Prosecuting a president: What can US learn from other nations?

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The United States might be the world’s oldest democracy, but there is one thing it has never done: It has never held a former leader accountable for criminal wrongdoing.

That inexperience sets it apart from other democracies. Countries from France to Argentina to South Korea have held that former presidents were not above the law. In the process, both the countries and the individual leaders had to face the consequences. These trials invariably strain countries – sowing mistrust of other democratic institutions, like the courts, and dividing the public itself – with varied final outcomes.

America may be inching toward its own such moment.

Why We Wrote This

The U.S. has never prosecuted a leader for criminal wrongdoing. But other countries have. Their experiences show it is a serious test of a democracy, but it’s a test that many democracies have passed.

The legal jeopardy surrounding former President Donald Trump looms over the country. The 2024 presidential candidate is individually the subject of investigations into efforts to overturn the 2020 election, improper handling of classified documents, and questions of fraud. And that’s not including the House referral to the Justice Department for prosecution on grounds that he incited the Jan. 6, 2021, insurrection at the Capitol. A grand jury in Georgia has completed its election-tampering investigation. A special counsel is just beginning his work for the Justice Department.

Mr. Trump has consistently and categorically denied any wrongdoing, criticizing the investigations as political witch hunts.

For some, the dangers attached to prosecuting – some might say persecuting – a former leader are reason to avoid it altogether. This is the path the U.S. has taken in the past, most notably when Gerald Ford pardoned Richard Nixon after the Watergate scandal. Political consequences – like impeachment or electoral defeat – are seen by many as the simplest, lowest-impact solution.

But in some cases, experts say, political consequences may not be enough to protect democracy. Sometimes legal consequences are necessary – especially if wrongdoings involve subverting democracy. Surveying the many countries that have experienced these trials reveals that while prosecuting a former leader is a serious test of a democracy, it’s a test that many democracies have passed.

“We’ve never seen anything like this before in American history,” says James Hollifield, director of the Tower Center for Public Policy and International Affairs at Southern Methodist University.

“You can’t have [former] presidents being constantly harassed and prosecuted,” he adds. But “if you don’t have accountability, your democracy is on the ropes.”

President Gerald Ford reads a proclamation in the White House on Sept. 9, 1974, granting former President Richard Nixon “a full, free, and absolute pardon” for all “offenses against the United States.”

Rock, meet hard place

In most countries, sitting government officials are shielded from legal actions. Former leaders don’t have such protection, but pursuing criminal charges is one of the most dangerous paths a democracy can take, experts say. It’s even more dangerous if your democracy is already weak.

Public trust in Argentina’s democratic institutions had been declining long before Cristina Fernández de Kirchner – a former president, and the country’s current vice president – was convicted of fraud last month. Her sentence is six years in prison and a lifetime ban from public office, and it came in relation to a kickbacks scheme that funneled hundreds of millions of dollars to a family friend.

Last year ended, according to a report by the firm Zuban Córdoba and Associates, with “an abyss of mistrust” among the Argentine public. Around two-thirds of respondents had little or no confidence in the Congress or the media, and three-quarters had little or no confidence in federal judges (the judicial branch that convicted Ms. Kirchner).

“There’s a general pessimism” about democratic institutions in the country, says Ignacio José Muruaga, a political analyst with Zuban Córdoba.

Ms. Kirchner’s conviction, he adds, “is not the determining factor. It’s one more scene in a very long movie.”

Ms. Kirchner herself played no small part in sowing that mistrust. She maintains her innocence and has repeatedly said that she is a victim of a media and judicial campaign of persecution against her.

Still, she made the surprise announcement that she would not seek public office in elections later this year. While her career in politics may be over, sentiment on the streets of Buenos Aires suggests the lack of faith in Argentina’s democratic institutions will linger.

Ms. Kirchner “is guilty from here to China,” says Marcella Kessel, a treasurer at a university in the city. But she also feels that “knowing how the justice system is,” the conviction could be overturned “at any moment.”

Francisco Gómez, a server on Buenos Aires’ Corrientes Avenue, believes Ms. Kirchner “did a lot” for the country, but he agrees.

“Politicians are all corrupt,” he says. And “I have no faith in the justice system.”

Natacha Pisarenko/AP/File

A woman holds a sign that reads, “There is no democracy without Justice, Cristina Fernández de Kirchner in jail,” outside her home in Buenos Aires, Argentina, Aug. 22, 2022. The former president was sentenced to six years in prison and barred from holding public office for leading a criminal conspiracy that awarded public works contracts to a friend.

Worst-case scenario?

The democracy with perhaps the richest experience dealing with the legal malfeasance of its leaders is Israel. And it may now be an example of how prosecuting a former leader can backfire.

Dozens of national politicians have been convicted of crimes and many sent to prison, including one prime minister (Ehud Olmert, corruption) and a president (Moshe Katzav, rape and sexual assault). Israel’s democratic institutions withstood all these tests. 

In all those cases, the official either resigned by choice or was compelled to do so. Like Watergate, most of these cases saw political consequences for political wrongdoing: The individuals involved quietly left office, sparing the country a democratic crisis.

That should always be the first resort, but “sometimes it’s not enough,” says Sam Van der Staak, head of the Europe Programme at the Stockholm-based International Institute for Democracy and Electoral Assistance.

A long-running criminal investigation into past and present Prime Minister Benjamin Netanyahu is illustrating why political consequences may not be enough. And it is threatening democracy in Israel like never before. 

In 2019, Mr. Netanyahu became the first serving prime minister to cling to power even after being indicted – and even after the start of his trial on a slew of corruption charges. He was voted out in 2021. Then in November, after the coalition government that replaced him failed, he made a dramatic comeback to the prime minister’s office. His trial is ongoing in the Jerusalem District Court.

Israeli Prime Minister Benjamin Netanyahu convenes a Cabinet meeting in Jerusalem, Jan. 8, 2023. Mr. Netanyahu became Israel’s first serving prime minister to cling to power even after being indicted on corruption charges. He was voted out in 2021. Then in November, he made a dramatic comeback. His trial is ongoing in the Jerusalem District Court.

“In Israeli history, every time a politician was indicted, they resigned,” says Amir Fuchs, a senior researcher at the Israel Democracy Institute. “The Netanyahu case is unique in [that] sense.” 

Mr. Netanyahu has consistently maintained his innocence, alleging a vast “deep state witch hunt” against him and the entire Israeli right by the country’s legal authorities and the media. 

The case has divided and radicalized Israeli society. Roughly half the country is convinced there is a conspiracy arrayed against him, according to opinion polls. It has forced democratic institutions like the court system “into a defensive crouch,” says Dr. Fuchs, turning them “into figures of hate amongst 50% of the country.”

The potential consequences may include a vast restructuring, and weakening, of the country’s checks and balances.

Last week, Mr. Netanyahu’s new coalition government introduced plans to “reform” the country’s legal system, including allowing the legislature to override Supreme Court decisions with a simple majority vote. A likely next step: weakening the independence of the attorney general, which legal analysts expect will ultimately result in Mr. Netanyahu’s trial being halted.

This has prompted some analysts in Israel to question – in one case openly – if the country would have been better served dropping the case against Mr. Netanyahu.

Roni Alsheich, who headed the country’s national police force during the Netanyahu investigations, told Israel’s Channel 12 News last month that, due to the “spiral” the country was in, he would recommend ending the Netanyahu trial with a plea deal. 

Mr. Van der Staak believes the opposite. If the judiciary shies away in cases like this, “you [would] actually end up with a democracy that is weaker than what you started with,” he says, pointing to similar actions recently in Hungary and Poland.

“If the judiciary is afraid of stepping in, then actually the whole system that is there for the judiciary to function in can crumble too,” he adds.

Strong courts and strong citizens

Some democracies have proved more resilient in bringing criminal charges against former leaders.

When Nicolas Sarkozy stood trial in 2020, he was the first former president to do so in person since Marshall Philippe Pétain, who collaborated with the Nazis. Mr. Sarkozy was convicted in two separate trials in 2021, first for corruption and influence peddling, and then for illegally funding his 2012 reelection campaign.

Former French President Nicolas Sarkozy (right) arrives at the courtroom for his appeal Dec. 5, 2022, in Paris. A Paris court in 2021 found Mr. Sarkozy guilty of corruption and influence peddling and sentenced him to a year in prison.

Mr. Sarkozy, a conservative, is appealing both rulings and has denied any wrongdoing. Although, like other former leaders facing criminal charges, he has criticized the investigations as purely political, the French public has been largely unmoved. The actions taken by the courts have been accepted, and the country has effectively moved on.

“A lot of people agree with the judge’s decision,” says Arnaud Mercier, a professor at the American University of Paris.

Even a good amount of France’s right-wing electorate “are indifferent” to the verdicts, he adds. For most of the country, “Sarkozy now is in the past.”

Key to this outcome has been the reputation of the French judiciary. Judges in France are civil servants, completely independent of the political branches. They decide which cases merit investigating, oversee investigations and evidence-gathering in those cases, and rule without a jury. Judges, in short, are powerful, and they have used these powers fairly and indiscriminately.

Dr. Mercier points to the Parquet national financier – a financial crimes watchdog – which has investigated conservative politicians like François Fillon, who served under Mr. Sarkozy, and left-wing politicians like Bruno Le Roux.

The agency “proved that it can [go after] right and left [politicians], so they gained credibility,” says Dr. Mercier.

Where corruption isn’t tolerated

In South Korea, meanwhile, allegations of corruption clouded the presidency for decades following the country’s democratization after military rule in the 1980s. 

Political leaders formed close ties with the chaebol – a small group of family-owned industrial conglomerates that came to dominate the country’s economy after World War II – but it became increasingly clear to the public that the relationship was rife with corruption and abuse of power.

A sprawling corruption scandal in the mid-2010s saw hundreds of thousands of South Koreans take to the streets calling for the ouster of then-President Park Geun-hye. In 2017, she was impeached and sentenced to 24 years in prison for corruption and abuse of power. Three years later, her predecessor, Lee Myung-bak, was sentenced to 17 years in prison on bribery and embezzlement charges.

“South Korean people are absolutely, in a wonderful way, intolerant of corruption,” says Laura Thornton, senior vice president for democracy at the German Marshall Fund.

Because of the history of military rule, and the more recent history of the chaebol system, “they have an unbelievably mobilized civil society on [corruption] issues,” she adds. “Trust in the election commission, trust in courts, trust in institutions is [also] pretty high.”

Former South Korean President Lee Myung-bak (center) appears for trial at the Seoul Central District Court in Seoul, South Korea, May 23, 2018. He was sentenced to 17 years in prison on bribery and embezzlement charges.

Nearing a crossroads

Prosecuting former leaders in a democracy is fraught, with no predictable outcome (except, perhaps, the embattled leader saying the case is purely political and without legal merit). Strong institutions, like courts, are important. Paradoxically, those institutions can lose the public confidence they need in such a case by hearing the case at all.

To muddy the waters further, the prosecutions may be inherently political. Ms. Thornton, who spent part of her career working in Southeast Asia, points to Cambodia, where multiple opposition leaders have faced dubious charges. “I lived in Cambodia. I saw elections being stolen,” says Ms. Thornton. “That happens. Witch hunts happen. There are kangaroo courts. It gets so tricky.”

Deciding whether or not to prosecute a former leader “is basically a choice between bad and bad,” she adds.

Brazil recently reelected Luiz Inácio Lula da Silva, known universally as Lula, as president after a decade of controversial legal travails. 

He led the country from 2003 to 2010, but after leaving office he became implicated in a corruption investigation that resulted in a 9½-year prison sentence. Lula always denied the charges, repeating the familiar line that he was a victim of political persecution. But there’s a plot twist: In 2021 the Brazilian supreme court agreed, ruling that his trial judge had been biased and annulling his conviction.

The legal odyssey suggested to the world that Brazilian democracy may be backsliding – with a politicized judiciary excluding a popular leader from the ballot, according to one analyst – but the country may be back on track. Lula’s new term, as a persecuted leader returned to power, will help decide if that’s true – especially in the wake of supporters of his predecessor, Jair Bolsonaro, storming government buildings (including the supreme court) Sunday.

“Brazilian democratic institutions will be tested in a third Lula administration,” wrote Nicolás Saldías, Latin America analyst at the Economist Intelligence Unit, in an email last week.

“Like [Ms. Kirchner], Lula and [his supporters] have accused the judiciary and the media of being biased against them,” he added. “If the going gets tough for Lula, these allegations may resurface and further polarize Brazilian politics.”

The U.S. is in a similar boat, and in similarly stormy seas. Both countries are politically polarized. Lula’s conviction barred him from running in Brazil’s 2018 presidential election, a motive he claimed was behind the case against him. Mr. Trump and his allies have made similar claims regarding the 2024 election. 

The House select committee investigating the Jan. 6 attack on the U.S. Capitol voted unanimously to refer former President Donald Trump, his former chief of staff, and his lawyers for criminal charges on Dec. 19, 2022.

The main difference between the U.S. and Brazil is that Brazil has experienced this strain on its democracy before. Indeed, that strain is still being felt, with Sunday’s violent protests striking observers as a scene eerily reminiscent of the Jan. 6 Capitol attack in the U.S.

To date, America has chosen to address misdeeds by political leaders in the political sphere, such as impeachments and quiet plea deals. The clearest reasoning for this was articulated by Mr. Ford’s pardon of Mr. Nixon in 1974.

In prosecuting a former president, he said announcing the pardon, “ugly passions would again be aroused, our people would again be polarized in their opinions, and the credibility of our free institutions of government would again be challenged.”

It was an unpopular decision – a majority of Americans wanted to see Mr. Nixon prosecuted for his crimes. In this case, Mr. Ford paid politically, losing the presidency to Georgia Gov. Jimmy Carter. Support for the Nixon pardon did increase over the decades, but some experts now believe that American democracy would be stronger today if that particular challenge had been confronted at the time.

After Watergate, “the feeling [was] that we all need to heal, we’re already divided enough, [a prosecution] will just divide us further. That’s terrible – and it’s true,” says Ms. Thornton. “But what’s the alternative? What’s worse to me is lack of accountability for a leader.”

Mr. Trump may end up not facing criminal charges. Still, some loss of trust in democratic institutions is almost inevitable when legal jeopardy clouds a former leader. But democracies around the world have shown that having a former leader stand trial doesn’t have to be a fatal misstep. 

“This is not just an average criminal investigation. This is a criminal investigation that’s part of how we’re trying to defend democracy,” says Mr. Van der Staak at the International Institute for Democracy and Electoral Assistance.

“In the short run, people will lose some of their trust in democracy” when former leaders are taken to court, he adds. “In the long run, you often see that systems can be repaired step by step, and that public confidence then grows again.”

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