Tag Archives: immunity

Kyrgyzstan’s Elimination of Immunity for Ex-Presidents is No Win for Anticorruption

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Last October, the Supreme Court of Kyrgyzstan ruled that Kyrgyzstan’s law granting legal immunity to ex-presidents was unconstitutional on the grounds that Article 16 of the Kyrgyz Constitution makes all people equal before the law. Because the Kyrgyz immunity law was one of the broadest and most protective in the world, those of us who care about corruption might cheer this ruling as a win in Kyrgyzstan’s fight against corruption. However, viewed in context, the ruling portends problems for Kyrgyzstan’s nascent democracy and may even be counterproductive in the fight against corruption itself.

Many countries have ex-presidential immunity regimes. The downside of such laws—which exist throughout Central Asia and in countries as diverse as Burundi, France, and Uruguay­—is that, by making it difficult or impossible to prosecute a former president, these laws eliminate one of the most important deterrents to executive corruption. Kyrgyzstan’s law was especially problematic in this respect, as the immunity granted to ex-presidents was unusually broad—covering not merely conduct related to the former president’s exercise of her or his official duties, but any act committed during the term of office, with no exceptions even for high treason or other grave crimes. The Kyrgyz immunity law also protected an ex-president’s property, and it blocked searches and interrogation in addition to prosecution, thus stymying investigations even where the ex-president was just a witness. For these reasons, getting rid of the immunity law might seem like a step forward in the fight against corruption.

However, laws that grant immunity to ex-presidents also have an upside, especially in authoritarian states or fragile democracies. These laws may ease and encourage peaceful political transitions, because with no threat of prosecution, a sitting president may be more willing to peacefully cede power. One might therefore be worried about the impact of the Supreme Court’s decision on Kyrgyzstan’s fledgling electoral democracy. Those worries would be well founded given the political context in which the Supreme Court rendered its decision.

To understand why requires understanding recent events in Kyrgyz politics, and in particular how the Supreme Court’s invalidation of the ex-presidential immunity law appears to be part of a larger campaign by the current President to suppress political opposition led by his predecessor:

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Argentinians Cry Out “Cambiemos,” But Can They?

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In early January 2018, five prominent Argentinian officials were arrested on corruption charges, including Amado Boudou, Argentina’s former vice president. These arrests come on the heels of President Mauricio Macri’s landslide victory on a “Cambiemos,” or “Let’s Change,” platform—a promise to root out public corruption. Late last year, Argentina’s Congress passed a new anticorruption law, which punishes companies for corruption by blacklisting them from public contracts and levying fines of up to five times the amount companies have obtained by illegal means. The new law also requires corporate compliance programs for the first time. But, while these reforms are welcome, the Argentinian judiciary remains an obstacle to genuine progress in eradicating the rot of corruption.

While the Macri government should be praised for making steps in the right direction, its efforts will fall short unless something is done about Argentina’s judicial system. More specifically, Argentina’s judicial institutions suffer from three problems that impede effective anticorruption efforts: Continue reading →

The Right Amount of Legislative Immunity

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It many ways, legislative or parliamentary immunity seems an anathema to the fight against public corruption. Legislative immunity shields legislators from prosecution for acts taken within their legislative ambit, sometimes even shielding them when those actions are corrupt. As my earlier post on Senator Menendez hints, even when it seems clear that legislators’ actions are not protected, the very existence of legislative immunity gives legislators room to argue and prolong their court cases – all the while continuing to serve in the legislature. Legislative immunity can undermine public confidence in lawmaking and perpetuate a sense of impunity in public officials.

That said, there is a reason most democracies have some form of legislative immunity: not because individual legislators should be shielded from prosecution, but because the legislature as an institution should be protected from intrusion and second-guessing by prosecutors and the judiciary. Of particular concern are politically-motivated prosecutions brought by the government against legislators from opposing parties. Turkey provides a recent example. This past May, Turkey’s legislature voted to lift parliamentary immunity and pave the way for prosecution of pro-Kurdish legislators accused of supporting terror (see here). While concerns about terrorism are very real in Turkey, this move falls clearly within President Erdogan’s broader efforts to consolidate power and move away from democratic rule.

Ultimately, both concerns about impunity and legislative independence are valid. The question is how to strike the appropriate balance. Legislative immunity can take many forms, and there is likely no single “best” model. The most appropriate form of legislative immunity will likely depend instead on a range of contextual factors. Here I consider several critical ones:

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Senator Menendez and the Great Speech or Debate Clause

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The corruption allegations against Senator Robert Menendez (D-NJ) have the hallmarks of a classic Capitol Hill scandal. The Department of Justice’s Public Integrity Section indicted Senator Menendez last spring for allegedly using his official position to promote the business and personal interests of his friend and long-time donor Dr. Salomon Melgen, a Florida ophthalmologist. According to the allegations, Dr. Melgen provided Senator Menendez with lavish trips to Florida, Paris, and the Dominican Republic, as well as political contributions to allies. In exchange, Senator Menendez allegedly interceded with immigration authorities to help Dr. Melgen secure visas for his foreign girlfriends, sought to influence an administrative enforcement action against Dr. Melgen for $8.9 million in Medicare overbilling, and pressured the Executive Branch to intervene in Dr. Melgen’s contract dispute with the Dominican Republic.

Unsurprisingly, this legal fight has been ugly. Senator Menendez and his legal team have accused the prosecution of gross misconduct in the grand jury investigation, of “misapplying” and “making up from whole cloth” certain legal standards, and “disparaging defendants’ motives and defense counsel.” The prosecution, for its part, has accused the Senator’s camp of deploying “vituperation” instead of substance and of advancing “false factual premises and specious legal reasoning.”

The latest iteration of this saga is taking place at the appellate level, where the Third Circuit recently heard oral arguments on Senator Menendez’s assertion that his actions on behalf of Dr. Melgen are entitled to immunity under the U.S. Constitution’s “Speech or Debate” Clause (an argument the trial court rejected). The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” Like many legislative immunity clauses in other countries, the Speech or Debate Clause was born in part out of a desire to protect legislators from political prosecution for the views they express when legislating, and to encourage free and informed debate.

U.S. courts have interpreted the Clause quite generously over the years, reading it to cover not only actual speeches and debates, but also other “legislative acts” (such as voting on legislation, authorizing an investigation by a Congressional Committee, preparing reports, and holding hearings). Senator Menendez, however, argues for an even broader understanding of the conduct that qualifies as “legislative acts” shielded by the Clause. These arguments should be rejected. Not only are Senator Menendez’s claims legally dubious under existing precedents, but, if accepted, they would also hamstring the prosecution of classic quid pro quo corruption.

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Impunity and Immunity: When (if Ever) Should We Sacrifice Accountability for Past Corruption Crimes?

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I’ve been meaning to write a bit more about last month’s International Anti-Corruption Conference (other than my snarky reflections about anticorruption conferences generally). The conference theme was “Ending Impunity,” and indeed most of the panels and speeches emphasized, in one way or another, the importance of ending the culture of impunity and holding corrupt actors (criminally) accountable for their actions. I couldn’t agree more about the importance of ending the culture of impunity. Indeed, I suspect few people would dispute that objective; the controversies, such as they are, involve questions of means. And as a general matter, I’m also all for accountability. Who wouldn’t be? But here my commitment is more qualified, and I think the issue is a bit more complicated then some of the rhetoric sometimes implies. In fact, in the context of corruption offenses, there may be sometimes be good, or at least plausible, reasons for sacrificing accountability in order to advance some other interest.

I recognize that statement may be controversial, perhaps even heretical. Is it really ever OK to insist on less than full accountability for past corruption crimes? If so, when? The first panel I attended at the IACC, entitled “Breaking the Cycle of Impunity: Why Truth Telling and Accountability for Past Economic Crimes Matters,” brought these difficult questions to the fore. The four excellent panelists (Hennie Van Vuunen, Osama Diab, Gladwell Otieno and Transparency International Chair Jose Ugaz) all came out (unsurprisingly) against impunity and in favor of accountability. But as the subsequent discussion revealed, the impulse to hold the corrupt (fully) accountable sometimes conflicts with other legitimate interests. Although everyone agrees that those who commit corruption offenses should never have impunity, there are reasonable arguments for sometimes granting them (full or partial) immunity. Consider a few possible scenarios in which one might be tempted to exchange (full) accountability for something else: Continue reading →