The Supreme Court grants US presidents partial political immunity. This has caused criticism. But what is the situation in Germany?
Donald Trump called the ruling a “great victory”: The conservative majority on the Supreme Court decided on Monday that former presidents enjoy absolute immunity from prosecution for official acts during their time in the White House. The highest US court has thus further delayed the start of the election fraud trial against Donald Trump. It is considered unlikely that the trial in Washington will begin before the presidential election in November.
Critics see the ruling as a risky expansion of power for US presidents. President Joe Biden called the decision a “dangerous precedent.” The New York Times wrote: “As of Monday, the principle that no one is above the law has been suspended.”
Political immunity is intended to protect officials and elected representatives. It is controversial, and some consider it outdated. But what is the situation in Germany?
In the Federal Republic of Germany, the political immunity of the head of state is – unlike in the United States – even enshrined in the constitution, in Articles 46 and 60 of the Basic Law. The Federal President cannot therefore be prosecuted – unless the Bundestag lifts the immunity by a majority decision at the request of the public prosecutor.
Members of Parliament enjoy political immunity
Most recently, in 2012, the Hanover public prosecutor’s office applied for the lifting of the immunity of then-Federal President Christian Wulff. He was accused of taking advantage. Wulff forestalled a decision by the Bundestag by resigning from his office – and thus losing his immunity. He was later acquitted.
Members of the Bundestag and the state parliaments are also protected from criminal prosecution. The immunity of members of parliament is intended to ensure the functionality of parliaments and to prevent political opponents from being eliminated with politically motivated lawsuits.
The Federal Chancellor is not fundamentally protected from prosecution
There is one exception: if a politician is caught red-handed, he can be arrested. And the political immunity of parliamentarians can also be lifted. In the case of the Thuringian AfD leader Björn Höcke, the Justice Committee of the Thuringian State Parliament has already approved investigations against Höcke seven times. Most recently, on Monday, he was sentenced to a fine for using a banned Nazi slogan.
The members of the federal government, i.e. the Chancellor and his ministers, do not enjoy immunity in Germany, at least not because of their offices. However, since Chancellor Olaf Scholz and the ministers also hold seats in the Bundestag, they are protected from prosecution as members of parliament. Their immunity would therefore also have to be lifted by a majority in the Bundestag.