Immunities and inequality before the law: Reflections on recent events

Too much time and energy is spent in making government and public authorities ever more immune from legal liability

April 4, 2025| David Fabri4 min read
Donald Trump still faces charges of having plotted to overturn the 2020 election. Photo: ShutterstockDonald Trump still faces charges of having plotted to overturn the 2020 election. Photo: Shutterstock

Equality before the law did not always exist. Quite the contrary. Equality before the law is a massive human achievement secured over hundreds of years of idealism, clear thinking, persistence, and a couple of revolutions.

There is however increasing inclination for government officials and public entities to secure, for themselves, higher degrees of immunity from legal liability for their actions; in effect placing themselves above the law and extricating themselves from judicial scrutiny.

David FabriDavid Fabri

In Malta, too much time and energy is spent in making government and public authorities ever more immune from legal liability, disclosure, transparency, and consequently also from accountability.

Exemptions and immunities are highly tempting and it is no wonder that they are regularly sought by people in authority to shield themselves from civil and criminal liability for their actions in a way that common citizens, workers and consumers cannot. They give rise to an unfair preferential status and diminish the principle of equality before the law.

Government recently declared its intention to introduce immunity for civil servants and officials who could otherwise be prosecuted criminally and civilly. (At date of writing, the legal provisions were not yet public.) The implication is that the ordinary citizen would not enjoy such privileged treatment and would instead face the music and risk being held liable for his acts. 

My 2002 book on financial services regulation (MidSea Books, pp 178 to 182), dealt with the issue of “Suing the Regulator”, highlighting how various laws have made this very difficult to achieve.

Public authorities are inserting exemptions and immunities in their respective legislation to safeguard their own interest and convenience and that of their officials. These public entities usually write the rules for themselves and do their best to shield themselves from the courts and possible claimants.

Presidential pardons too may give rise to potential injudicious consequences, and, if taken too far, would undermine the judicial process amid suspicions of selective favouritism.

A case in point in the US was the full presidential pardon extended indiscriminately by newly elected President Trump in favour of some 1300 offenders guilty of various offences, some serious, during their attack on the US Capitol in an attempt to subvert the democratic process.

This wholesale pardon constituted an affront to the justice system. Trump, a convicted felon, had himself been found guilty of wrongdoing by US courts on several counts, including accounting fraud and illegal payments to an escort. Sentencing was withheld once he was elected president and the Department of Justice immediately halted all pending investigations against him.

In one instance, a judge released him unconditionally, despite a guilty verdict, indeed also wishing him ‘Godspeed’ in his presidency. Had Trump failed to be elected, he would have been subject to sentencing and a possible jail sentence. 

Finally, let us briefly consider the implications of:

Trump v United States 2024

SUPREME COURT OF THE UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 23–939. Argued April 25, 2024—Decided July 1, 2024)  

In its judgement of July 1, 2024, the US Supreme Court, by a 6-3 majority, held that a US president enjoys “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.”

It is the first time since the nation’s founding that the Supreme Court has declared that presidents can be shielded from criminal charges, substantially placing them above the law. The Court also declared that immunity does not extend to “unofficial” (personal) acts. President Trump’s lawyers had instead fought fiercely for absolute immunity in all cases.

Justice Jackson dissenting stated: “The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong…..From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please - including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.”

“The President is now a king above the law,” wrote Justice Sonia Sotomayor, also dissenting.

Concluding outcomes and propositions:

A sitting president is in a privileged position and cannot be prosecuted criminally (while in office). The presidential immunity declared by the Supreme Court applies solely to official acts. It does not make the president above the law in all circumstances.

An acceptance of a bribe would still be unofficial (personal) conduct and would be punishable. A corrupt or treasonous president can therefore be subject to criminal prosecution. It is also not an official act to pay hush money to an adult film star.

Trump still faces charges of having plotted to overturn the 2020 election. Lower courts will now have to determine whether or not Trump’s election interference actions and conduct during the January 2021 attack on the Capitol fell under his official duties, and are therefore privileged.

David Fabri LL.D., Ph.D. lectures on law and related subjects at the University of Malta.   He has authored three books in a series ‘Studies in Maltese Regulation’. He is the chairman of the Malta Law Academy, the academic arm of the Chamber of Advocates.

This opinion was first published in The Corporate Times. 

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