U.S. Attorney General Merrick Garland addresses the FBI’s recent search of former President Donald Trump’s Mar-a-Lago residence, where classified information was reportedly seized.

U.S. Attorney General Merrick Garland addresses the FBI’s recent search of former President Donald Trump’s Mar-a-Lago residence, where classified information was reportedly seized. Drew Angerer/Getty Images

Prosecuting a President Is Divisive and Sometimes Destabilizing – Here’s Why Many Countries Do It Anyway

Both sweeping immunity and overzealous prosecutions of former leaders can undermine democracy. But such prosecutions pose different risks for older democracies like the U.S. than in younger ones.

Criminal prosecution of former President Donald Trump and his allies could result from at least one of multiple investigations.

These include the Aug. 8, 2022, seizure of documents from his Florida home by the FBI, continued progress in a Georgia state investigation into Republican election tampering and the ongoing revelations of evidence presented by the congressional committee investigating the Jan. 6 insurrection.

While charging a former president with a criminal offense would be a first in the United States, in other countries ex-leaders are routinely investigated, prosecuted and even jailed.

In March 2021, former French President Nicolas Sarkozy was sentenced to a year in prison for corruption and influence peddling. Later that year, the trial of Israel’s longtime Prime Minister Benjamin Netanyahu related to breaches of trust, bribery and fraud while in office commenced. And Jacob Zuma, the former president of South Africa who was charged with money laundering and racketeering, will likely face trial in May 2023 after years of delays.

At first glance, prosecuting current or past top officials accused of illegal conduct seems like an obvious decision for a democracy: Everyone should be subject to the rule of law.

But presidents and prime ministers aren’t just anyone. They are chosen by a nation’s citizens or their parties to lead. They are often popular, sometimes revered. So judicial proceedings against them are inevitably perceived as political and become divisive.

Destabilizing prosecutions

This is partly why U.S. President Gerald Ford pardoned Richard Nixon, his predecessor, in 1974. Despite clear evidence of criminal wrongdoing in the Watergate scandal, Ford feared the country “would needlessly be diverted from meeting (our) challenges if we as a people were to remain sharply divided over” punishing the ex-president.

Public reaction at the time was divided along party lines. Today, some now see absolving Nixon as necessary to heal the nation, while others believe it was a historic mistake, even taking Nixon’s deteriorating health into account – if for no other reason than it emboldens future impunity of the kind Trump is accused of.

Our research on prosecuting world leaders finds that both sweeping immunity and overzealous prosecutions can undermine democracy. But such prosecutions pose different risks for older democracies such as France and the U.S. than they do in younger democracies like South Africa.

Mature democracies

Strong democracies are usually competent enough – and the judicial system independent enough – to prosecute politicians who misbehave, including top leaders.

Sarkozy is France’s second modern president to be found guilty of corruption, after Jacques Chirac in 2011 for kickbacks and an attempt to bribe a magistrate. The country didn’t fall apart after either conviction. Some observers, however, say that Sarkozy’s three-year prison sentence was too harsh and politically motivated.

Sarkozy, wearing a face mask, walks through a glass building, trailed by another man in a suit. A police officer salutes.
Sarkozy leaves court after being found guilty of corruption and influence peddling in 2021. Kiran Ridley/Getty Images

In mature democracies, prosecutions that hold leaders accountable can solidify the rule of law. South Korea investigated and convicted five former presidents starting in the 1990s, a wave of political prosecutions that culminated in the 2018 impeachment of President Park Geun-hye and, soon after, the conviction and imprisonment of her predecessor, Lee Myung-bak.

Did these prosecutions deter future leaders from wrongdoing? For what it’s worth, Korea’s two most recent presidents have so far kept out of legal trouble.

Overzealous prosecution versus rule of law

Even in mature democracies, prosecutors or judges can abuse prosecutions. But overzealous political prosecution is more likely, and potentially more damaging, in emerging democracies where courts and other public institutions may be insufficiently independent from politics. The weaker and more beholden the judiciary, the easier it is for leaders to exploit the system, either to expand their own power or to take down an opponent.

Brazil embodies this dilemma.

Ex-President Luiz Inácio “Lula” da Silva, a former shoeshine boy turned popular leftist, was jailed in 2018 for accepting bribes. Many Brazilians thought his prosecution was a politicized effort to end his career.

A year later, the same prosecutorial team accused the conservative former President Michel Temer of accepting millions in bribes. After his term ended in 2019, Temer was arrested; his trial was later suspended.

Both Brazilian presidents’ prosecutions were part of a yearslong sweeping anti-corruption probe by the courts that has jailed dozens of politicians. Even the probe’s lead prosecutor is accused of corruption.

Depending on one’s perspective, Brazil’s crisis reveals that nobody is above the law or that the government is incorrigibly corrupt – or both. With such confusion, it becomes easier for politicians and voters to view leaders’ transgressions as a normal cost of doing business.

For Lula, a conviction didn’t end his career. He was released from jail in 2019 and the Supreme Court later annulled his conviction. Lula is now leading the 2022 presidential race against current Brazilian President Jair Bolsonaro.

Stability versus accountability

Historically, Mexico has taken a different approach to prosecuting past presidents: It doesn’t.

During the 20th century, Mexico’s ruling Institutional Revolutionary Party, or PRI, established a system of patronage and corruption that kept its members in power and other parties in the minority. While making a show of going after smaller fish for petty indiscretions, the PRI-run legal system wouldn’t touch top party officials, even the most openly corrupt.

Impunity kept Mexico stable during its transition to democracy in the 1990s by placating PRI members’ fears of prosecution after leaving office. But government corruption flourished, and with it, organized crime.

That may be changing, though. In early August 2022, Mexican federal prosecutors confirmed that it has several open investigations into former PRI President Enrique Peña Nieto for alleged money laundering and election-related offenses, among other crimes.

Man in face mask and face shield holds a sign reading 'trials for ex-presidents - sign here'
A protester in Mexico City calls for the prosecution of several former presidents implicated in a corruption scandal. Pedro Pardo/AFP via Getty Images

Mexico is far from the only country to overlook the bad deeds of past leaders. Our research finds that only 23% of countries that transitioned to democracy between 1885 and 2004 charged former leaders with crimes after democratization.

Protecting authoritarians – including those who oversaw human rights violations – may seem contrary to democratic values, but many transitional governments have decided it is necessary for democracy to take root.

That’s the bargain South Africa struck as apartheid’s decades of segregation and human rights abuses ended in the early 1990s. South Africa’s white-dominated government negotiated with Nelson Mandela’s Black-led African National Congress to ensure outgoing government members and supporters would avoid prosecution and largely retain their wealth.

This strategy helped the country transition to majority Black rule in 1994 and avoid a civil war. But it hurt efforts to create a more equal South Africa. As a result, the country has retained one of the world’s highest racial wealth gaps.

Corruption is a problem, too, as former President Zuma’s prosecution for lavish personal use of public funds shows. But South Africa has a famously independent judiciary. Despite pushback from some African National Congress stalwarts and several legal appeals, Zuma’s prosecution continues. And it may yet deter future misdeeds.

How mature is mature?

Israel is partly a testament to the rule of law – and partly a cautionary tale about prosecuting leaders in democracies.

Israel didn’t wait for Prime Minister Benjamin Netanyahu to leave office to investigate wrongdoing. But the court process was fraught with delays, in part because Netanyahu used state power to resist what he called a “witch hunt.”

The trial triggered protests by his Likud party. Netanyahu tried unsuccessfully to secure immunity and stall. He was even reelected while under indictment, and his trial is not over yet.

If Trump is criminally prosecuted, the process would reveal something fundamental about American democracy. Whatever the outcomes, they would be a matter of both law – and politics.

This is a substantially updated version of an article originally published on March 16, 2021.

The Conversation

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

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.