The Atlanta Journal-Constitution
Holding former leaders accountable can be tricky
Nations have prosecuted ex-presidents, prime ministers for crimes through the years.
When President Gerald Ford pardoned his predecessor in 1974, averting a potential trial for Richard Nixon, he cited a desire to keep the country calm. Prosecuting Nixon, Ford said in a public address, would inevitably plunge the nation into a bitter, polarized divide. “My concern is the immediate future of this great country,” Ford declared. In the half-century since Ford announced that pardon, other nations have charted a different path, prosecuting former presidents or prime ministers in France, Brazil, South Korea, Israel and elsewhere for numerous alleged crimes, among them embezzlement, corruption, election interference and bribery.
Some cases have illustrated the virtues of trying to hold the most powerful political officials accountable under the rule of law — as well as the formidable challenges that arise when prosecuting such figures. These former leaders can rely on ample bully pulpits to assail the process, maintain influence, shore up support and, in some cases, reclaim power.
The United States is now breaching the line Ford dared not cross, with Donald Trump becoming the country’s first ex-president to stand trial. Trump’s trial in New York starting this week comes in one of four cases where he faces criminal charges. The cases raise broader questions about the durability of the American justice system and the public’s faith in democracy, particularly with Trump, the likely Republican presidential nominee, barreling toward a November rematch with President Biden.
“The notion that not just charges would be brought, but that a former president and possibly future president might be convicted and sent to jail is truly extraordinary,” said William Howell, an American politics professor at the University of Chicago. “How the system and how the American public will respond is going to be really revealing about the nature of our democratic commitments.”
Trump has pleaded not guilty in each of his criminal cases. The presidential election remains months away, but polling has shown that rather than harming him politically, Trump’s indictments were accompanied by a surge in GOP support.
Perhaps the most difficult challenge of prosecuting ex-leaders anywhere in the world, legal analysts said, is that doing so can risk appearing overtly political and contribute to large numbers of citizens losing faith in the impartiality and fairness of the legal system.
Rulers in authoritarian nations routinely jail opponents on false or questionable charges, and who gets targeted for prosecution can depend on who is in power. In Russia, for example, opposition leader Alexei Navalny, one of President Vladimir Putin’s fiercest domestic critics, was sentenced to a cumulative
three decades in prison, and he died in February in a remote penal colony. And in China, President Xi Jinping’s chief political rival, Sun Zhengcai, was sentenced to life in prison on corruption charges in 2018.
In liberal democracies, too, ex-leaders facing investigations and criminal charges have sought to depict these cases as weaponized, political law enforcement — similar to rhetoric from Trump and his allies, who routinely invoke such arguments to denounce the investigators and prosecutors scrutinizing him.
Former French president Nicolas Sarkozy, who led the country from 2007 to 2012, has vigorously maintained his innocence in cases involving corruption and illegal campaign funding, railing against prosecutors and judges.
Sarkozy has been convicted in two cases so far; he was sentenced to six months in prison and remains free on appeal. He also still faces a third case, which could go to trial next year. That case involves allegations that Sarkozy accepted illegal campaign funding from Libyan dictator Moammar Gaddafi during his 2007 presidential run. Gaddafi was killed in 2011.
“Sarkozy’s claim that this is political is more or less gospel with the French right,” said Robert Zaretsky, a historian and author at the University of Houston. Zaretsky emphasized that Sarkozy has not gone as far as Trump in attacking a broader “deep state” plot against him by the French government.
And while Sarkozy maintains influence with French conservatives, he said, Trump leads a more extreme right-wing movement in the United States.
In Brazil, Jair Bolsonaro modeled his political rise on Trump’s nationalist insurgency and took office in 2019. Now, he has been charged by Brazilian authorities with forging a coronavirus vaccine card before entering the United States in late 2022, after he lost reelection. Bolsonaro is also facing an investigation into accusations that he sought to co-opt Brazilian police to block his successor, President Luiz Inácio Lula da Silva, from taking office. Mobs of Bolsonaro’s supporters stormed federal government buildings during Lula’s inauguration on Jan. 8, 2023, in a scene that echoed Trump supporters’ Jan. 6, 2021, attack on the U.S. Capitol.
Unlike Trump, Bolsonaro has been banned from public office until 2030 under a ruling from the Superior Electoral Court over false statements he made about the 2022 election.
“The fact that [the electoral court] took that first step is a really big deal,” said Rachel Bill Chavez, president and chief executive of the Inter-American Dialogue, a think tank focused on the Western Hemisphere.
In some countries, a former leader facing a trial has become a familiar sight, rather than a novelty. South Korea has seen four ex-presidents jailed for corruption since the 1980s. Another ex-president died by suicide in 2009 while under investigation. Most recently, former president Park Geun-hye was impeached in 2017 and, the following year, sentenced to 24 years in prison for bribery and abuse of power.
Though the prosecutions have contributed to political partisanship, analysts said, South Korea’s judicial system has endured, and in some ways emerged stronger.
In late 2021, President Moon Jae-in pardoned Park, and she has retreated to a life outside the political spotlight. Moon was succeeded in 2022 by South Korea’s prosecutor general Yoon Suk Yeol, who oversaw the criminal convictions of Park and another former president, Lee Myung-bak, on abuse of power charges.
“When Park was impeached, they had an out-of-cycle presidential election. They did everything according to the rules. There wasn’t anybody who questioned it,” said Victor Cha, an Asia expert at the Center for Strategic and International Studies. “And then, in the last election, the margin of victory was thinner than in the United States and the losing candidate conceded and accepted the results.”
Cha noted that South Korean presidents are limited to a single five-year term, which helps insulate the country against ex-leaders who might seek to regain power as a way to ward off legal investigations.
One of America’s closest allies recently saw an indicted leader return to office, with controversial results. Israeli Prime Minister Benjamin Netanyahu was charged in 2019 with fraud, breach of trust and bribery, while still in office. His trial was marked by delays caused by the coronavirus pandemic. Netanyahu left office in 2021, and he railed against a prosecutorial “witch hunt.” By the following year, he had returned to power.
Netanyahu and his conservative allies then set about trying to overhaul the country’s judiciary, even as the prime minister’s criminal prosecutions were ongoing, a tactic that fueled intense unrest in Israel. “It got to the point where he was trying to rig the judicial system by using the argument that there is a conspiracy theory against him,” said Victor Menaldo, a political science professor at the University of Washington.
In Ford’s telling five decades ago, concerns about the United States’ stability were paramount when he pardoned Nixon. Ford said the act was necessary to avoid “ugly passions” among the electorate and quash public doubts about “the credibility of our free institutions of government.”
Ford’s pardon set in the public’s mind the idea that prosecuting a former president “was beyond the pale,” said Howell, the University of Chicago professor. By the same token, he said, what happens in Trump’s criminal cases could set a new precedent for how future presidents conduct themselves — for better or worse.
Trump already has vowed political and judicial payback against his rivals if he wins another term. “Trump has said (to his followers): ‘I am your retribution,’ ” said Saikrishna Prakash, a University of Virginia law professor. “And one of the ways of understanding that is: ‘I’m going to prosecute all of the people who prosecuted me.’ ”