Sight Magazine – Essay: Prosecuting a divisive and sometimes destabilizing president – here’s why many countries are doing it anyway

Criminal charges against former US President Donald Trump and his allies could result from at least one of the multiple investigations.

These include August 8, seizure of documents at his home in Florida by the FBI, continued progress in a Georgia State Investigation into Republican Election Tampering and the ongoing revelations of the evidence presented by the congressional committee investigation of the January 6 uprising.

Former South African President Jacob Zuma enters the High Court in Pietermaritzburg, South Africa, on January 31. Zuma is likely to go on trial in May next year on charges of money laundering and racketeering. PHOTO: Jerome Delay/Pool via Reuters.

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

In March 2021, the former French president Nicolas Sarkozy was sentenced to one year in prison for bribery and influence peddling. Later that year, the trial of the longtime Israeli prime minister Benjamin Netanyahu related to breach of trust, bribery and fraud while in office began. And Jacob Zuma, the former president of South Africa charged with money laundering and racketeeringwill probably be will be tried in May 2023 after years of delay.

“On the face of it, prosecuting current or past senior officials accused of unlawful conduct seems like an obvious decision for a democracy: everyone should be subject to the rule of law. But presidents and prime ministers are not just anyone. They are chosen by a nation’s citizens or their parties to lead. They are often popular, sometimes revered. Legal proceedings against them are therefore inevitably seen as political and divisive.

At first glance, prosecute current or past senior officials accused of unlawful conduct seems like an obvious decision for a democracy: everyone should be subject to the rule of law.

But presidents and prime ministers are not just anyone. They are chosen by the citizens of a nation or their parties to lead. They are often popular, sometimes revered. Legal proceedings against them are therefore inevitably perceived as political and become divisive.

Destabilizing pursuits
This is partly why US President Gerald Ford pardoned Richard Nixon, his predecessor, in 1974. Despite clear evidence of foul play in the Watergate scandal, Ford feared the country “would be unnecessarily diverted from meeting [our] challenges if we as a people were to remain sharply divided,” punishing the ex-president.

Audience reaction at the time was divided along party lines. Today some now see absolve Nixon as necessary to heal the nationwhile others think 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 the prosecution of world leaders finds that sweeping immunity and overzealous prosecution can undermine democracy. But such prosecutions pose different risks for older democracies such as France and the United States than for younger democracies such as South Africa.

Mature democracies
Strong democracies are usually competent enough – and the judiciary independent enough – to prosecute politicians who misbehaveincluding top leaders.

Sarkozy is the second modern French president to be convicted of corruption, after Jacques Chirac in 2011 for bribes and attempted bribery of a magistrate. The country did not collapse after either condemnation. However, some observers say that Sarkozy’s three-year prison sentence was too harsh and politically motivated.

In mature democracies, prosecutions that hold leaders accountable can consolidate the rule of law. South Korea investigated and convicted five former presidents from the 1990s, a wave of political prosecutions that culminated in the Impeachment of President Park Geun-hye in 2018 and, shortly thereafter, the conviction and imprisonment of his predecessor, Lee Myung-bak.

Did these lawsuits deter future leaders from committing wrongdoing? For what it’s worth, Korea’s last two presidents have so far avoided legal trouble.

Overzealous lawsuits against rule of law
Even in mature democracies, prosecutors or judges can abuse prosecutions. But overzealous political prosecutions are more likely, and potentially more damaging, in emerging democracies where courts and other public institutions can be insufficiently independent of politics. The weaker and more accountable the judiciary, the easier it is for rulers to exploit the system, either to expand their own power or to overthrow an adversary.

Brazil embodies this dilemma.

Ex-president Luiz Inacio “Lula” da Silvaan old shoe shiner became a popular leftist, was imprisoned in 2018 for accepting bribes. Many Brazilians thought his pursuit was a politicized effort to end his career.

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

The prosecutions of the two Brazilian presidents were part of a long anti-corruption investigation by the courts which jailed dozens of politicians. Even the lead prosecutor in the investigation is accused of corruption.

According to the outlook, the Brazilian crisis reveals that no one 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 leadership transgressions as a normal cost of doing business.

For Lula, a conviction did not end his career. He was released from prison in 2019 and the Supreme Court later overturned his conviction. Lula is now lead the 2022 presidential race against current Brazilian President Jair Bolsonaro.

Stability versus responsibility
Historically, Mexico has taken a different approach to prosecuting former presidents: it does not.

In the 20th century, the ruling Institutional Revolutionary Party, or PRI, established a system of cronyism and corruption this kept its limbs in power and other minority parties. While making a show of go after small fish for small indiscretions, the legal system managed by the PRI would not touch senior party officialseven the most openly corrupt.

Impunity kept Mexico stable during its transition to democracy in the 1990s by allaying the fears of PRI members of being prosecuted after leaving office. But government corruption flourishedand with it, organized crime.

That may change, however. In early August 2022, Mexican federal prosecutors confirmed that he has several investigations opened on the former president of the PRI Enrique Peña Nieto for allegations of money laundering and election-related offences, among other crimes.

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Mexico is far from the only country to ignore the bad deeds of former leaders. Our research reveals that only 23% of countries that transitioned to democracy between 1885 and 2004 accused former rulers of crimes after democratization.

Protecting authoritarians – including those who have overseen human rights abuses – may seem contrary to democratic values, but many transitional governments have decided that democracy needs to take root.

This is the deal South Africa made at the end of apartheid’s decades of segregation and human rights abuses in the early 1990s. The white-dominated South African government negotiated with Nelson Mandela’s black-led African National Congress to ensure that members and supporters of the incumbent government would avoid prosecution and largely retain their wealth.

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

Corruption is a problem, too, as former President Zuma’s lawsuit for lavish personal use of public funds shows. But South Africa has a notoriously independent judiciary. Despite the backsliding of some pillars of the African National Congress and several legal appeals, the prosecution against Zuma continues. And it can still deter future mischief.

How mature is mature?
Israel is partly a testament to the rule of law – and partly a cautionary tale about the pursuit of leaders in democracies.

Israel did not wait for Prime Minister Benjamin Netanyahu to leave office to investigate wrongdoing. But the judicial process has been fraught with difficulties, in part because Netanyahu used state power to resist what he called a “witch hunt.”

The trial sparked protests from his party, Likud. Netanyahu tried in vain to obtain immunity and stall. He was even re-elected while he was under indictment, and his trial is not over yet.

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

Victor Menaldo is a professor of political science and co-founder of the Forum d’économie politique at the University of Washington; James D Long is associate professor of political science at University of Washingtonand Morgan Wackis a doctoral student in political science at University of Washington. This article is republished from The conversation under Creative Commons license. Read it original article.

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