Prosecuting Presidents: A Flawed but Necessary Process
In the first three months of 2021, the world has seen major decisions in the trial of three separate world leaders: Brazilian President Luiz Inácio Lula da Silva, United States President Donald Trump, and French President Nicolas Sarkozy. Their individual situations and the implications of each ruling vary, but with the increasing number of trials of heads of state, these outcomes have a couple of important lessons that can and should be learned.
Brazilian President Luiz Inácio Lula da Silva (1 January 2003-1 January 2011)
In 2017, Lula was accused (and convicted) of money laundering and corruption as a part of Operation Lava Jato, an anti-corruption campaign revolving around the Petrobras Oil Company. Lula called the operation “the biggest judicial lie told in 500 years of Brazilian history.” He was subsequently sentenced to nine years in prison before the Brazilian Supreme Court ruled (controversially) that defendants could not be jailed until they had exhausted their multiple appeal opportunities. However, the conviction occurred just before the 2018 Presidential Elections, which meant that Lula was ineligible to run for office. Lula was leading the 2018 presidential polls prior to the conviction, and his ineligibility opened the door for current President Jair Bolsonaro.
At the beginning of March of 2021, a Brazilian Supreme Court judge annulled the 2017 convictions on the grounds that Lula was tried in the wrong jurisdiction. The ruling of Edson Fachin can still be overturned, however, given the notoriously slow pace of Brazil’s judicial system, there is little faith that the decision will be overturned before 2022. Thus, the annulment has set the stage for Lula’s return to politics. Experts believe that it is likely that Lula will run for the presidency in 2022, likely in opposition to incumbent Jair Bolsonaro, who is expected to run for a second term in office. Additionally, the annulment of Lula’s case casts doubts on the possibility of the continued success of the anti-corruption campaign in Brazil and the efficacy of the court system.
U.S. President Donald Trump (Jan 20, 2016- Jan 19, 2020)
One week after the storming of the U.S. Capitol Building on January 6th, 2021, U.S. President Donald J. Trump was impeached for incitement of insurrection. The trial, which began after President-Elect Joe Biden was sworn in on January 20th, was called “yet another phase of the greatest witch hunt in the history of our Country” by President Trump. The trial lasted four days, from February 9thto February 13th, when President Trump was acquitted. The motion to dismiss the case against Trump came from Republican Senator Rand Paul who argued that the trial was unconstitutional because Trump no longer held the office of the presidency and thus could not be removed from office, a motion supported by then Senate Majority Leader Mitch McConnell. However, this motion was overturned.
In the end, Trump was acquitted. Trump’s actions have major implications for the state of U.S. politics. First, Trump’s acquittal sets a dangerous precedent: that an autocratic leader can incite an insurrection in direct opposition to his vows upon taking office, and not face consequences as long as he is supported by partisanship. Second, his acquittal does not forbid Trump from running for a second term in office in 2024, and his ideology will continue to hold tremendous weight within the Republican party throughout the 2022 Midterm Elections and the 2024 Presidential Elections.
French President Nicolas Sarkozy (16 May 2007-15 May 2012)
In early March, President Nicolas Sarkozy was convicted for bribing a senior judge (Gilbert Azibert) with a prestigious job in return for information regarding an ongoing corruption investigation against Sarkozy. President Sarkozy argued that he “never abused [his influence], alleged or real.” He has been sentenced to three years in jail, and is also scheduled to stand trial on another charge later this month after allegedly exceeding the strict French limits on campaign spending in 2012. Combined, the two charges could potentially result in a maximum sentence of 10 years in jail and a 1 million Euro fine.
Sarkozy’s conviction has a major impact on the perceptions of French politics, according to Pascal Perrineau, a political science professor at the Sciences Po University in Paris. He argues that the conviction “heightens mistrust” and gives “the impression that [French politicians] are all corrupt.” With the French Presidential Election approaching in 2022, Sarkozy’s endorsement is (despite his conviction) widely sought.
In addition to Presidents Lula da Silva, Trump, and Sarkozy, a handful of heads of state are awaiting trial during 2021, including former President of Peru Ollanta Humala (2011-2016), former President of Colombia Alvaro Uribe (2002-2010), former President of South Africa Jacob Zuma (2009-2018), and the former Prime Minister of Malaysia Najib Razak (2009-2018). Whilst each conviction, acquittal, or dismissal has its own implications within each individual nation, the wider trend of prosecuting presidents raises common questions and concerns.
Firstly, prosecuting world leaders is inherently political, which raises concerns about the validity of decisions whilst prosecuting heads of state. Presidents and prime ministers are elected leaders, and their election is a fundamentally political action, where leaders enjoy support from a large percentage of the population. Often, their trials are considered political acts and are extremely divisive, because the prosecution of leaders is often perceived as a tool for the opposition to delegitimise a leader and force him or her from the political arena. This has been a war cry for Lula, Trump and Sarkozy, where all three trials have had potentially harmful political repercussions for the accused, and where two of three leaders have claimed to be a victim of this “politicized justice.” This problem is of particular note in newer and emerging democracies, such as Brazil, where courts and other institutions may not be sufficiently separate from state politics. In the end, the neutrality of the judiciary is often called into question thanks to the inherently political nature of trying a former (or current) head of state.
Secondly, putting world leaders on trial does not seem to be an effective deterrent to future crimes by future heads of state. Sarkozy did not avoid corruption activities even after his predecessor, Jacques Chirac, was convicted of diverting public funds and abusing his position of power, and was sentenced to two years in prison. Bolsonaro has not stopped the corrupt activities that landed Lula his 2017 conviction. The idea that prosecuting former presidents and prime ministers will prevent future abuses of power is unlikely to become a reality.
However, despite the venue in which these cases are pursued being flawed due to its political nature and the lack of deterrence that prosecuting world leaders provides, democracy would suffer if the system lacked accountability and fundamental democratic values, such as justice and equality. Ultimately, we should not and cannot stop prosecuting heads of state for breaches in their Oath of Office. As the number of corruption and criminal trials increases globally, countries must continue to hold their leaders up to the standards required of their privileged position, and the most powerful person in each country must be held accountable in the same way as every normal citizen would be.
