The twists and turns of leaving the top job

Politics is a rough old trade and never rougher than when the electorate Pvicts the British prime minister from his official residence at 10 Downing Street. The moment the leader of the opposition wins a general election, like the Labour Party won last Thursday, the outgoing prime minister has to quit Downing Street forthwith.

Sometimes removal vans attend its back entrance even earlier if the writing is on the wall ahead of the official result. The opposite happens in the US where the incumbent has 11 weeks packing up time. Except when president Trump lost last time when it was not clear he would leave the White House at all until his presidential helicopter taking him away was well out of sight on President Biden’s inauguration day.

US presidents take office on January 20, for four years. Elections are held in November near the end of the fourth year and an incumbent who loses remains president until the end of his four-year term. The winner does not become the president until he is inaugurated on January 20. It is one of the oddities of the transfer of power in the US thatthe outgoing president retains all the powers and immunities of the office of president during the interregnum despite losing electoral approval.

The transition is normally smooth – as it was when president Carter lost to president Reagan and when George Bush Senior lost to president Clinton when both presidents-elect were treated with dignity and respect commensurate to their political status.

But it was anything but smooth when Trump lost to Biden in the November 2020 election. Trump did not accept he lost and sought to frustrate the transfer of power and engaged in conduct intending to prevent Biden from assuming power on the grounds that the election was fraudulently stolen from him. He is being prosecuted for his conduct, and he challenged his prosecution in the US Supreme Court on the grounds that even if his actions were criminal he is protected by presidential immunity.

The principle behind presidential immunity is based on the separation of powers that requires the president as head of the executive branch to be free to act in the public interest without fear that he could be prosecuted in the exercise of his official functions.

The case against Trump is that he unlawfully pressured his acting attorney-general to investigate an alleged election fraud in order to substitute his own electors for those elected; various state officials to convince them that election fraud had tainted the popular vote count in their states; and his vice-president to use the latter’s ceremonial role as president of the Senate fraudulently to reject legitimate electoral votes or send them back to state legislatures for review.

There are also charges regarding Trump’s actions on January 6, 2021 when it is alleged he sought to prevent the lawful certification of the election result by a public address near Capitol Hill and in tweets to his followers.

On July 1, 2024, by a majority of six to three, the justices of the US Supreme Court decided that a president is immune from prosecution for official acts but not for unofficial acts. In relation to official acts it ruled that he has absolute immunity in respect of his core duties and a presumptive immunity in respect of the exercise of other powers so long as they are not ““not manifestly or palpably beyond his authority.”

In doing so the Supreme Court failed to analyse the difference between functions Trump engaged in as a candidate who happened to be president from his functions as president who happened to be a candidate.

The case was hailed as a victory for Donald Trump and up to a point it is because although the court sent the case back to the lower court to determine whether the acts Trump has been charged with were official or unofficial functions, its understanding of official was literal.

The literal meaning of official adopted by the Supreme Court focuses on a formal classification of what is official that licenses the president to commit crimes under cover of immunity – such a licence to commit crimes accorded to the office of US president harms the reputation not only of the presidency but also of the US Supreme Court and the US itself.

The reason for presidential immunity, however, is to act as a shield to protect presidential acts from incidental criminal liability rather than as a cover for deliberate crimes committed under the mantle of the president’s official functions.

In Cyprus the position is governed by the constitution that states the president and vice-president of RoC are immune from prosecution but with important exceptions set out in the constitution itself – as the office of vice-president has fallen into disuse, the relevant provision only applies to the RoC president.

The exceptions to immunity in the constitution are that the president may be prosecuted for high treason or for an offence involving dishonesty or moral turpitude and must be suspended from performing his functions pending trial, leave office if convicted and resume his functions if acquitted.

The president is not otherwise liable to prosecution for any offence committed in the execution of their functions but could be prosecuted for any other offence committed during his term of office after he ceases to be president.

The republican aspects of the much maligned constitution of Cyprus were inspired by American constitutional theory and the immunities accorded to the executive branch in Cyprus reflect a clear balance between the principle of equality under the law and freedom of executive action.