In July 2024, the Supreme Court of the United States held that President Donald Trump enjoys absolute immunity for acts he committed within his constitutional powers as President, even if they were unlawful under U.S. law. Under international law, upon vacating office, a head of state continues to enjoy functional immunity for prior acts in their official capacity, which may include acts that exceeded the person’s authority. In this Article, we analyze the Supreme Court’s ruling from the viewpoint of international law. We explore the divergences between the Supreme Court’s approach to official and unofficial conduct and that of international law. In particular, we address the Court’s tripartite distinction between immunity and presumptive immunity for official conduct, and non-immunity for unofficial conduct—an approach that does not exist in international law. We consider how the Supreme Court’s categorization of activities will have implications both domestically and internationally.

We are delighted to write this contribution in honor of Professor David Stewart whose work on immunity law in the United States and internationally is consistently insightful and thoughtful. His enthusiasm for the intricacies and implications of this area of law is infectious, and his support for colleagues, junior and senior alike, is a model for us all.

Continue Reading The “Loaded Weapon” of Presidential Immunity: An International Law Perspective on Trump v. United States