Abstract. The impeachment of Donald Trump, whichever way the final outcome of the vote in the Senate goes, is a unique case in US history, in that it is the first time that a President is being subjected twice to impeachment during his mandate, and also for the gravity of the facts at the origin of the second impeachment: the assault of Congress, an event which opens a deep wound, difficult to heal, in the democratic life of the country.
Apart for the individual case in point, the provision in the US Constitution for impeachment or similar procedures, deserves attention both for the identification of a possible connection between the legal status of the Head of State and the form of government, hence the doctrinal distinction between “constitutional”, “legal” or “political” responsibility, and for the proviso of functional immunities, of which impeachment represents the exception in the case of serious criminal acts.
Hence the interest in examining the legal status of the Head of State in a monist form of parliamentary government, such as the Italian one, in a semi-presidential regime such as the French one, in addition to the case of a presidential republic such as the one in the US.
Here again the emphasis placed on the strict and rigorous interpretation of the “functional” act, so that, in a State of law, immunity does not turn into a privilege, an unacceptable derogation from the principle of equality.
SUMMARY: 1. Introduction. – 2. The facts behind president Trump’s impeachment. Examination of the procedure and the attributable crimes. – 3. Comparative law: an outlook. The responsibility of the Head of State for high treason or attack on the Constitution in Italy. The breach of duties patently incompatible with the exercise of the presidential mandate in France. – 4. Concluding remarks. The principle of equality and functional immunities. The difficult balance.
To read the Reflection, click on “open file”.
* Saggio messo a punto il 7 febbraio 2021.