Donald Trump’s legal troubles will begin in earnest the moment he leaves office on Jan. 20—a threat he understands very well. The president faces potential charges ranging from tax evasion to campaign finance violations, to obstruction of justice, to defamation related to allegations of sexual assault.
President-elect Joe Biden has reportedly told advisers that he “just wants to move on” and worries about Trump trials consuming his presidency—though he also says he wouldn’t interfere with Justice Department prosecutions, and state prosecutors may have their own plans. The new president would rather spend his time pushing for his own agenda, rather than relitigating Trump’s sins, and is also concerned that a lengthy legal process could further inflame an already polarized country. There’s precedent for Biden’s reluctance. Gerald Ford famously pardoned Richard Nixon in order to avoid disturbing the “tranquility to which this nation has been restored” after his predecessor’s departure from office.
The counterargument to the Ford approach is that declining to prosecute a former president for his crimes both confirms that the president is above the law and encourages future law-breaking by the commander in chief and his top officials. I’ve argued that Barack Obama’s reluctance to “refight old arguments” by holding Bush administration officials accountable for torture allowed a figure like Gina Haspel to rise to the position of CIA director.
Part of the anxiety over prosecuting a former president stems from the fact that it’s never been done before in the United States. In other democracies, however, prosecutions of former leaders are very common. And these prosecutions contain some lessons for the U.S. going forward.
Just last week, former French President Nicolas Sarkozy appeared in court to face charges of corruption and influence peddling. He’s also still the subject of a long-running investigation over allegations that he received campaign donations from the late Libyan dictator Muammar Qaddafi. Sarkozy’s predecessor as president, Jacques Chirac, was convicted in 2011 of embezzling funds while he was mayor of Paris and given a two-year suspended sentence.
Former Israeli Prime Minister Ehud Olmert was convicted in 2015 of accepting bribes and served 16 months in prison. Former President of Israel Moshe Katsav served five years in jail for rape before he was released in 2015. The current prime minister, Benjamin Netanyahu, is also fighting corruption charges and may soon face trial.
The fate of South Korea’s former presidents is so grim one wonders why anyone would want the job. Roh Moo-hyun, president from 2003 to 2008, died by suicide a year after leaving office amid a legal investigation into a corruption that led to his impeachment. Last month, Roh’s successor Lee Myung-bak was returned to prison after a court upheld his 17-year sentence on corruption charges—likely a life sentence for the 78-year-old. His successor, Park Geun-hye, who was removed from power amid mass protests in 2017, was sentenced to 25 years in prison for accepting bribes in 2018.
Sometimes leaders do get their sentences reduced or convictions overturned. Former Taiwanese President Chen Shui-bian was sentenced to 20 years in jail on corruption charges in 2009 but released on medical parole after just six.
Former Italian Prime Minister and proto-Trump figure Silvio Berlusconi has been fighting off (usually successfully) a truly dizzying array of criminal charges throughout almost his entire career in business and politics. A four-year prison sentence for tax fraud was commuted to community service working with elderly dementia patients in 2014. Another conviction, for paying for sex with an underage prostitute, was overturned that same year.
Former Brazilian President Lula Inácio Lula da Silva was sentenced to 12 years in jail for corruption, after his conservative rivals took power, but freed after only 580 days in 2019. Former Argentinian President Cristina Fernández de Kirchner was indicted on bribery charges in 2018 and is still on trial.* All but one of the past seven presidents of Peru have faced criminal charges, including Martín Vizcarra, who stepped down in November.
Mexican President Andrés Manuel López Obrador is currently considering a national referendum on whether to prosecute his two predecessors—both longtime political foes.
One of the more unusual recent cases involved former Icelandic Prime Minister Geir Haarde, who was convicted of negligence for his role in the country’s 2008 financial collapse, though he was cleared of more serious charges that could have carried jail time. In other words, Haarde was put on trial not for stealing or soliciting bribes but for being bad at his job—a precedent that, not surprisingly, other governments have not followed.
These are all very different examples from very different political contexts, but we can still draw a few general lessons from them.
First off, the fear that a country’s politics will be subsumed by the controversy involving a former leader’s prosecution, or that the trials will erode democratic norms, is mostly overblown. Sarkozy’s prosecution is certainly a big news story in France, but there’s little evidence that it’s dominating the agenda of current President Emmanuel Macron’s government, which has a range of other domestic and foreign crises to deal with. As the left-wing Israeli journalist Gershom Gorenberg recently noted, Katsav’s and Olmert’s convictions didn’t have any sort of corrosive effect on Israeli democracy, unlike the current prime minister’s efforts to avoid conviction. The best precedent for Trump, as both politician and media figure, is probably Berlusconi, who did significant damage to Italian democracy while in office, but whose subsequent media troubles have mostly been a tabloid sideshow rather than the main event.
On the other hand, there is evidence, particularly in countries with newer, less consolidated democracies, that governments use criminal trials to punish predecessors from another party. This was widely seen to be the case with Lula’s imprisonment in Brazil, as well as López Obrador’s current campaign to jail his rivals. Some have also argued that South Korea’s penchant for locking up its former leaders reveals that it hasn’t entirely abandoned its fairly recent authoritarian past. While the U.S. is a more established democracy, Trump’s own “lock her up” threats directed at Hillary Clinton during his 2016 campaign show our politics are not immune from this dynamic. Trump’s supporters will certainly see any legal action against him as a partisan attack. This isn’t an argument against prosecuting Trump, but it does suggest Biden should keep his distance from any future prosecution and, to the extent possible, avoid commenting on it.
Another discouraging takeaway is that putting leaders on trial for their crimes doesn’t seem to do much to deter future crimes. Neither Sarkozy nor Netanyahu was deterred from engaging in influence peddling despite seeing their predecessors convicted for similar offenses. Current Brazilian President Jair Bolsonaro certainly hasn’t cleaned up Brazilian politics after railing against the corruption of his left-wing predecessors. The jury is still out on whether current South Korean President Moon Jae-in can avoid his country’s executive mansion-to-jail pipeline.
Ultimately, the best argument for prosecuting Trump, or any other leader, is that the most powerful person in a country should be subject to the same laws as every other citizen. But the idea that it will prevent future holders of the office from abusing its power is probably too much to hope for.
Correction, Dec. 2, 2020: This article originally misspelled Cristina Fernández de Kirchner’s first and last names.