America's allies were already nervous about the upcoming US elections. Now, with the US Supreme Court granting the president legal immunity and an unprecedented expansion of executive power, some analysts in those countries are even more worried about the credibility of US power.
In Asia and Europe, allied leaders have grown accustomed to dealing with threats from authoritarian leaders in Russia, North Korea and China, but the idea that they might also have to deal with an unconstrained American president is an unsettling prospect.
“If the president of the United States is not bound by criminal law and has that level of immunity, other leaders of allied countries cannot trust the United States,” said Keigo Komamura, a law professor at Keio University in Tokyo. “We cannot maintain a stable national security relationship.”
Komamura added that the Supreme Court's decision created the impression that the U.S. president can act above the law. “This may be an insult to the United States, but it's not that different from Xi Jinping in China,” he said. “The rule of law has become the rule of power.”
While some countries grant limited immunity to their leaders while in office, America's closest allies — Japan, South Korea, Australia and the United Kingdom — do not grant any of the blanket immunity that the Supreme Court's decision this week appears to grant.
The Supreme Court's decision granting the president immunity from criminal prosecution for official conduct – a term the court itself defined vaguely – “is not in keeping with international standards,” said Rosalind Dickson, a law professor at the University of New South Wales in Sydney. “I think what's happening in the United States with the Supreme Court decision and the presidential election should be of significant concern to all of America's allies.”
In South Korea, political leaders have virtually no legal protection from criminal prosecution after leaving office and presidents are limited to one term. Four of the last eight former presidents were convicted and imprisoned after leaving office for corruption or other crimes committed while in office.
“I think a lot of Koreans are proud of the fact that no one is above the law, not even the president,” said Ramon Pacheco Pardo, professor of international relations at King's College London and director of Korean studies at the Vrije Universiteit Brussel. “But in the United States, presidents seem to be born differently than in other nations.”
Still, the frequency of criminal prosecutions of senior government officials in South Korea has contributed to growing political polarization, with some supporting the punishments as acts of justice and others seeing them as little more than political vendettas engineered by the new president.
South Korean presidents are entitled to immunity from criminal prosecution while in office, except in cases of “insurrection or treason.” No such provision was expressly included in a U.S. Supreme Court decision that ruled that former President Donald J. Trump was entitled to immunity from prosecution for trying to overturn the results of the 2020 presidential election.
In Japan, the constitution gives all members of the Diet immunity from arrest while in office, but not from criminal prosecution, Komamura said. The prime minister, who is also a member of the Diet, is also covered by this provision.
One of Japan's biggest scandals of the 1970s was the indictment of former Prime Minister Kakuei Tanaka on bribery charges for accepting $1.6 million from Lockheed to arrange the purchase of aircraft for All Nippon Airways, Japan's largest airline.
Even in countries where political leaders have some immunity, it is usually more narrowly defined: in the UK, MPs have broad legal protection from prosecution for political speech, but they have no immunity from criminal laws that regulate citizens.
For example, while in office, former Prime Minister Boris Johnson was fined by police for attending a lockdown party in Downing Street in breach of coronavirus laws enacted by his own cabinet during the pandemic.
But even when legal immunity is more strictly defined, the law may not be as big a factor as political culture.
In Malaysia, executive immunity for the president is not as broad as that given to him by the U.S. Supreme Court, but a culture of impunity means few leaders are ever summoned to court, despite widespread corruption.
Former Prime Minister Najib Razak long avoided conviction in a multi-billion-dollar corruption scandal because he controlled the country's courts and media.
He was convicted of seven corruption charges in 2020 and sentenced to up to 12 years in prison after the opposition took power in 2018. But earlier this year his sentence was halved and his fine reduced to a quarter of the original by the country's pardons board, sparking speculation he may receive a royal pardon.
“Maybe Trump can get a pardon like our good friend Najib in Malaysia,” one X user posted on Monday.
Whether legal prosecution can thwart the plans of politicians determined to stay in power is another matter.
In Israel, all members of parliament, including the prime minister, enjoy absolute immunity from prosecution for acts committed in the course of their official duties, a protection not too different from that defined in US Supreme Court decisions.
But prosecutions have not been deterred. Israeli Prime Minister Benjamin Netanyahu has doggedly sought to stay in power despite being indicted on charges of bribery, fraud and breach of trust nearly five years ago. Before the Gaza war, Netanyahu sought to expand the power of Israeli courts, sparking massive protests in Israel.
In all this, he is breaking away from the precedent set by his predecessor, Ehud Olmert, who resigned after being embroiled in a corruption investigation.
Adam Sinner, a law professor at Reichman University in Tel Aviv, said the Supreme Court's decision essentially introduced the same kind of immunity into the United States that Israeli leaders have enjoyed since 1951. But U.S. presidents have enjoyed de facto immunity for decades, he said.
“Nobody's talking about prosecuting them after they leave office,” Mr. Sinner said. The closest anyone came was discussing whether to prosecute Richard Nixon in the Watergate scandal, but his successor, President Gerald Ford, pardoned him before a trial could take place.
The new U.S. court ruling has taken on particular urgency abroad given the prospect that Trump could become president again.
Cinar said Trump's disregard for legal and political norms, widening political divisions and a fundamental distrust of the U.S. government have made the reaction to the Supreme Court's decision more dramatic than at other times.
“If this decision had been made in the 1950s under President Eisenhower, would we have been as concerned or outraged? Probably not,” he said. “If we no longer trust politicians to do good things, then something else needs to step in — the criminal justice system, for example.”
“But if politicians' immunity is growing while trust in political institutions is declining, then that's a problem,” he added.
Choi Sang-hoon He contributed reporting from Seoul. Tashni Sukumaran From Kuala Lumpur, Malaysia.
