The Washington PostDemocracy Dies in Darkness

Opinion Holding presidents accountable for their crimes is what democracies do

Former French president Nicolas Sarkozy was convicted in 2021 in two separate cases. He was sentenced to jail but is appealing. (Michel Euler/AP)

Now that the House Jan. 6 select committee has laid out extensive evidence of Donald Trump’s malfeasance in spreading the “big lie” and inciting his supporters to insurrection, the key question is whether the former president will face criminal charges for his actions.

The apparent caution by the Justice Department and even some Trump critics to see the former president indicted mostly revolve around the optics and the experiences of other countries; we don’t want to be “mimicking banana republics” that prosecute their former leaders and where election winners retaliate against the losers. According to this view, our democratic institutions might not survive the trauma of trying a former president who still has millions of loyal followers.

Since Gerald Ford pardoned Richard M. Nixon for his Watergate crimes 48 years ago, Americans have been fixated on the need to heal and unite. But the United States is a global outlier in granting de facto impunity to former presidents. In many of the countries I’ve covered and followed closely as a foreign correspondent, prosecution of ex-leaders for crimes is not unusual and often expected by the public. In most cases, the democratic institutions not only held up but were bolstered by demonstrating that no one, even a former leader, is above the law.

In France, where I was based from 2000 to 2005, then-President Jacques Chirac was constantly dogged by allegations of financial misconduct from his years as mayor of Paris. There was a judicial ruling granting him immunity while he was president for two terms that even shielded him from questioning. But he was charged shortly after leaving office in 2007 and eventually convicted of diverting public funds and abusing the public trust. He was handed a two-year sentence, suspended due to his old age and frail health.

Chirac’s successor and onetime protege, Nicolas Sarkozy, served a single term that ended in 2012 and was convicted in 2021 in two separate cases — one involving illicit wiretapping and the other for illegal expenditure of campaign contributions. He was sentenced to jail but is appealing.

With two former presidents convicted after leaving office, the French Republic appears to be doing just fine.

Democracies in Asia have more of a penchant for holding their former leaders legally accountable when out of office. The results have been mixed for the leaders — most have avoided lengthy prison time — but not for the countries’ democratic institutions.

South Korea has seen no fewer than four former presidents charged and convicted after leaving office. The most recent was Park Geun-hye, the country’s first female president and who was impeached and later arrested in 2017 for corruption and abuse of power. She was originally sentenced to 25 years, later reduced to 20 years in a retrial, before being pardoned by President Moon Jae-in.

Park’s predecessor, Lee Myung-bak, was arrested in 2018 and sentenced to 17 years in prison for bribery and tax evasion and his conviction was upheld by the country’s Supreme Court in 2020. Two other former presidents, Chun Doo-hwan and Roh Tae-woo, were indicted and arrested for corruption after leaving office. Chun, a military dictator, was also charged and convicted of leading a 1979 insurrection.

In the Philippines, former president Joseph Estrada, a popular former action movie hero, was ousted from the presidency in a 2001 uprising and was later tried and convicted of embezzling $80 million from government coffers. Only after his conviction was he granted a pardon by the vice president who had replaced him, Gloria Macapagal Arroyo.

Arroyo served until 2010, and she herself was arrested after leaving office, first for “electoral sabotage” and again for misuse of state lottery funds. The first charge was dropped for lack of evidence, and the state’s Supreme Court acquitted her on the latter charge by a vote of 11 to 4.

Estrada and Arroyo also showed that there can still be political life after a conviction, at least in the Philippines. Estrada ran unsuccessfully for another term as president, but he did end up serving two terms as mayor of Manila. Arroyo, meanwhile, was elected to congress even while in detention and later became the Philippines’ first female House speaker.

In Taiwan, former president Chen Shui-bian was found guilty of embezzling diplomatic funds and spent several years in prison before being granted a medical parole in 2015. His supporters staged protests against a case they saw as politically motivated.

South Korea, Taiwan and France are considered free and full democracies on a par with the United States, and the Philippines is listed as a “flawed democracy,” or partially free. Their prosecutions of former presidents hardly dented their democratic standing.

Equally instructive is Malaysia. Former prime minister Najib Razak was convicted and sentenced to a dozen years in prison for massive fraud from a scandal involving a government-backed sovereign wealth fund. Najib, still popular, is out of prison now, campaigning vigorously for candidates around the country and pushing for early elections that would allow him to stage a comeback as prime minister — and importantly stay out of jail.

Malaysia’s democracy looks much weaker and its legal system in question with Najib still a contender for the leadership.

So it’s not the “banana republics” that hold former leaders to account. Stable democracies have indicted and tried former leaders with crimes, and their institutions have proved more resilient for it.

The United States might want to learn from the experience elsewhere and get over its aversion to prosecuting a former president. The case of Trump might be a good place to start.