the rest of the population.”

Yet the frequency of criminal charges against officials in South Korea has contributed to increasing political polarization. Some see the punishments as acts of justice, while others see them as nothing more than political revenge by a new president.

While in office, South Korean presidents enjoy immunity from criminal charges except in cases of “insurrection or treason.” Such a provision was specifically omitted from the U.S. Supreme Court decision, which ruled that former President Donald J. Trump is entitled to immunity from prosecution on charges that he tried to overturn the results of the 2020 presidential election.

In Japan the Constitution grants all members of the Diet, as Japan’s parliament is known, immunity from arrest while in office, but not from criminal prosecution, Mr. Komamura said. The prime minister, who must be a member of parliament, is covered by the clause.

One of the biggest scandals in Japan in the 1970s was when former Prime Minister Kakuei Tanaka was indicted on bribery charges. He allegedly accepted $1.6 million from Lockheed to arrange the purchase of aircraft by All Nippon Airways, Japan’s largest airline.

Even in countries where there is some immunity for political leaders, it is usually more narrowly defined. In the United Kingdom, where MPs generally enjoy legal protection from prosecution for political speech, they are not immune from the criminal laws that govern the public.

For example, police fined former Prime Minister Boris Johnson while he was still in office for attending a lockdown party at Downing Street, breaking coronavirus laws put in place by his own government during the pandemic.

But even where legal immunity is more narrowly defined, the laws may not play as large a role as political culture.

In Malaysia, executive immunity may not be as far-reaching as the immunity recently granted to presidents by the US Supreme Court, but the culture of impunity means that few leaders are brought to justice despite widespread corruption.

For years, former Prime Minister Najib Razak managed to avoid criminal conviction in a multibillion-dollar corruption scandal because he controlled the country’s courts and media.

After the opposition came to power in 2018, he was found guilty in 2020 on seven corruption charges and sentenced to up to 12 years in prison. However, earlier this year his sentence was halved and his fine reduced to a quarter of its original amount by the country’s pardons commission. There has been widespread speculation that he was on the verge of receiving a royal pardon from the king.

“Maybe Trump can get a royal pardon like his good friend Najib in Malaysia,” an X user posted on Monday.

Whether prosecutions can remove from office politicians determined to remain in office is another question.

In Israel, all members of parliament, including the prime minister, are subject to absolute immunity from prosecution for acts committed in the performance of their official duties. It is a protection no different from that defined by the US Supreme Court ruling.

That hasn’t prevented prosecutions. Despite being indicted on charges of bribery, fraud and breach of trust nearly five years ago, Israel’s Prime Minister Benjamin Netanyahu has doggedly maneuvered to stay in office. Before the Gaza war, Mr. Netanyahu, whose corruption trial is ongoing, sought to expand his power over the country’s courts, sparking mass protests in Israel.

In doing so, he departs from the precedent set by his predecessor, Ehud Olmert, who resigned after becoming embroiled in corruption investigations.

Adam Schijnarlaw professor at Reichman University in Tel Aviv, said the Supreme Court ruling effectively introduced the same kind of immunity in the United States that Israeli leaders have enjoyed since 1951. But he also said that American presidents have enjoyed de facto immunity for decades.

“Nobody ever talked about prosecuting them for things after they left office,” Mr. Shinar said. The closest anyone came was the debate over whether to prosecute Richard Nixon for the Watergate scandal, but his successor, Gerald Ford, pardoned him before a trial could take place.

The new US court ruling has taken on added urgency abroad, particularly given the prospect that Trump could become president again.

Mr Shinar said the reaction to the Supreme Court ruling has been more dramatic than it would have been in another era because Mr Trump has no respect for legal and political norms, and because there is growing political division and fundamental distrust in the US government.

“If this decision had been made in the ’50s with Eisenhower as president, would we be as concerned or as outraged? Maybe not,” he said. “If we don’t trust our politicians to do good things, then other things have to intervene, like the criminal justice system.”

He added: “But if there is a decline in trust in our political institutions, while at the same time there is a growing immunity to our politicians, then there is a problem.”

Choe Sang-Hun contributed to the reporting from Seoul, and Tasjny Sukumaran from Kuala Lumpur, Malaysia.