Many democracies have persecuted ex-leaders. Politics can be tough.
The indictment of former President Donald J. Trump on federal criminal charges is a first for the United States, but such cases have become fairly common worldwide. In the past two decades, several dozen countries have prosecuted a former head of government or state.
And while Mr. Trump’s allies have said repeatedly that such allegations — he was also sued separate state charges in New York in March — are the work of a “banana republic,” several cases have occurred in countries routinely ranked among the freest, most democratic, and wealthiest countries in the world.
In the past 15 years alone, Nicholas Sarkozy And Jacques Chirac from France, Park Geun-hye And Lee Myung Bak of South Korea and Silvio Berlusconi of Italy have all been prosecuted for corruption and found guilty. The list of criminally prosecuted persons also includes former democratically elected leaders of Argentina, Brazil, Pakistan, Peru, South Africa And Taiwan.
In 1980, Kakuei Tanaka, a former prime minister of Japan, was convicted. And prime minister Benjamin Netanyahu of Israel is currently on trial for corruption charges.
“It’s always a big deal when a former president or prime minister is indicted, but in most democracies it’s normal for them to be credibly accused of serious crimes,” said Steven Levitsky, a professor of government at Harvard who has spent about a dozen has written. of countries’ transition to democracy. The United States, he said, has been an outlier in its reluctance to indict a former leader.
“Political systems have to handle it,” he added. “They have to. Because the alternative – saying some people are above the law – is much worse.”
Prosecution can reflect that the rule of law is strong, that even the powerful are not above the courts and can be held accountable. But they can also show that the rule of law is weak, that the legal system can easily be used against political enemies.
“Many people will immediately assume it is for political reasons, and it will be very difficult, if not impossible, to convince them that it is a legitimate, non-political prosecution,” said John B. Bellinger III, deputy senior fellow at the Council on Foreign Relations in Washington and a top legal official during the administration of President George W. Bush.
That reaction is likely to be more serious, say political scientists, in a country where politics is highly polarized and partisan. If the accused’s political allies are willing to see how the legal process turns out rather than defend the accused leader, allegations of accusation bias typically gain less traction.
Nathalie Tocci, an Italian political scientist, has sobering advice for well-meaning prosecutors who judge such cases: “I don’t think you can do it right.”
That is not the same as advising.
“From a legal point of view, if you think a crime has been committed and you should proceed, just do it,” Ms Tocci said. “But there’s always a story about justice and a story about politics, and one should try to keep them separate, but that’s impossible.”
Authoritarian leaders have historically suppressed their opponents without much concern for even the appearance of due process. But in recent years there have been dozens of such governments have used courts insteadwith predetermined sentences, to publicly condemn their expelled opponents and frighten others into submission.
It is in democracies, where public opinion matters more and there is at least some expectation of impartial justice, that a prosecutor’s job is very delicate. The impartial application of the law can be portrayed as political retaliation, and vice versa, putting additional pressure on prosecutors to decide whether to proceed.
Mr Berlusconi, a three-time Prime Minister, has been prosecuted several times, convicted of tax fraud, had other guilty verdicts overturned on appeal and only escaped other charges by make the laws change.
Throughout it all, he, like Mr. Netanyahu and Mr. Trump, has spent years portraying himself as a victim persecuted by an out-of-control and politicized system, using that claim to rally his supporters and create scandal after scandal. to survive.
That combination, Ms Tocci said, could seriously damage public confidence in the justice system – the defendant’s supporters see the system as illegitimate, while the leader’s opponents see it as ineffective.
“If there is an acquittal, it could be proof that the justice system worked,” she said, “but people will argue that it was all for naught and politically driven.”
Still, she added: “Looking at the Berlusconi cases, I would still say it was right to do it, even if it made no difference, even if it extended his political life.”
Legal experts point to many ethical gray areas. A prosecution may focus on what may be a true crime, yet be politically motivated or up for debate.
Brazil’s Luiz Inácio Lula da Silva was convicted of money laundering and corruption, but the country’s highest court threw out the accusations in 2021 due to judge bias, after it turned out that the lawyer had extensive inappropriate personal communication with the prosecutors, consult with them about the strategy. Mr. Lula was released from prison after serving 19 months, ran for president again last year — and won.
Another dark area concerns forms of corruption that are practiced on a large scale and with impunity.
Justin Vaïsse, a historian and former French foreign ministry official, said Mr Lula “breached some rules and principles, but everyone else did the same thing and others probably did worse”, making him what some called a target of politics motivated selective prosecution.
Mr Chirac, he added, fell prey not to “arming the justice system” but to shifting ethical standards. After serving as president of France, Mr Chirac was convicted of creating bogus jobs for political allies when he was mayor of Paris decades earlier.
“Some of the things that Chirac did were common at the time,” said Mr. Vaïsse.
To ensure fairness – or the appearance of fairness – prosecutors, like judges, must be “isolated from political pressure,” said Mr. Bellinger, adding that “as best they can” they themselves should be apolitical.
He acknowledged that it is difficult for officials to convince the public of their impartiality when they are constantly accused of bias and when they are appointed by elected officeholders or self-elected.
But those challenges, tough as they are, can’t stop the justice system from taking on legitimate cases against political leaders, he and other experts said.
“People will throw potshots at the process every time they get arrested; that is common practice,” said Mr. Levitsky. “But if you rob a bank and I arrest you, and you threaten to throw a hand grenade at the courthouse, the problem is not that I arrested you for robbing a bank.”