The US president has called El-Sayed a “jihadist” and a member of the Muslim Brotherhood, a designated foreign terrorist organisation under US law. There is no evidence to support these claims. However, the nature of the president’s remarks suggests an intent to damage El-Sayed’s reputation among Michigan voters.

In many circumstances, El-Sayed would have a strong defamation claim regarding such statements. But a court would probably be unable to consider a case against the president or other members of the federal government because of the US Supreme Court’s doctrine of sovereign immunity, which bars defamation claims against federal employees.

In its most basic form, immunity means exemption from legal process. Within the US legal framework, sovereign immunity is based on Crown immunity, a relic of English common law grounded in the principle that “the king can do no wrong”. The doctrine still exists in the UK: the reigning monarch cannot be sued for defamation. But the Crown — meaning the government and its servants — can be sued under the Crown Proceedings Act of 1947.

The US Supreme Court adopted the concept as a doctrine applicable to the federal government in the 19th century, and Congress codified it in the 1940s.

As understood by the Supreme Court and reflected in federal law, sovereign immunity means that the federal government “may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction”. The US has waived sovereign immunity in certain specific cases, but it retains the protection for defamation claims.

Under federal law, the Department of Justice (DoJ) intervenes when a federal employee is sued for defamation by filing a certification that the employee was acting within the scope of their employment at the relevant time. The case is then removed to federal court, the employee is dismissed from the action, and the US is substituted as the sole defendant.

Because the US has not waived sovereign immunity for defamation, the case is dismissed because the courts lack legal authority to hear it.

The Supreme Court has yet to rule on whether members of Congress or the president are federal “employees” for the purposes of sovereign immunity. However, the federal circuit courts that have considered the question have held that legislators are protected, and one federal circuit has expressly held that the president enjoys the same protection.

Those courts have also adopted a broad interpretation of sovereign immunity regarding defamatory comments made by federal legislators on social media. They have held that posting on social media falls within the scope of their employment. Such activity is considered part of the “wide range of legitimate ‘errands’ performed for constituents” that are “calculated to serve the interests of … constituents by informing them of Congress members’ views regarding a topical issue”.

In practice, this means that members of Congress, and potentially the president, are above the law when it comes to defamation. That protection remains even when their statements may mislead the electorate on issues affecting how people vote.

This exposes the paradox of sovereign immunity. In a democracy founded on the principle that the people are sovereign, sovereign immunity allows government agents — those who serve the public — to avoid liability for legal wrongs committed against the same people.

Regardless of the merits of a claim, sovereign immunity prevents the courts from evaluating it. The doctrine therefore effectively shields federal employees from laws that apply to everyone else.

Bad for American democracy

One of the most obvious problems with sovereign immunity is that it conflicts with the central principle of the American constitutional framework: no one is above the law. It is particularly perplexing that the Supreme Court derived sovereign immunity directly from the British notion of Crown immunity, given that the US was founded on an explicit rejection of the English monarchy.

Judges have frequently criticised sovereign immunity in this context, particularly its origins in Crown immunity. As a federal judge noted in 1954, although the US draws extensively from Britain on the subject of immunity, “In Britain the government – the Crown and Parliament – is the sovereign” while in the American system, “the people are the initial and also the residual sovereign”. The judge concluded: “After some variations the Supreme Court has in recent years declined to gel the basic theory of sovereignty in our system.”

A federal judge made a similar point in 2011: “Two hundred and thirty-five years after we rid ourselves of King George III and his despotic ascendancy over colonial America, we cling to a doctrine that was originally based on the Medieval notion that ‘the King can do no wrong’.”

The Supreme Court’s decision to retain the doctrine of sovereign immunity has produced a bleak reality for Americans in the current political climate. “We the people” have little or no recourse against defamatory attacks by those responsible for upholding US laws and the federal Constitution.

Eliza Bechtold is Programmes Manager and Research Fellow at the Bonavero Institute of Human Rights, Faculty of Law, University of Oxford.

This article is republished from The Conversation under a Creative Commons license.