Irish Centre for Human Rights Blog

Ruth A Fitzgerald SC is a senior Irish Barrister.

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Many countries’ constitutions provide for the immunity of a president for official acts.^[1] In principle, the position on presidential immunity found by the United States Supreme Court (USSC) in Trump v United States^[2] is by no means unique. Nonetheless many lawyers and commentators in the United States (US) have expressed significant concern at the decision.  One – perhaps the most significant – issue which seems to have fuelled controversy is the finding that it is not permissible to consider the motives for a former president’s use of his or her powers. 

The European Court of Human Rights (ECtHR) reached the opposite conclusion to the USSC on the question of whether the motive for which presidential powers are used is a factor in determining presidential immunity.  It did so in the context of the presidential power of pardon. 

In light of how often reference is made to the USSC’s decision in the context of President Trump’s current actions, it seems worth exploring how the two decisions compare.  In this context, it might be worth noting that some media sources are suggesting that the US presidential powers of pardon may become relevant in connection with the imprisonment of Ghislaine Maxwell.

Background

In July 2024 the USSC decided that the former US President has absolute immunity from criminal prosecution for the exercise of “core constitutional powers,”including the power of pardon.  It went on to find that he has presumptive immunity for other, more peripheral official actions.^[3] 

The case arose in connection with the proposed prosecution of the former President for encouraging legislators and election officials to question the validity of the November 2020 election and organising supporters to submit false electoral votes. Actions such as meetings with Department of Justice officials were held to fall within “core constitutional powers.” Trump’s effort to persuade Vice-President Pence to reject electoral ballots was deemed peripheral and, therefore, presumptively immune, making a prosecution conditional on a rebuttal of the presumption.   It was left to the lower courts to determine whether other actions were official or private. 

A couple of months before the decision in the Trump case the ECtHR looked at the question of presidential immunity in relation to the power of pardon.  Saakashvili v Georgia^[4] concerned, inter alia, the immunity of the former Georgian President who was alleged to have abused his power of pardon while in office.  The facts were that four officers of the Minister of the Interior had confessed to a murder which involved a high-ranking official in that Ministry further to the promise that they would have comfortable conditions of detention and that their sentences would be reduced by a presidential pardon. The President endorsed the promises made and granted the pardon.  The domestic courts found that he had done so in order to avoid the damage that full disclosure of all the details on the murder would have inflicted on his political team.

The former Georgian President relied upon the argument, inter alia, that, as the presidential power of pardon was absolute and not subject to judicial control, he could not be convicted for abuse of power in granting the pardons.

Immunity in the exercise of the power of pardon

The Georgian Supreme Court had, in a decision of 2000, held that the exercise of the power of pardon under the Georgian Constitution is an unconditional and absolute constitutional power; that the power may not be limited by statute; and the President may not be constrained in respect of any individual pardon decision.^[5]

The US Constitution provides^[6] –

“The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

It appears that the US Constitution does not contain a provision specifically granting the President immunity.  Rather, immunity is implied as an incident of the office. The “power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”^[7]

The position in both Georgia and the US then is that the power of pardon vests in the President and is unconditional and absolute.  The divergence in the decisions between the USSC and the ECtHR mentioned is therefore of significance.

There are factual differences between the Saakashvili and the Trump case which can be used to differentiate the two. However, the core question of whether it is possible to look behind the exercise of the power of pardon does not rely on those facts.

The question of motive

In the Trump case, Chief Justice Roberts for the majority said –

“In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect. Indeed, “[I]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[I]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.”^[8]

While the USSC referred to the issue of motive in the context of the introduction of evidence to determine whether a function is core or non-core, it would seem from the passages from Justice Fitzgerald’s Opinion in another case, quoted here in the Trump case, that the USSC was endorsing the proposition that a president’s motive for exercising a power is irrelevant.  As Justice Sotomayor said in her dissenting judgment (joined by Justice Kagan and Justice J Jackson) –

“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is ‘at least . . . pre-assumptive,’ and quite possibly ‘absolute.’”^[9]

and

“Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.”^[10]

The net effect of Chief Justice Roberts’s Opinion is that it is never possible to look to a President’s motive in granting a pardon.

In the Saakashvili case the ECtHR endorsed the position taken by the domestic, Georgian courts. The domestic courts had found the former president guilty, “not for exercising the constitutional power of presidential clemency as such but for abusing that power … within the meaning of ‘abuse of power’” under the Criminal Code.   

The Tbilisi City Court held –

“The court deems it necessary to clarify that … the unequivocal assertion that the President’s constitutional power is limitless – and that it is therefore impossible to abuse this power, even if an unscrupulous and premeditated intent has been proved – is dangerous and could encourage high-ranking State officials to get involved in corruption or other illicit dealings in the future. Such an assertion erases the legal boundaries of a State official’s authority and undermines the system of checks and balances. The principles of democracy and the rule of law are paramount among all other constitutional principles, … and it is based on these principles that State officials are obliged to comply with the constitutional order, which means that no branch of the State power may act solely based on personal convenience, political necessity, or other undue motivation. Thus, the power to grant a presidential pardon cannot be limitless and is, on the contrary, limited by the relevant constitutional principles and [by] legal rationalism. The President can only exercise his/her powers in accordance with constitutional principles, not against them.”^[11]

This approach seems to follow that in judgment in the South African case of Hugo v South Africa^[12]  where the South African Supreme Court found the President’s power of pardon to be subject to the Constitution and specifically, to the constitutional requirements of equality.  

The Tbilisi Court of Appeal then held –

“While the court agrees with the defence party that under the Constitution the President of Georgia enjoyed full discretion and was not bound by any subordinate rules in the exercise of his constitutional power of clemency, this does not mean that the power in question could not be abused. The evidence available in the case file, in particular the statements of [I.O.] and [N.B.], confirm that [the applicant] was anxious about the damage that the criminal investigation in respect of the Giugliano murder case might cause to the public image of the government. … It was thus for the purposes of shielding the Minister of the Interior and D.A. from possible criminal and political responsibility – from which [the applicant] could only draw personal political benefit – that he issued promises to pardon the four officers [of the CSD] even prior to their arrest and conviction; he issued those promises in exchange for the four officers’ silence …, which contributed to the obstruction of justice in the Sandro Girgvliani murder case. … It should also be noted in this connection that the purposes for which [the applicant] abused his power of presidential clemency … went against the pre-eminence accorded to the right to life both in domestic law …[and] in all international instruments aimed at the protection of human rights, including … the Strasbourg Court’s relevant case-law under Article 2 [of the Convention].”^[13]

This approach reflects the principle that discretionary powers may only be used for the purposes for which they were conferred.

The argument that the immunity of a president is subject to the constitution has purchase where the powers are exercised in defiance of a specific constitutional provision such as in the Hugo case where the South African Constitution contained an explicit prohibition on discrimination.  Where, however, the argument depends upon “constitutional principles” inhibiting the exercise of a president’s power which is subject to immunity, the argument becomes weaker.  The principle that a discretionary power may only be used for the purpose for which it is given is, in my view, a more coherent one.  It is true that if no purpose for the power of pardon is specified in the constitution in question, the issue is left somewhat open.  However, there is at least one clear line to be drawn: The power is given to serve the country’s citizens and not for personal purposes.  As the jurist Coke put it, discretion is “…a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their will and private affection.”^[14]

In endorsing the judgments of the Georgian courts, the ECtHR adopted the view that the purpose or motive for the exercise of an absolute power of pardon can be examined, i.e. the good faith aspect is relevant in determining whether the power has been properly exercised.  This contrasts with the USSC Opinion which excludes any examination of motive.  In effect, it is not possible to examine whether an US president has abused his or her powers.  This would seem to make irrelevant Chief Justice Roberts’s reference to the possibility of a president losing immunity when speaking as a candidate when he said –“There may, however, be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of ‘content, form, and context’ will necessarily inform the inquiry.”^[15] But by excluding any examination of motive he was, in effect, excluding any inquiry.

Conclusion

There were only two months between the two judgments, so it is a pity that the USSC does not consider the approaches of courts in other jurisdictions.  This seems to be a point of principle currently. As the US Chief Justice said in his Senate confirmation hearing:

In foreign law you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends.^[16]

Yet the decision of the ECtHR is not radical – it derives from a common understanding that powers are given to government as guardian of the common good and it follows, therefore, that the purpose for which a power is exercised is fundamental to the validity of that exercise of power.   It is the USSC’s decision that is radical – indeed, subversive – in giving a president the power to pardon criminals for whatever purpose he or she desires.

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[1] E.g. Article 13.8 of the Irish Constitution which grants immunity subject, however, to impeachment for stated misbehaviour.

[2]  603 U.S. 593 (2024)

[3] Opinion of the Court – “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”

[4] Applications Nos. 6232/20 and 22394/20

[5] Saakashvili v. Georgia Applications Nos. 6232/20 and 22394/20 (ECtHR, 23 May 2024), para 86:“… the Constitution of Georgia has vested the President of Georgia with that power [of pardon] unconditionally. …The President’s unconditional power (უპირობო უფლება) of clemency cannot be limited by any [statutes that are hierarchically inferior to the Constitution]. … The President cannot be constrained in his or her decision to pardon any individual.”  In addition, the Supreme Court endorsed the characterisation of the power of pardon as “an absolute constitutional right vested in the President of Georgia.”

[6] Article II, Section 2, Clause 1 of the U.S. Constitution

[7] Ex parte Garland, 71 U.S. 333, 381 (1866)

[8] Fitzgerald, 457 U. S., at 745 (quoting Spalding v. Vilas, 161 U. S. 483, 498 (1896))

[9] 603 U. S. 593, 660 (2024)

[10] 603 U. S. 593, 668 (2024)

[11] Saakashvili v. Georgia Applications Nos. 6232/20 and 22394/20 (ECtHR, 23 May 2024), para 51

[12] 1997 6 BCLR 708 (CC)

[13] Saakashvili v. Georgia Applications Nos. 6232/20 and 22394/20 (ECtHR, 23 May 2024), para 56

[14] Rooke’s Case, (1598) 5 Co Rep 996

[15] 603 U. S. 593, 598 (2024); see also Snyder v. Phelps, 562 U. S. 443, 453 (2011)

[16] See Confirmation Hearing on the Nomination of John G. Roberts to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 201 (2005)