Photo Credit: Yuki Iwamura/AP Photo
By Kurt Johnston
Past American presidents have been accused of a litany of felonies, from war crimes to corruption to sexual impropriety-related obstruction of justice. Yet for the 46 men who have inhabited the country’s most prestigious office, a criminal prosecution would– for most of history– seem blasphemous. Gerald Ford’s pardon of Richard Nixon after the Watergate scandal ensured and maintained a precedent of inaction; while other government positions have faced legal scrutiny, U.S. presidents have remained immune to criminal charges.
This changed two months ago, when Donald Trump was indicted with 34 charges of falsifying business records associated with an alleged hush money payment (and its subsequent cover-up) to porn star Stormy Daniels. Trump also faces investigations into his role in the January 6th insurrection, his attempts to overturn the 2020 election, and his mishandling of classified documents at his home in Mar-a-Lago. While Trump would be the first American President to face a criminal trial, scores of former leaders have been tried and convicted globally. As the case heads to trial, these international examples illustrate the pros and cons of prosecuting Trump.
Indictment: A Cost-Benefit Analysis
There are certainly clear justifications for a state to prosecute its former leaders. The most common reason is to equally apply the rule of law: citizens in democratic countries tend to hold their leaders accountable for criminal actions, which explains the commonality of such trials in the 21st century. Additionally, failure to prosecute former leaders may exacerbate corruption; this was exemplified by the systemic corruption that hampered Mexico’s Institutional Revolutionary Party (PRI) throughout much of the 20th century. The PRI’s return to power in recent decades has been met with corruption-related arrests, but failure to stem earlier malpractice has been associated with the simultaneous rise of organized crime in Mexico.
Furthermore, if the trial is prosecuted justly, convicting former leaders removes criminal elements from the electoral process. If Trump were to be convicted, he would be unable to run in future elections– particularly relevant for 2024, where the former President is the favorite to be the Republican nominee.
However, prosecution of former leaders also poses an obvious threat to democracy. Criminal charges against members of one political party naturally lead to accusations of political bias or even political motivation (an allegation Trump himself has levied against New York District Attorney Alvin Bragg). If this political motivation is believed to be true, it not only creates the perception of a partisan judiciary, but also sets a precedent for arbitrary trials of political opponents. According to some research, over half of Americans believe Trump’s indictment may be politically motivated. Even more troubling, this divide is almost entirely partisan– yet another flashpoint of division as the country heads toward a Presidential election.
Source: Reuters/Ipsos poll
Debate over anti-corruption positives and politicization negatives has inundated the response to Trump’s indictment. While Trump’s case is riddled with caveats, the international sphere provides valuable insight for the United States’s response to a potential trial and conviction. Brazil, for example, saw a fierce investigation into several former leaders sour after claims that judges were politically biased. South Korea, meanwhile, has seen its prosecutions lead to political successes and electorate shifts. These case studies– and others from around the world– illustrate the variety of post-indictment trajectories for the United States.
Brazil: Prosecution to Politicization
The Lava Jato corruption investigation has rocked Brazil’s political sphere for a decade. Its initial focus on money laundering grew into the uncovering of an international bribery scheme involving Petrobras (Brazil’s state-owned oil and gas company that ranks as one of the biggest in the world), construction companies (e.g. Odebrecht), and Latin American politicians.
One major impact of Lava Jato– which led to 278 convictions over the course of seven years– was the imprisonment of ex-President Luiz Inácio Lula da Silva. Led by Judge Sérgio Moro, Brazilian prosecutors sentenced Lula to almost ten years in prison. Lula’s conviction not only shocked the Brazilian public, but also expelled him from the 2018 Presidential election, ultimately won by Jair Bolsonaro.
However, in 2019, text messages between Lava Jato prosecutors and judges like Moro were leaked, suggesting impropriety in their method of prosecution. Moro himself was promoted to a position within Bolsonaro’s Administration and allegedly sought a position on the Brazilian Supreme Court.
The politicization of Brazil’s judiciary ultimately led to the annulment of Lula’s charge; this reversal was not based on his innocence, but because of the bias shown against him in court. Lula ultimately ran for President in 2022, winning a divided and polarized election against his rival Bolsonaro. Once hailed as a landmark anti-corruption success, Lava Jato’s reputation has been tarnished by politics.
Lava Jato exemplifies the dangers of a political prosecution. Like Lula, Trump has incredibly strong support from a segment of the population; if the trial is perceived as unfair, Trump may receive a boost for his 2024 campaign even if convicted. The failure of Lava Jato also diminished Brazilian trust in their justice system. This could be disastrous in the United States, particularly as American support for the Supreme Court is at an all-time low.
South Korea: Anti-Corruption as a Political Tool
South Korea also has a recent history of prosecuting former leaders, as Presidents Lee Myung-bak (2008-2013) and Park Geun-hye (2013-2017) were both imprisoned in 2018. President Lee faced charges of accepting bribes from companies like Samsung to maintain close business ties with the Korean government.
Lee’s successor, President Park, was impeached and charged in a separate corruption scandal that involved 52 million dollars in bribes. However, Park and Lee have since been pardoned– by Moon Jae-in (2017-2022) and Yoon Suk Yeol (2022-present) respectively– in a reported attempt to foster national unity.
Like in Brazil, the South Korean case had a profound effect on politics. Lee and Park both represented conservative political parties; Moon Jae-in was the first left-wing candidate elected since 2003, at least partly due to a desire for an overhaul of the right-wing parties. Current president Yoon Suk Yeol was the prosecutor general in Park’s and Lee’s trials and rose to fame as the figurehead of anti-corruption sentiment. These trials thus determined not one but two consecutive presidential elections in South Korea.
It would be absurd to say that Alvin Bragg could leverage his role as Manhattan district attorney into a presidential campaign. However, a pro-judiciary stance could benefit both Democrats and Republicans hoping to defeat Trump in 2024. Further, it appears as if the South Korean tradition of pardons has dispelled fears of politicization. This could be a viable action for Biden (or Biden’s successor) to avoid protests or political violence. While there is an argument for enforcing assigned jail time, a show of bipartisan support may be more beneficial to the United States in the long run.
Prosecuting Ex-Presidents Around the World
Similar prosecutions to those in Brazil and South Korea have become increasingly prevalent, particularly in democratic countries. In 2021, former French President Nikolas Sarkozy was sentenced to three years in prison for corruption and influence peddling. Last year, Argentine vice president and former president Cristina Fernández de Kirchner was found guilty in a one billion dollar fraud case that will prevent her from running for public office in the future. Benjamin Netanyahu was recently re-elected for a record fifth term as prime minister in Israel with a corruption case against him still ongoing. In total, 78 countries have prosecuted leaders who have left office since 2000– a staggering total that includes some of the world’s most prominent nations. As the United States joins this list, American democracy may hang in the balance.
Source: Axiom (Map includes case against Donald Trump).
The American Precedent
Trump’s hush money case is unique due to its legal vulnerability, its potential for politicization, and the cult-like nature of Trump himself. The allegations against the former President predate the 2016 election, meaning Trump is exempt from charges of corruption (which is exclusive to those holding public office). The Manhattan indictment appears shaky to some commentators, which not only increases the chances of acquittal or dismissal, but also lends itself to theories of political motivation. The other three investigations involving Trump– which directly assess his time in office– could have much more significant consequences than the New York case.
The political nature of Trump’s potential trial will likely be heightened by similar cases currently affecting Republican circles. Conservative Supreme Court Justice Clarence Thomas has been taking undisclosed vacations (and other gifts) funded by billionaire Harlan Crow, leaving speculation about the Court’s ethics rules and potential corruption. Fox News avoided trial with a $787.5 million settlement with Dominion Voting Systems, but uncovered text messages have led to the firing of Fox’s most popular host, Tucker Carlson.
Moreover, Trump holds an uncommonly strong influence over half of the American electorate. Trump’s infallibility in the eyes of his supporters means a conviction is unlikely to be accepted; retribution against Democratic party officials has been hinted at by Republican leaders. To avoid speculation of involvement, the Biden Administration has not commented on Trump’s case, but it is unclear if this strategy will bear fruit.
Regardless of how the case progresses, it is clear that Trump’s prosecution will be a messy, political process. Between today and Trump’s next court date in December, the American public can expect motions, campaign speeches, misinformation, and leaked evidence. Other countries have navigated similar prosecutions with varying success, and such trials tend to have lasting effects. For now, however, the People of the State of New York v. Donald J. Trump remains a menacing question mark that may define this next chapter of American history.
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