Analysis: US Supreme Court on Immunity for President

Reading time: 8-10 minutes.

John Austin’s theory of legal positivism argued that a sovereign is not responsible to her subjects, owes no moral obligation and does not need to claim her ruling to be just. This approach has been passed on generations after generations. However, in Trump v. Vance, District Attorney of the County of New York, et al.,, the US Supreme Court, took a different route. With a majority of 7-2, the court ruled against the absolute immunity of the President. It allowed a local prosecutor access to the financial records of the sitting President Donald J. Trump. It further held that the subpoena wanting access to the financial records of the President in power does not require to meet the heightened need standard.

This was the first time the Court was dealing with a state criminal subpoena issued to a President.                                                              

Factual background

The New York District Attorney, on behalf of a grand jury, served a subpoena duces tecum to the personal accounting firm of President Donald J. Trump and sought access to his personal financial records. President Trump, acting in his individual capacity, sued the local prosecutor and contended that as per Article II of Supremacy Clause, the President enjoys absolute immunity from state criminal process and asked the court to issue a “declaratory judgment that the subpoena is invalid and unenforceable while the President is in office”.

The District Court and The Second Circuit denied injunctive relief to the President and allowed the enforcement of subpoena seeking the documents.

The Court held as under:

Presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce nonprivileged material, even when the subject matter under investigation pertains to the President.”

Dismissing the President’s argument, the Court gave primacy to public interest and just proceedings. It held that “the public has a right to every man’s evidence”. Following John Marshall’s approach in the treason case, where the subpoena was directed to the President Thomas Jefferson, it was held that subpoenas do not “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions”

It was contended by President Trump that such state criminal subpoenas make the Presidents easily identified targets for harassment and undermine the executive’s liberty to deal with the State affairs. On this contention the court observed that “even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen’s normal duty of . . . furnishing information relevant” to a criminal investigation.” The Court held that even in the past, Presidents (from Jefferson to Clinton) have been summoned to produce the required documents and therefore the sitting President cannot eschew the liability.

It was further held that subpoena is not the last resort and is not bound to meet the heightened standards to ensure that no unreasonable extension to the protection is given to the President’s private documents. The Court, while referring to Aaron Burr’s Case, held that with respect to the private documents of the executive, President stands at par with any other individual and cannot take the defence of his chair.

The Court, refuting the exclusivity of the President and lack of heightened need standard, held that there are remedies available under the law, which allow the President to question the alleged unconstitutional influence and, the Court to dismiss sham subpoenas. The Courts have been given the power to nip vexatious subpoenas in the bud vis a vis uphold the independence and position of the President in the constitutional scheme. Therefore, for all these safeguards, absolute immunity is not required.

Dissenting Opinion

Justice Thomas and Alito gave their dissent against the local subpoenas directed to the President. Both the judges were of the opinion that these local subpoenas question the functioning of the Government. They expressed that these subpoenas undermine the efficacy and the well-being of the nation and therefore, keeping in mind the separation of power between the Federal and States, all these local prosecutors should not be given the power to question the authority of the President.

Author’s Analysis

A sovereign has always been treated as a demigod. The absolute powers given to our leaders has time and again made it difficult to question the feasibility of their commands and treating them as an integrated personality has given them this inherent sense of immunity that will ensure that they are never called out for their actions.

However, the recent judgement of the US Supreme Court gave the much needed reassurance that leadership can be subjected to checks and balances. The Court struck a balance between the interests of the public and the powers of the executive, which was the crying demand of the current times. Equity and primacy of citizen’s rights was the driving force behind the judgement given in the case. The requirement for the President to produce the documents in Court just like his fellow citizens, proved that nobody can evade a criminal investigation and the judicial direction. It was established by the Court that the President is not infallible and is bound to answer the Court and his people for his actions.

Conclusion

“No man is above the law and no man is below: nor do we ask any man’s permission when we ask him to obey it”Theodore Roosevelt

The judgment embarked on a new journey to establish a parity of treatment between the individuals of a State and the President when it comes to an alleged violation of any state law. The Court via its judgement reinstated that United States is a nation of law and no one is above the law, not even the President and it treats everybody the same.

Author: Ananya Bajpai, West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India.

US-India relations

Reading time: 6-8 minutes.

The First Couple of United States have indicated their plans to visit India. As per the news from the Oval office of United States it has been confirmed that the President of the United States Donald J. Trump and the First Lady Melania Trump will visit India for two days in the month of February. The arrival news of the US first couple has been prominently announced in a tweet by the White House. The same tweet marked the strengthening of US-India strategic partnership.

Trump and the First Lady will attend official engagements in New Delhi and Ahmedabad, Gujarat. During the Gujarat visit, the President will interact with people in an event, called “Howdy Trump”. This is portrayed as a repetition of the “Howdy Modi” show that took place in Houston, Texas, during the PM Modi’s US visit in September last year.

Trump and Modi will inaugurate the newly constructed Sardar Vallabhbhai Patel Stadium and address a gathering which, according to Ahmedabad Municipal Corporation officials, is going to be attended by more than 100,000 people, whom the local administration is mustering “not only from the state but also other parts of India.”

History of the India-US Bilateral

Since India’s independence, the relations between both the countries India and United States of America had been inhibited by Cold War. The first half century of the bilateral, in retrospect, has been disappointing. The clash of interests that began during World War II when the Indians and Americans diverged on basic priorities continued through the more forty years of the cold war. The two countries found themselves on opposite sides of major foreign and security policy issues despite their common adherence to the democratic system.

When the cold was over, Indo-US relations could become more positive. It is uncertain, however, that the two governments will take advantage of this opportunity.

Significance of the US for India

The United States has exhibited, through its relative world dominance and power, its significance for India. This significance is in the following forms:

  • For safeguarding India’s national interests.
  • The role of US in UNSC and International Monetary Institutions is of worth to India. India’s aspiration to become a permanent member of UNSC can be achieved through closer ties with the US.
  • The US is also one of the top sources of FDI in India.
  • It also plays a significant role in countering China’s governance in the Indian Ocean Region. Moreover, it also playing a crucial role in providing naval security at the high seas which is critical for India’s oil imports. T
  • he US has a scientific edge in the areas of commerce, aerospace, defence and intelligence. Also having access to this aptitude is crucial for India.

Thus, the diplomatic relationship with the US is not only indispensable for India’s economic growth but also for its national interest.

Significance of Trump’s visit

The visit will provide an opportunity for both countries to strengthen their bilateral ties and further improve their strategic relationship. As per the Indian government officials, Trump’s visit has raised hopes that both countries will work out a limited trade deal to lessen India’s trade surplus with the US. Once at $30 billion, the surplus in India’s favour has now tightened to $16 billion.

Ahead of the visit, New Delhi is expected to commend a $2.6 billion deal for Military Helicopters named, Seahawk helicopters from US defence contractor Lockheed Martin Corp. This trip of Trump has also raised hopes that he would refurbish some of the country’s US trade inclinations, in exchange for tariff diminutions and other concessions like to lower tariffs on several goods, including Harley Davidson bikes, and withdraw the so-called retaliatory tariffs in return for the US restoring some of the GSP benefits that allowed lower-duty access for Indian products. Besides, an early agreement on medical devices such as knee implants and stents had also been worked out.

Moreover, the mission will hold meetings with Indian officials to discuss policy support for US nuclear exports to India, besides promoting US products and services to Nuclear Power Corp. of India Ltd and other embryonic customers, the Nuclear Energy Institute said in a statement.

Conclusion

The U.S.-India partnership has its footing in common values, including the rule of law and democratic principles.  The United States and India have shared interests in endorsing global security, stability, and economic prosperity through trade, investment, and connectivity. The United States supports India’s emergence as a foremost global power and vigorous partner in efforts to ensure that the Indo-Pacific is a region of peace, stability, and growing prosperity.  The strong people-to-people ties between our countries, grounded in shared values, are a remarkable source of strength for the partnership.

This visit signals an important modification in relations between the world’s two biggest democracies. Ever since the 1990s, three American administrations have tried to improve bilateral relations, with mixed results. While annual trade between the countries has soared during this period, from $20 billion to more than $100 billion, annual US-China trade is worth six times more; but the political relationship has had ups and downs.

The two countries have a long history of baffling each other. By definition, any alliance with a superpower is inadequate, so efforts to establish close ties with the United States have long run up against India’s tradition of strategic autonomy. But, the Americans do not view democratic India as a threat. On the contrary, India’s success is an important US interest, and several factors assurance a perkier future for the bilateral relationship.

Author: Charu Shekhar from Dr. Ram Manohar Lohia National Law University, Lucknow.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

The US-Iran tension

Reading time: 6-8 minutes.

Recently, the world has been witness to an ongoing chain reaction based (CRB) increased extended military clash between the US and Iran. This skirmish started with a rocket attack on 27th Dec 2019, on the Kaywan Air Base in the Kirkuk region of Iraq by suspected Iran backed Hezbollah militants (HM). The attack killed a US civilian contractor. In retaliation, on 29th Dec 2019, the US did airstrikes on HM’s centres of command and weapon depots in Syria and Iraq leading to 25 deaths.  

It further culminated in an attack by the HM on the US embassy based in the international zone of Baghdad knfown as the Green Zone on 31st Dec 2019. The US immediately responded by sending more military to the embassy and the Persian Gulf region. Besides, on 3rd Jan 2020, the US through a drone strike near the international airport of Baghdad, killed the second most authoritative Iranian, Major-General Q Soleimani including nine others which included a commander of HM.  

Reason: For the current escalation

The ongoing US-Iran military hostility is a direct intensified output of the 2019-2020 crisis in the Persian Gulf region between these two nations. It actually began on 8th May 2018 when the US withdrew from the ‘Iran nuclear deal’ (IND) also known as the ‘JCPOA agreement’ signed in July 2015, accusing Iran of distressing and destabilizing the US forces in the region and imposing sanctions (fourth since 1979) from Nov 2018 to stop Iran from supporting militants in the region, and from developing ballistic missiles.

Thereafter, the crisis started escalating, when first in May 2019, four merchant ships were damaged in the Persian Gulf through what the US called a sabotage attack by Iran. Then again in June 2019 two more merchant ships were damaged through limpet mines in the Persian Gulf. The US blamed Iran for these attacks and responded by increasing its military in the region.

Iran meanwhile destroyed a US drone aircraft after accusing it of spying and flying over its waters. The US responded with cyber assaults on Iran’s missile control mechanism and added new sanctions. The US also deployed the latest F-22s in the region.

Further, in continuation in July 2019, Iran successfully captured a UK oil tanker in the gulf in retaliation to UK earlier seizing an Iran oil tanker in the Strait of Gibraltar. Meanwhile, the US claimed having destroyed an Iran drone aircraft which was denied by Iran. All these lead to the creation of the multinational IMSC – a sentinel programme by the US in the gulf to safeguard oil tankers.

In a continued CRB retaliation, in Aug 2019, Iran captured an Iraqi oil tanker. It lead to UK and Israel joining this IMSC programme. In Sept 2019, per claimed by US, the missile and the drone attack on Saudi Aramco in Saudi Arabia originated from Iran. While Iran captured one more ship in the gulf and told the US and other western nations to leave the Persian Gulf. In retaliation, US officially launches the IMSC in Nov 2019 in Bahrain to safeguard oil supplies.

Developments: After the drone attack

Iran termed the drone killing of its leader Soleimani as murder. This act impulsively worsened the four decade old tension between the two countries. Iran vowed revenge with unforgiving retaliation while US announced more troops to the region as a precaution.

Further, Iran declared that it would no more honour the limitations of the IND and on 7th Jan 2020, Iran declared the US armed forces and the Pentagon as terrorists.  On 8th Jan 2020, Iran launched the ‘Operation Martyr Soleimani’ through a series of ballistic missiles strikes at US targets in Iraq claiming 80 US casualties which were dismissed by the US.

Meanwhile Iraq passed a resolution for complete US withdrawal from Iraq which was rejected by the US with a warning to freeze its deposits in US and brought in more sanctions on Iran. On 12th Jan 2020, HM called for a joint intensified military crusade against US while Iran and the US, both separately concluded to de-escalate the crisis.

Meanwhile, the market across the world reacted with 4% increase in oil prices and a fall in stock prices.

History: US-Iran relations

The crisis has its root in two events. First event happened in 1951. It started with the nationalisation of the British owned oil company in Iran by the then left wing prime minister M Mossadegh. In retaliation UK and the US through ‘Operation Ajax’ overthrew this government in 1953 with a monarch, the Shah. This monarch over time turned into a dictator to rule but had the support of the US.

This lead to the birth of anti-American ideology being used by hardliners students. They in 1979 overthrew the monarch with a new theocratic government and took 52 Americans as hostage for 444 days (the second event) after seizing the US embassy in Iran. US immediately brought in economic trade sanctions and froze all of Iran assets in US. These were lifted only after the release of the hostages in 1981.

This led to the birth of conflicting policies with locked in bitterness. It also led to the division of the middle-east between these two nations as allies and starting of proxy wars like the 1980 Iraq-Iran war, or the 1983 attack of Hezbollah on US targets in Lebanon. In 1988, the conflict escalated with direct confrontation between US-Iran through the tanker war in the Persian Gulf and a second economic sanctions were imposed by the US which were further expanded in 1995.

The proxy activities by Iran escalated with the fall of Saddam. Iran assumed itself to be next target on the list and escalated the militant attacks on US in Iraq. These were headed by Q Soleimani leading to several hundred deaths of US soldiers as well as expanding its influence on Syria, Yemen, and Afghanistan.

Next is the IND. During the reign of the Shahs in early 1960s, US helped Iran with nuclear reactors for civil peaceful use including training and assistance. However, in 2002, Iran started using it to develop a bomb, US followed it with the third economic sanctions in 2006 which were lifted only after the IND was signed.

Implication: For India

Any war in the gulf region will put to danger the lives of eight million Indians who live in this region. It will also destroy their livelihoods leading to reduced remittances which are a source of foreign exchange. The war will also increase the import cost of oil prices leading to more use of foreign exchange, increase of domestic price of oil leading to inflation of commodities and food prices. Currently, Indian economy is in a slowdown mode. This will have an upsetting effect on macroeconomic policies.

Conclusion

The four decade confrontation through economic sanctions and costly proxy war has destroyed the economy of Iran. Its currency has collapsed. It now has huge budget deficits. Business are controlled by State agencies leading to high corruption. Iran also had to reduce the oil price but overall oil prices increased in the international market.

The effect has been the paucity of medicines, shortage of food, lost income opportunities. The US also has become tired of these proxy wars and there are now more internal opposition to such escalation of wars.  Currently the situation is under control but this confrontation of political policies can lead to unpredictable dramatic escalation of hostilities. A full scale war will lead to millions of deaths.

Author: Shaily Baag from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

Impeachment of Trump

Reading time: 6-8 minutes.

As the Presidential elections date of the United States, which is scheduled for 3rd November 2020, draw closer, the politics is taking a new turn. Recently, Donald Trump became the third President of the US to be impeached by the House of Representative.

Impeachment means formally accusing a public official with misconduct in the office, with the House of Representatives accusing the official and the Senate persecuting him/her. Thus, this procedure requires the US Senate to have a final say on whether Trump will get impeached or not.

Allegations against Donald Trump

There are two allegations which have been made against him. The first allegation is that Donald Trump abused his official powers in his capacity as the President for his personal gains by calling and asking Ukrainian President Volodymyr Zelensky to investigate about former Vice President Joe Biden and his son, who has a business in Ukraine and many other countries. The second allegation is obstruction of Congress because the president allegedly refused to co-operate with the impeachment inquiry, withholding documentary evidence and barring his key aides from giving evidence.

The House Speaker Nancy Pelosi has already indicated that it might delay sending the articles to the Senate and hence set the stage for a trial in the US Senate in January 2020. It is important to note here that the Senate currently has 53 Republicans, 45 Democrats and 2 independents who usually vote with the Democrats; for the Impeachment of Donald Trump to take place, 67 votes in total will be required, which cannot happen unless some Republicans vote against him. Since this is highly impossible, it is likely that Donald Trump will not be impeached.

Previous instances of impeachment in the US

The USA has already witnessed the impeachments of two of its Presidents – Andrew Johnson and Bill Clinton. The death of Abraham Lincoln in April 1865 out of the blue raised his Vice President Johnson, a candid racial oppressor but a solid enemy of secessionists, to the White House. With the post-quake tremors of the civil war showing in ridiculous voter concealment and racially spurred fear-based oppression over the South, Johnson’s administration was quickly tossed into tumult by requests that the new President find a way to solidify the war’s guarantee of racial fairness.

Johnson vetoed social equality enactment, singularly absolved many previous Confederate pioneers and required the homicide of his political foes. In spite of all this, the heft of the indictment provisos against him was predicated on a moderately thin charge of abusing a contemporary “residency of office” law by evacuating his secretary of war, Edwin Stanton, who was instrumental in contradicting bigot assaults on suffrage for previous slaves. Johnson stayed in office after being cleared in the Senate by one vote – a paid-off triumph according to some history specialists.

The second impeachment was of Bill Clinton in 1998. While the Clinton indictment is connected in mainstream memory to his association with the White House understudy Monica Lewinsky, he was impugned for misleading a stupendous jury in a different case, brought by a previous Arkansas state worker, Paula Jones.

In light of a lewd behaviour claim recorded by Jones, Clinton denied in a sworn statement and a later video meet that he had a sexual association with Lewinsky. That attestation was repudiated by a report submitted to Congress by autonomous guidance Kenneth Starr, who archived Clinton’s association with Lewinsky in offensive detail. Indictment procedures against Clinton were opened in October 1998, and the House of Representatives affirmed two articles of denunciation against him, for prevarication and check of equity, in December.

Two other proposed articles, for maltreatment of intensity and prevarication a subsequent time, were opposed. The Republicans drove Senate, and with a 55-seat larger part at the time, cleared Clinton effectively on the two checks, with the closer case drawing just 50 votes out of 67 required.

Legal principles involved

The process of Impeachment is based on the doctrine of the Rule of Law. It lays down that law is the supreme force and hence the government must act according to law and within limits of the law. It is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.

It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials. One of the major implications of the rule of law is ‘equality before the law’, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts. The law of impeachment ensures that no one is above the law, even if the person is President of the country.

Impeachment in the Indian Constitution

The Indian Constitution also provides for the impeachment process on the lines of the USA Constitution. The president and judges, including the Chief Justice of the Supreme Court and High Courts, can be impeached by the Parliament before the expiry of the term for violation of the Constitution. Other than impeachment, no other penalty can be given to a President in position for the violation of the Constitution under Article 361 of the constitution.

However, a President, after his/her term/removal, can be punished for his already proven unlawful activity of disrespecting the Constitution, etc. No president in India has faced impeachment proceedings. Hence, the provisions for impeachment have never been tested.

Conclusion

The American President Donald Trump had stated in a rally that the Democrats are declaring their deep hatred towards him and disdain for the American voters. Both the Republicans as well as the Democrats are taking the sides of their parties.

The decision of the US Senate would be very important from the voter’s point of view in the USA. But we must remember here that in the Senate, two-thirds majority voter count is required to convict, and as it stands, this is unlikely given that Mr Trump’s party controls the chamber. It is highly unlikely then, albeit not impossible, to impeach President Donald Trump.

Author: Shekhar Kanwar from NALSAR University of Law.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.