The Shield of the Presidency: Presidential Immunity and Accountability in France and the United States

Eleonora Bottini

Presidential immunity from criminal prosecution while in office is typically justified on the basis of the separation of powers, preventing judicial interference in the functioning of the executive branch. Semi-presidential and presidential systems such as those in France and the United States both recognize such protection. However, presidential immunity raises the critical question of the distinction between legal and political accountability. While the distinction is conceptually clear, it often proves difficult to maintain in practice. One consequence of the conceptual confusion concerns the accountability of former presidents after they leave office, when impeachment or destitution are no longer available. In these circumstances, how can former presidents be held responsible for illegal, yet ostensibly official, acts? Comparative analysis yields important insights. Drawing on concrete cases from both France and the United States, this Article argues that while presidential immunity is a core feature of the separation of powers in constitutional democracies, an expansive interpretation risks enabling an unchecked executive—an especially pressing concern in light of contemporary threats to liberal constitutionalism in stable democracies. The central challenge lies in defining the boundary between official and unofficial acts, and in determining whether immunity should attach to the individual or to the nature of the act. If individuals are the primary consideration—as the 2024 U.S. Supreme Court decision in Trump v. United States seems to suggest—then all acts performed by presidents and vice presidents may fall under the protection of immunity. Conversely, if the focus is on the character of the act, a critical question emerges: Can clearly illegal actions still be considered official, or does their illegality remove them from the scope of immunity? After examining the origins and evolutions of immunity doctrines in both France and the United States, this Article advances the thesis that presidential immunity is directly proportional to presidential power and can act as an accelerator of presidentialization.