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.

Analysis: Travel ban by USA

Reading time: 6-8 minutes.

President Trump announced on 11th March, that he was taking action to stem the spread of the corona-virus by suspending most travel from Europe to the United States for 30 days, beginning 13th March 2020. The restrictions do not apply to Britain, he added. Mr. Trump imposed a 30-day ban on foreigners who have been in the 26 countries that make up the European Union’s Schengen Area in a previous couple of weeks. The limits took effect from midnight on 13th March and exempt American citizens and permanent legal residents and their families, who would be funneled to certain airports for enhanced screening.

United States Vice President Mike Pence announced that the travel ban would be extended to the United Kingdom and Ireland starting at 04:00 GMT on Tuesday, 17th March 2020. He added that the Americans in the UK or Ireland and legal residents can come home and they would be funneled through specific airports.

The Schengen Area includes Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands,  Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Significance of this development:

The Department of Homeland Security said the order suspends the entry of most foreign nationals who have been in certain European countries at any point during the 14 days before their scheduled arrival in the US. The US President said that Britain had been excluded from the travel restrictions owing to its success in fighting the corona-virus.

He blamed other European countries for failing to take sufficient precautions and travel restrictions from China and other hubs of the virus resulting in a large number of clusters in the US seeded by travelers from Europe. The ban restricts every traveler except the U.S. citizens, legal permanent residents, the immediate family of U.S. citizens, people invited to the U.S. for specific purposes, air and sea crew members, foreign diplomats, and those who do not pose a significant risk and should be let in for reasons of public interest.

 Sarah Pierce, a policy analyst with the Migration Policy Institute in Washington, said that the country is in the community spread stage of the pandemic. As the corona-virus disease (COVID-19) continues to spread across the globe and countries are reporting new confirmed cases, the United States is closely monitoring and updating travel advisories. The State Department says that when it comes to issuing a travel alert for Americans traveling abroad, it takes into account health risks, including current disease outbreaks or a crisis that disrupts a country’s medical infrastructure, as well as the issuance of a travel notice by the Centers for Disease Control and Prevention (CDC).

Criteria:

The criteria imposed for putting in place such a ban is strictly the identification of countries wherein the spread of the virus has not been effectively controlled. The countries which have failed to impose proper precautions and travel restrictions within time have turned into hotspots for the infection and therefore, by restricting travels from such countries, the US wants to mitigate the risk.

Its probable impact on international relations:

The travel ban stops any travel between countries in the Schengen Area and the US. The restriction will affect 3,500 flights per week and up to 800,000 passengers, according to aviation analysts at Bernstein. The countries most affected will be Germany, France, and the Netherlands.

The ban would heap more pressure on an industry struggling because of the spread of corona-virus, with tens of thousands of canceled flights and warnings over the disease’s effect on earnings. There would be heavy political costs- and the risk of retaliatory action- was, say, a non-Schengen country to impose a blanket ban on arrivals from the Schengen area. There would also be a practical problem in some cases of policing land borders.

 It cannot be predicted what would be the outcome of such political and economic damages. It can only be hoped that the strict actions are taken in this time of a pandemic claiming numerous lives would not be carried across this river of travels to disturb international relations in the future. The European Union has itself imposed restrictions on travels to and from its countries constituting the Schengen Area, thus it is assumed that the diplomatic relations between the US and the EU would continue as they are. 

US-Europe relations:

Relations between the United States and the European Union are the bilateral relations between the US and the EU. The USA and EU have been interacting for more than sixty years. USA-EU official relations began in 1953 when USA ambassadors visited the European Coal and Steel Community. The two parties share a good relationship which is strengthened by cooperation on trade, military defense, and shared values.

 However, in January 2017, US President Donald Trump criticized the European Union as “basically a vehicle for Germany” claiming that it was “very catastrophic mistake” on Angela Merke;’s part to admit a million refugees- whom he refers to as “illegal”.

The relation soured more when Jean-Claude Juncker jokingly said it would support the independence of the US State of Ohio and the city of Austin, Texas after Donald Trump backed the Brexit and encouraging other European Countries to follow its example. In May 2017, Angela Merkel said that Europeans cannot rely on the United States’ help anymore after Trump threatened to stop all car trade with Germany.

 In July 2018, Trump stated that the European Union is one of the United States’ greatest foes globally, citing “what they do to us on trade”. In December 2019, further, the US urged the European countries to blacklist Hezbollah. Its ambassador to Germany asked these countries to list Hezbollah as a terrorist organization after a US civil contractor was killed in a rocket attack in Iraq’s Kirkuk province.

Points for consideration by INDIA:

India has also fallen victim to the virus and date there are 164 confirmed cases of the infection and two confirmed deaths thereby. The number is gradually increasing; however, the pace in India is quite slow as compared to various other countries. India has been able to build good relations with the US only in the past few years and to maintain same India needs to be more cautious than all others.

So far, India has presented an example of how a nation works to protect its citizens by rescuing Indians from foreign nations affected by the virus and also reducing the spread in the territory by a huge percentage. India, as a developing nation, cannot afford such travel bans as it would impact the economy adversely. Thus, India needs to consider the situation, the possible consequences of its failure to control the virus in its territory, and the further consequences thereof.   

Critical analysis:

The travel ban imposed by the US is supposed to be effective in mitigating the risk of the spread of the COVID-19 in American countries. However, such a ban would pose problems for various airlines as well as the political authorities. The countries with a lower economic stand would suffer more than others and the balancing would be a herculean task thereafter. Also, the resultant economic loss and political troubles could end up in strained relations between these nations and pose problems in co-operation and diplomacy in the future. 

Conclusion:

It can be easily interpreted that upon the declaration of the COVID-19 as a pandemic, the imposition of travel bans is a part of the plans fleshed out to control the spread of the pandemics and are indeed necessary. However, like all coins have two sides, these travel restrictions will result in economic and political sufferance and may result in strained relations between the states who have imposed travel bans and upon whom they’ve been imposed. 

Author: Himanshu Yadav from Faculty of Law, University of Allahabad, Prayagraj.

Editor: Tamanna Gupta from RGNUL, Patiala

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.

Senate impeachment process in the USA

Reading time: 6-8 minutes.

With the 2020 presidential elections around the corner, the race for the coveted position has become controversial. Recently, the news of the impeachment proceeding against the 45th US President Donald Trump captured headlines all over. The impeachment of President Trump took place on December 18, 2019, after the 230 votes were cast in the favour of the House of Representatives against the 197 against it.

There were two charges levelled against him by the key committee viz., abuse of presidential power and obstructing Congress. The article of abuse of power contains the alleged solicitation of foreign help by Trump to sway the 2020 election to his prejudice. The second article is the obstruction of congress by failure to cooperate in the investigations of the House.

Trump is the third President to face the impeachment trial of Senate after Andrew Jonson in 1868 and Bill Clinton in 1998. The said process commenced in the backdrop of a whistle-blower complaint against President Trump in August 2019. The complaint was filed by an anonymous CIA officer in a letter in which showed his concern regarding the telephonic conversation between President Trump and his Ukrainian counterpart Volodymyr Zelensky dated July 26, 2019.

The controversy revolves around the alleged phone call made by President Trump to President Zelensky to congratulate him on his election victory. However, the two spoke of much more, as alleged by the officer on the account of representation by almost a dozen people who overheard the conversation between them.

The phone call was made after the United States suspended its $400 million military aid to Ukraine. It was purported to be a ‘bargaining chip’ to create pressure on Ukraine to investigate into the discredited allegations of corruption against the former Vice-president and Democrat’s 2020 presidential election top horse Joe Biden. It was done so to strengthen Trump’s chances for his possible second tenure in the White house.

What is the stated purpose behind the impeachment?

On December 10, 2019, two articles of impeachment were passed by the key committee viz., (i) abuse of power and (ii) obstructing the Congress. The House of Representatives voted on these two charges against President Trump. The impeachment proceedings stand on two cornerstones.

The first is Trump’s attempt at using foreign influence to rig the 2020 presidential elections, by sledging his political opponent to boost his re-election agenda. The second allegation was levelled due to his refusal to cooperate with the Congressional inquiry.

The Ukraine Scandal – Background to the current controversy

For a better understanding on the context of Trump’s impeachment, we turn back to the epicentre of the incident: the Russian invasion in Ukraine in 2014. At that time, Biden as the Vice-president constantly persuaded President Obama to take stringent measures against Russia, to which the President was hesitant. Later, Biden prompted the corruption rampage in Ukraine by persuading its leaders.

It came at the time when Joe Biden’s son, Hunter Biden was appointed on the board of a Ukrainian gas company. Trump alleged that Joe Biden abused his vice-presidential power and influence to bury the corruption investigations implicating his son. However, this imputation was widely discredited, and the allegations were not proven substantial against neither Joe nor Hunter Biden.

What is the impeachment process in the US (for the Head of Executive)?

The Constitution of the United States gives to the Congress the authority to remove the President of the United States from office by impeachment in two separate proceedings:

  1. The first one takes place in the House of Representatives which impeaches the president by approving articles of impeachment through a simple majority vote.
  2. The second proceeding, the impeachment trial, takes place in the Senate.

Conviction on any of the articles/ charges requires a two-thirds majority vote and results in the removal from office. The impeachment process is mainly governed by Article I, Section 2, Article II, Section 4 and Article I, Section 3 of the Constitution of the United States.

Article 1, Section 2 of the Constitution of the United States gives to the Speaker, the sole power of impeachment. The House of Representatives has the exclusive power to impeach the President and Senate conducts the trial and investigation for the same.

The House thus can exercise discretion over whether to impeach an individual and what articles of impeachment will be presented to the Senate. The President of the United States can be impeached only on the grounds of Treason, Bribery, or other high Crimes and Misdemeanours.

The trial is conducted by Senate and is presided by the Chief Justice. After the trial is concluded, for the conviction of the President, a two-thirds majority of the present Senators is required on one of the articles brought by the House.

The judgment of the Senate shall be restricted to the removal from Office, and disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States. However, the Party convicted shall be liable to the trial and judgment of the Law in force.

The current status

After the voting in the House of representatives, the impeachment of Trump is in its second stage. The process is set to move to the senate for the trial proceedings presided by the Chief Justice.

What is the impeachment process in India (for the Head of Executive)?

Article 56 of the Constitution of India provides that “the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in article 61.” Article 61 of the Constitution of India states that to start the impeachment proceeding, a 14-day prior notice signed by not less than one-fourth of the total number of members of the house is provided mentioning their intention to move a resolution proposing to prefer charges against the president. Now that resolution must be passed by a two-thirds majority of the house.

Once the resolution is passed and a charge is preferred by a house, the other house must investigate the charge or cause the charge to be investigated. In this stage, the president is given the right to appear and represent himself at such an investigation.

After the investigation, if the house which investigated the charges, passes a resolution by two-thirds of the total membership, stating that charges preferred against the President have been sustained, such resolution will result in the removal of the president from his office from the date on which it was passed.

Conclusion

The Democrats are all set to overthrow Trump’s regime but as the impeachment process is proceeding, questions are also arising as to the consequences of the impeachment. If he is convicted by the senate, Vice President Mike Pence would take his place. If he is not convicted there can be a two-way effect on his campaign.

It may either strengthen it by amassing huge support against the impeachment and can prove a fundraiser boon; or it may completely backfire, and can hamper his election campaign.

Author: Sakshi Jha from Hidayatullah National Law University, Raipur.

Editor: Anna Jose Kallivayalil from NLU, Delhi.