Here's how other democracies have prosecuted political leaders
The Washington Post March 31, 2023
In a first for the United States, Manhattan District Attorney Alvin Bragg announced Thursday that Donald Trump has been indicted. No American president or former president has ever before been charged with a crime.
In a Truth Social post Wednesday morning, Trump, who had been signaling that he anticipated his arrest, said: "This is what happens in Third World countries which, sadly the USA is rapidly becoming!" After news of his indictment broke Thursday, he wrote in a post: "THE USA IS NOW A THIRD WORLD NATION."
It is true that indictments of leaders or former leaders happen mostly in developing countries and authoritarian states, but where the rule of law is enforced, democracies, too, have gone down a road that Rep. Elise Stefanik (R-N.Y.), among others, has described as "un-American."
Here are some examples of democracies that have recently brought criminal charges against their leaders. These countries differ from ours in crucial ways, but aspects of their experience, experts say, hint at what may be in store for the United States.
Israel is a clear place to start, given the volatile situation that accelerated there last weekend, with massive protests against a proposed overhaul of the judiciary and Prime Minister Benjamin Netanyahu's firing of his defense minister, who opposes the plan.
Netanyahu has been under indictment in three corruption cases, beginning in 2019. He refused to resign after the police recommended charges and denounced the prosecution as politically motivated. His trial on the combined charges began in 2020 and has spanned two of his administrations as well as the brief period he was out of office. As The Post has reported, accusations against him include "abusing his official position to grant favors to wealthy business executives in exchange for gifts that include champagne, cigars and favorable media coverage for his family."
Netanyahu had claimed that his government's plan to reconfigure the judiciary - which was put on hold in the face of the unrest - was separate from his legal woes, but the overhaul would allow legislators to overturn Supreme Court decisions and select judges. Israel's attorney general called Netanyahu's involvement in the plan "illegal" and "contaminated by a conflict of interest."
And that is the crux.
"The attorney general in Israel historically has been extremely independent of the government. That's why this prosecution got started," Mark Tushnet, a professor emeritus of constitutional law at Harvard Law School, told The Washington Post. "Going after a political leader who remains politically powerful is a very delicate task," Tushnet said, but because investigations into Netanyahu "are truly seen to be independent" they gain a degree of public trust, blunting some of the accusations of partisanship seen in the United States.
Dov Waxman, professor of Israel studies at UCLA, sees parallels between Netanyahu's situation and Trump's - and clear implications for the United States. Netanyahu has "tried to delegitimize the Israeli judiciary, and the attorney general and the prosecutor's office - even people he himself appointed - as his legal case has proceeded." His base has "believed and accepted his claim that he is essentially a victim of a political witch hunt. They've really agreed with his characterization of his adversaries in the judiciary as essentially leftists."
Israelis are not especially known for mass street protests in matters relating to their internal politics, but the recent widespread unrest suggests that in attacking the independent judiciary, a hallmark of any democracy, Netanyahu may have crossed a line.
Silvio Berlusconi, the billionaire media magnate who served as prime minister for nine years and currently sits in the Italian Senate, has been accused of crimes, convicted of crimes, acquitted of crimes and eluded prison sentences for crimes over the past dozen years. A partial list of the accusations that have swirled includes bribery, tax fraud, witness intimidation and sex with an underage prostitute. He was convicted of tax fraud in 2013 and performed a year of community service. A court lifted a ban on his holding national office in 2018, and he returned to parliament after the 2022 elections.
Time has been Berlusconi's friend. "The Italian system is very slow," noted Cecilia Emma Sottilotta, a professor of political science at the American University of Rome, "which favors people like Berlusconi who have the resources to exploit every single loophole."
Trump has used the clock and loopholes to his advantage, too, but "we are talking about completely different contexts," Sottilotta said. "I'm not entirely sure you can compare the two, because the political systems are so different."
The court systems are different, too. Italian judges are much more independent than American judges, for example, Sottilotta said. That can insulate the judiciary from political pressure, but it also means "there is no way to hold judges accountable whenever there are mistakes."
The parallels relate more to the personalities than to the systems or cultures. "Turning the nation against the press, prosecutors, the judiciary - anyone who can expose the leader's crimes - is part of the playbook that Berlusconi pioneered as a sitting leader of a democracy," said Ruth Ben-Ghiat, a historian and author of "Strongmen," which profiles authoritarian tactics. "Trump is not original in any of the things he's doing now." In her book, she writes that Berlusconi "bent the institutions of Italian democracy to his private needs" to attain power and avoid oversight.
Nicolas Sarkozy, who served as president from 2007 to 2012, was convicted twice. One trial concerned campaign financing and another centered on falsifying documents. He received short prison sentences but appealed in both cases and has not yet served time. Jacques Chirac, Sarkozy's predecessor and mentor turned rival, was convicted in 2011 of embezzlement, abuse of public trust and conflict of interest during his time as mayor of Paris. He received a two-year suspended sentence.
In both instances, French law enforcement and the court system were able to weather accusations of political bias because they were transparent, said Sam van der Staak, director for Europe at the International Institute for Democracy and Electoral Assistance. He added that it was crucial to "keep referring to the rules of the game, to the law, to refer not just to national law, but also international standards." The French authorities "stuck to the procedure, they stuck to the law, and even though it dragged on, their credibility didn't suffer."
In December, Argentina's former president and current vice president, Cristina Fernández de Kirchner, was sentenced to six years in prison and banned from ever holding political office again for her part in a $1 billion public fraud scandal. Kirchner, who has been investigated multiple times, criticized her first conviction as politically motivated.
While the case is under review and likely to advance to the Supreme Court, support for Kirchner has dwindled - although like Trump, a fellow populist, she has a solid hold on her political party.
The charges may be very different, but "I do see similarities in that the two try to defend themselves by transforming the accusations into political actions against them," said Lucas Romero, a political analyst based in Buenos Aires. "They do not use a legal defense but a political one, almost thinking more about the climate of opinion and achieving a favorable opinion from the public than about what happens in the courts."
Luis Gabriel Moreno Ocampo, who served as the first prosecutor of the International Criminal Court and prosecuted leaders of the country's former military government, said he sees Kirchner's conviction as "a major sign of maturity" for Argentine democracy.
Ocampo said that creating a culture of accountability helped create "a vaccine against authoritarianism and dictatorship" in Argentina after its 20th-century turmoil.
Jack Smith, the Justice Department special counsel investigating Trump in matters unrelated to the Manhattan indictment, worked under Ocampo at the ICC. "I think integrity and persistence are two characteristics [Smith] has," Ocampo said. "Now to succeed in this impossible job he has is, does he have good evidence? If he has collected strong evidence that Trump's supporters can understand as serious, that will be a huge distinction. If not, it will get very complicated."
Luiz Inácio Lula da Silva, commonly known as Lula, was reelected president last year in the closest race in Brazil's history. He defeated incumbent Jair Bolsonaro, who fled to Florida and faces an investigation in Brazil. (Bolsonaro flew back to Brazil on Thursday.)
Lula's return to the presidency comes after he was convicted by local prosecutors and imprisoned for over a year as part of an international corruption scandal that ensnared many of Brazil's top leaders. He was jailed under charges connected to the "Lava Jato" or "Car Wash" investigation, spearheaded by a judge who the Intercept revealed was working with prosecutors to get Lula locked up, in violation of due process, and who would go on to serve as justice minister under Bolsonaro.
Brazilian democracy is far less established than the U.S. version, with rampant corruption and the specter of the return of military rule "still haunting Brazilian society" and hindering public trust in accountability efforts as much as political polarization does, said Gustavo A. Flores-Macías, an international affairs professor at Cornell University.
But the country's fractious politics and many points of oversight reflect aspects of the situation in the United States. Many of Bolsonaro's supporters, for example, believe the election was "stolen" from him, Flores-Macías noted. As in the United States, the quest for accountability has become part of "a bigger story about polarization and gridlock that has really affected the country's performance."
Unlike the United States, Brazil's legal system is rooted in civil law, meaning prosecutors have less discretion and there are no jury trials. Victor Menaldo, professor of comparative politics at the University of Washington, noted that as a developing country, Brazil has "less of a rule-of-law tradition" and memories of "recent experiences with dictatorship that is as close to us as the 1980s."
For a young democracy, South Korea has held a lot of leaders to account.
Most recently, in 2017, President Park Geun-hye was impeached, removed from office and arrested on corruption charges, including abuse of power, bribery, coercion and leaking government secrets. In 2018, she was convicted of 16 of the 18 counts and sentenced to 24 years in prison. In 2020, she was retried and her sentence slightly reduced, and in late 2021, she was pardoned in the interest of national unity and her poor health.
Two other former presidents were convicted of corruption and sentenced to lengthy prison terms; both were later pardoned. A third former president killed himself while he was under investigation.
As Washington Post columnist Ishaan Tharoor wrote in August, these prosecutions have not eroded the country's democracy. "Despite being home to a political scene as angrily polarized as the United States," he wrote, "South Korea has managed to weather the storms over corrupt former presidents and maintain peaceful democratic order as power shifted from right to left and back. Americans would do well to pay attention. "
Because South Korea is a young democracy compared with the United States, "the political party system is not as institutionalized," said Jeeyang Rhee Baum, a lecturer at the Harvard Kennedy School who researches law in East Asian democracies. That fluid party system may have allowed for greater leeway for politicians to cross party lines in the case of Park's impeachment, Baum said.
Andrew Yeo, a senior fellow at the Brookings Institution, said that "in South Korea, politics is also very us versus them, almost like a blood sport." The United States has plenty of partisan gridlock, but in Korea, Yeo said, "it became almost that if you don't vote in favor of impeachment, the political cost could be higher than trying to protect the president."
In both of Trump's impeachments, Democrats were unable to persuade a sufficient number of Republicans to convict. Referring an impeachment conviction to high courts, as they do in South Korea, doesn't mean the process can't be influenced by politics, Baum cautioned, but it probably helped solidify the legitimacy of the verdict against Park across political divides.