There are legitimate reasons political leaders enjoy special protections from judicial scrutiny while in office, such as the prevention of politically motivated investigations. That’s why a majority vote in the House of Representatives and a two-thirds majority among senators are needed to complete the impeachment and subsequent trial. But would there be ways to adopt a less politicized approach?
Europe’s lessons may not be fully applicable, given the unique U.S. political system, but some Western nations have indeed found ways to increase accountability without exposing their leaders to politicized trials.
For one, several European nations treat their prime ministers, presidents or chancellors like normal members of parliament whose immunity can be withdrawn far more easily than within the U.S. impeachment framework. A number of countries also do not limit the crimes that can trigger impeachment proceedings to bribery, treason and other high crimes or misdemeanors, as is the case in the United States.
When France overhauled its presidential impeachment system in 2014, it dramatically lowered the threshold of support needed to request a vote on triggering proceedings to 10 percent of parliamentarians. A two-thirds majority is still needed to launch the process itself, however. And whereas presidents could previously be impeached only for “high treason,” the legislation now broadly defines impeachable offenses as any “breach of their duties that is clearly incompatible with the exercise of their mandate.” Unlike in the United States, impeachment doesn’t effectively result in the indictment of a head of state — instead, leaders maintain their immunity for the remainder of their initial five-year term even if parliament deems them to be guilty of crimes.
German leaders are far more exposed to judicial scrutiny. The mostly ceremonial German presidents enjoy immunity as long as they’re in office, even though parliament can vote to withdraw that protection by a simple majority. The same applies to Germany’s political leader, the chancellor, who usually is protected only by their immunity as an MP. (German chancellors normally also run for parliament and aren’t directly voted into the top office.)
Rallying a simple majority to withdraw immunity is far less challenging in Germany than in the United States, given that the country’s multiparty system that makes it easier for opposition parties to build coalitions to remove a politician’s protections. Any parliamentary vote to withdraw immunity from a chancellor would usually also be accompanied by a leadership challenge, likely resulting in both the loss of immunity and the loss of the chancellor’s office.
At least one German federal state, Brandenburg, has chosen a different approach: Prosecutors there can pursue charges against MPs as long as parliament does not vote to prevent the proceedings — rather than having to decide whether to allow an investigation.
In countries that rely on the Westminster system — Britain, New Zealand, Australia, Canada and others — the definition of immunity is much narrower. MPs and leaders are protected from investigations into alleged crimes committed in office only, and those protections can be suspended if deemed necessary by parliament. There are no laws specifically preventing the prosecution of prime ministers, but a British court still ruled in 2016 that former prime minister Tony Blair could not be charged over alleged war crimes committed during the invasion of Iraq in 2003. In their verdict, the judges argued that a trial would inevitably expose state secrets, which suggests that different kinds of accusations might have moved forward.
At least theoretically, British lawmakers can also impeach a sitting leader or fellow parliamentarian, even though parliament’s own research division has called that possibility “obsolete.” The last time parliamentarians chose to go down that path was in 1806, and no prime minister has ever been impeached. Britain’s original concept of it effectively turned lawmakers into a jury, equipped with the power to investigate cases and determine appropriate sentences. Today, parliament would likely topple a prime minister accused of crimes by triggering a vote of no confidence.
In parts of Europe where democracy was established more recently than in Britain, practices differ to some extent. Greece’s parliament, for instance, must approve any prosecutions against sitting MPs, including the prime minister.
But elsewhere, leaders have worked to protect themselves from possible trials. In 2008, former Italian prime minister Silvio Berlusconi benefited from legislation that protected the country’s prime minister, president and the speakers of both parliamentary chambers from lawsuits. At the time, Berlusconi was under investigation for corruption.
The law was later overturned by the country’s constitutional court and the former prime minister was subsequently sentenced to multiple jail terms, but had all of them waived or reduced.
To Berlusconi’s critics, his success at avoiding harsher punishments may also serve as a warning about the flaws of the system. Parliament’s support for Berlusconi appears to have interfered with his prosecution for years after the end of his term.