Many Democracies Have Prosecuted Ex-Leaders. The Politics Can Be Tough.
The indictment of former President Donald J. Trump is a first for the United States, but such cases have become fairly common globally. In the past two decades, several dozen nations have prosecuted a former head of government or head of state.
And while Mr. Trump’s allies have said repeatedly that such charges are the work of a “banana republic,” several of the cases have occurred in countries that routinely rank among the world’s freest, most democratic and wealthiest.
In just the past 15 years, Nicolas Sarkozy and Jacques Chirac of 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 those criminally charged also includes former democratically elected leaders of Argentina, Brazil, Pakistan, Peru, South Africa and Taiwan.
In the 1980s, Kakuei Tanaka, a former prime minister of Japan, was convicted. And Prime Minister Benjamin Netanyahu of Israel is currently on trial on corruption charges.
“It’s always a big deal when a former president or prime minister is indicted, but in most democracies, it is normal when they’re credibly accused of serious crimes,” said Steven Levitsky, a professor of government at Harvard who has written about dozens of countries’ transition to democracy. The United States, he said, has been an outlier in its reluctance to charge 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.”
Prosecutions can reflect that the rule of law is strong, that even the powerful are not above the courts and can be held to account. But they can also show that the rule of law is weak, that the legal system is easily weaponized against political enemies.
“Many people are going to immediately assume that it’s for political reasons, and it’s going to be very hard, if not impossible, to persuade them that it’s a legitimate, nonpolitical prosecution,” said John B. Bellinger III, an adjunct senior fellow at the Council on Foreign Relations in Washington and a top legal official during President George W. Bush’s administration.
That reaction is likely to be more severe, political scientists say, in a country where politics are highly polarized and partisan. If the defendant’s political allies are willing to see how the legal process plays out rather than jump to the accused leader’s defense, claims of prosecutorial bias typically gain less traction.
Nathalie Tocci, an Italian political scientist, has some sobering advice for well-meaning prosecutors weighing such cases: “I don’t think you can get it right.”
That is not the same as advising against it.
“If you think, legally speaking, there was a crime and you have to proceed, you just do it,” Ms. Tocci said. “But there’s always a justice story and a politics story, and one should try to keep them separated, but it’s impossible.”
Authoritarian leaders have historically repressed their opponents without much concern for even the appearance of due process. But in recent years, dozens of such governments have instead used courts, with verdicts foreordained, to publicly condemn their ousted adversaries 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 most delicate. The evenhanded application of the law can be painted as political retribution, and vice versa, putting added pressure on prosecutors deciding whether to proceed.
Mr. Berlusconi, a three-time prime minister, has been prosecuted several times, was convicted of tax fraud, has had other guilty verdicts overturned on appeal and has escaped other charges only by having the laws changed.
Through it all, he has, like Mr. Netanyahu and Mr. Trump, spent years portraying himself as a victim persecuted by an out-of-control and politicized system, using that claim to rally his supporters, surviving scandal after scandal.
That combination, Ms. Tocci said, can do serious damage to public faith in the justice system — the defendant’s supporters see the system as illegitimate, while the leader’s opponents see it as ineffectual.
“If there is an acquittal, it can be proof that the justice system worked,” she said, “but people will claim that it was all about nothing and it was politically driven.”
Yet, 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 prolonged his political life.”
Legal experts point to ample ethical gray areas. A prosecution can center on what may be a real crime, yet still be politically motivated or be open to question.
Luiz Inácio Lula da Silva of Brazil was convicted of money laundering and corruption, but the country’s top court threw out the charges in 2021 because of bias by the judge, after it was revealed that the jurist had extensive improper, private communication with the prosecutors, consulting with them on strategy. Mr. Lula was released from prison after 19 months, ran again for president last year — and won.
Another murky area involves forms of corruption that are practiced widely and with impunity.
Justin Vaïsse, a historian and former official in France’s Foreign Affairs Ministry, said that Mr. Lula “broke some rules and principles, but everybody did the same thing and others were probably doing worse,” making him what some called a target of politically motivated selective prosecution.
Mr. Chirac, he added, fell not to “weaponization of the legal system,” but to shifting ethical standards. After serving as president of France, Mr. Chirac was convicted of creating fake jobs for political allies when he was mayor of Paris decades earlier.
“Some of the things that Chirac did had been common practice at the time,” Mr. Vaïsse said.
To ensure fairness — or the appearance of fairness — prosecutors, like judges, should be “insulated from political pressures,” Mr. Bellinger said, adding that “as best as possible,” they themselves should be apolitical.
He acknowledged that it was hard for officials to convince the public of their impartiality when they face constant accusations of bias and when they are appointed by elected officeholders or are, themselves, elected.
But those challenges, as difficult as they are, cannot dissuade the justice system from taking on legitimate cases against political leaders, he and other experts said.
“People will throw potshots at the process any time they’re arrested; that is common,” Mr. Levitsky said. “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.”