미국 대통령의 공식적 행위에 대한 면책특권의 범위와 정당성 -Trump v. United States 사건을 중심으로-

In August 2023, a U.S. federal grand jury indicted former President Donald J. Trump on four charges. According to the indictment, Trump is accused of spreading false information alleging election fraud after losing the November 2020 presidential election and of conspiring to obstruct the collection, counting, and certification of the election results. Because the U.S. District Court for the District of Columbia and the Court of Appeals categorically rejected any form of presidential immunity, they did not analyze whether the indicted conduct should be classified as official or unofficial. However, in Trump v. United States, the Supreme Court reversed the lower court decisions, holding that, in light of the principle of separation of powers, a former president may be entitled to absolute immunity from criminal prosecution for actions taken within the perimeter of their conclusive and exclusive constitutional authority. The Court further held that while there is no immunity for unofficial acts, a president is entitled to at least presumptive immunity for all official acts. The standard for what constitutes an official act is that the president’s conduct is considered within the outer limit of official duties unless it is “manifestly” or “palpably” beyond presidential authority. If the president’s conduct is deemed official and thereby protected by presumptive immunity, the next issue is whether that immunity can be rebutted. Unlike absolute immunity, which is not subject to rebuttal, presumptive immunity may be overcome if the criminal prosecution does not pose a significant risk of impairing the functions and authority of the Executive Branch. Conversely, if prosecution threatens such impairment, the presumptive immunity cannot be rebutted. The Supreme Court remanded the case to the U.S. District Court to determine which parts of Trump’s conduct were official and which were unofficial. This paper analyzes the constitutional issues raised in Trump v. United States. First, it examines the differences between the majority and dissenting opinions regarding the application of absolute and presumptive immunity. Second, it explores the distinctions between civil and criminal cases in the context of presidential immunity, and analyzes how the majority and dissent interpreted presidential immunity differently under the principle of separation of powers. Third, the paper analyzes the majority and dissenting views on whether immunity should apply to Trump’s conduct involving the Department of Justice, the Vice President, and state officials following the 2020 presidential election. Lastly, it examines the legal standards for presidential criminal non-prosecution in Korea, and the possibility of introducing presidential immunity in our country was discussed. While there is a need for the president to exercise strong law enforcement authority and make bold and swift decisions, there is also a necessity to pursue the public interest through presidential accountability, restraint, and fair enforcement of criminal law. If the scope of presidential immunity is overly expanded, it may become difficult to effectively check abuses of power. However, given that the president—unlike ordinary citizens or even other high-ranking officials—holds ultimate responsibility for the administration and operation of the nation, a certain degree of immunity from criminal prosecution should be guaranteed for acts within the sphere of official duties. On that principle, maintaining a balance between presidential immunity and accountability is essential for upholding constitutional values and the continuity of democracy. This case illustrates the need for a deeper discussion on the boundaries of presidential power, immunity, election-related conduct, and accountability.