Certainly, no one should be above the law. But the threat of incarceration against a former leader by the administration led by an opposing party, or against a leading rival to the incumbent powerholder, is different and must be handled delicately – most especially when the same individual is both the former president and a leading candidate for re-election. Democracies that resort readily to the criminal law against political rivals risk finding themselves at some stage categorized as ex-democracies.
Yet democracies including Argentina, Brazil, France, Israel, Italy, Scotland, and South Africa have had to address wanton improprieties—alleged or proven—by former presidents or prime ministers. These come in all varieties from outright fraud to misappropriation of campaign resources to sale of government contracts and worse. Democracies can survive such profound challenges but only with care and only with attention to four critical considerations.
Four factors should be used to determine whether a criminal prosecution is warranted and well-advised.
First and foremost, the alleged criminal conduct must not only be serious, but must strike ordinary people as a wrong no matter who committed it. The law distinguishes between what is termed a malum in se, an act such as homicide which is wrongful regardless of legal technicalities, and matters that are proscribed only as part of an elaborate legal code. When France’s Sarkozy was accused of diverting campaign funds, or when Argentina’s Kirchner and Brazil’s Bolsonaro were accused of theft of public funds, or when South Africa’s Zuma is accused of selling official influence to an arms dealer, these are all obvious wrongs.
The federal indictment of former President Donald Trump in Florida satisfies this first test. Maintaining secrecy of classified national security information is a long recognized legitimate state concern. Even in the founding period of modern First Amendment law a century ago, a distinction was always drawn around such matters as the location and transportation of U.S. troops and as an obvious example of legitimate governmental concern for secrecy. By contrast, the New York indictment of Trump for campaign improprieties does not rise to this level. An older man paying a younger mistress hush money and then trying to cover up the trail is unseemly, but it is hardly a shocking departure from known human foibles. One might try to debate that proposition, but the debatable nature of it is the point.
Second, there must be a credible claim for political independence of the prosecuting authorities. In many countries based on European civil law, this is easier to respect because both prosecutors and investigative magistrates are career civil servants, whose authority is not subject to any direct political control. In the United States, this is hardest to maintain in the context of elected prosecutors and judges. In the federal government, extreme efforts have to be made to wall off the political side of the executive branch from the prosecutorial decisions of the Department of Justice, even if the reporting line ultimately runs all the way up to the president. The appointment of Jack Smith as a special prosecutor helps to mitigate these concerns, probably the best that can be done under the circumstances. In contrast, prosecutions by locally elected district attorneys, especially ones who identify with the opposing political party, always run the risk of appearing to be the result of partisan motivation rather than prosecutorial independence.
Third, despite the extraordinary implications of indicting a former head of state, there must be a sense of procedural fairness to how the prosecution was instigated. Sometimes widespread corruption inquiries implicate public officials only as the investigation unfolds, confirming that no one was being targeted. In the case of President Trump, the Florida indictment grew out of the most ordinary of bureaucratic inquiries over the status of documents that should have been turned over to the National Archives. This had happened with many former senior officials including Mike Pence and Joe Biden. But in all previous cases, the documents had quickly been turned over to proper custodial control, and the inquiry ended. Only the continued refusal by Trump to return the documents, even when demanded by subpoena, started a process that took over a full year before leading to indictment. And by then, according to the indictment, Trump had engaged in various acts of deceit and obstruction including of his own legal counsel. While this distinction in the case will not dissuade many Trump’s supporters, by all appearances this was a prosecution that Trump could have forestalled at many points along the way – just as others had. In contrast, the Manhattan prosecution raises concerns about going after an individual from the outset. The inability to resolve those concerns among fair-minded members of the public is a core part of the problem.
Democracies that resort readily to the criminal law against political rivals risk finding themselves at some stage categorized as ex-democracies.
Finally, the charges must indicate that the target is almost certainly culpable. Prosecuting a former head of state is different and the political stakes are fraught. The charges must have an immediate and obvious air of credibility about them lest they be quickly spun as a political vendetta or the like. Here a former head of state has a significant advantage, particularly one so adept at controlling the media narrative as Trump. Prosecutors are professionally obligated to be silent once the criminal process is engaged. There are of course skilled professional politicians higher up in the executive branch. But any comment from them would only undermine the critical need to depoliticize the decision to prosecute. The strength of the classified documents case helps satisfy the test of credibility due to information publicly provided by the government in court filings last year and in the speaking indictment earlier this month. While the Manhattan case may also provide credible evidence of misconduct involving business record keeping, that would be only one factor satisfied among the four.
Ultimately, for democracy’s sake, the prosecution of a former president relies on prevailing in the court of public opinion. That is by far the biggest gamble with the charges against Trump, since if he is renominated, the election narrative will not be about COVID or the economy or the invasion of Ukraine, but once again about the person of Donald Trump. Unfortunately, we live in a time of grave skepticism about the independence and capability of public institutions, prosecutors and courts included. In the crucible of a presidential election, the prosecution of a former president and leading candidate unfortunately risks drawing a partisan veil over even proper legal enforcement. Claims of partisanship will invariably attend the prosecution of a head of state. Institutional safeguards can minimize the risk that the charges of political retaliation will dominate the public discourse. Prosecutors and courts need to be attentive to the realities of the broader political environment.