The Washington PostDemocracy Dies in Darkness

U.S. joins other democracies in investigating former leaders

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If you were immersed in the right-wing media ecosystem of the United States, you would think the end times had come. The Monday evening FBI search on former president Donald Trump’s Mar-a-Lago property in Florida was “the worst attack on this republic in modern history,” declared Fox News host Mark Levin. That remarkable demonstration of myopia was followed by a slate of Republican lawmakers who insisted that if Trump was not safe from investigation, neither were ordinary Americans.

The FBI was acting Monday with a search warrant signed by a federal judge, apparently as part of an investigation — a rarity in the annals of former U.S. presidents but relatively common in much of the world — into the potential mishandling of classified White House documents, some top secret. Trump might have taken them to his private golf club residence, it appears, rather than sending them to the National Archives, as is mandated by the Presidential Records Act. Though Trump, in a statement, likened the search to Watergate, neither he nor his lawyers had yet to release details of the warrant they were served.

There’s no evidence Trump’s political opponents, let alone President Biden, demanded the search. As my colleagues catalogued, Trump, who was impeached twice and has a long history of legal troubles, is involved in a sprawling series of investigations into his political and personal conduct. He also, at times, showed open disregard for the rule of law while in office — raging at U.S. generals to start shooting protesters on the streets of Washington, according to a forthcoming book by journalists Peter Baker and Susan Glasser.

Nevertheless, Republicans rallied around the former president. Florida Gov. Ron DeSantis (R) railed against the “weaponization of federal agencies” and the perfidious workings of the “Regime,” invoking the same shadowy specter of the “deep state” often conjured by Trump when in the White House. It is what happens in a “Banana Republic,” suggested DeSantis — whose critics, incidentally, also accuse him of weaponizing local state institutions in his relentless prosecution of an illiberal culture war.

Republican lawmakers seemed unencumbered by the irony, let alone rank hypocrisy, of representing the faction that openly called for the prosecution of its chief presidential campaign opponents not long ago. Only now that Trump is feeling the squeeze do they have cause for outrage. “Using government power to persecute political opponents is something we have seen many times from 3rd world Marxist dictatorships,” tweeted Sen. Marco Rubio (R-Fla.) “But never before in America.”

Mar-a-Lago search appears focused on whether Trump, aides withheld items

The history of executive power in the United States is replete with conspiratorial intrigues, skulduggery and acts of corruption. It is true that very few U.S. presidents have been held accountable for alleged criminal acts — former president Richard M. Nixon, for example, received a full pardon just weeks after he departed office. But the Republican pearl-clutching over the current administration replicating the habits of autocratic regime elsewhere ignores the obvious counterexample — that it is normal for healthy democracies to investigate, convict and sometimes imprison their former leaders. Indeed, the principle that no one is above the law is a fundamental cornerstone of all democracies.

A decade ago, soon after his presidential immunity expired, former French president Nicolas Sarkozy had his Paris mansion raided by local authorities. Sarkozy’s lawyers decried the move as “futile” at the time. But it was part of a long-running investigation that wound its way through the French judicial system and ended with Sarkozy being convicted last year of corruption and influence peddling. There was recent precedent: In 2011, Sarkozy’s predecessor, Jacques Chirac was found guilty of embezzling public funds and handed a suspended prison sentence.

As my colleague Rick Noack explained a few years ago, democratic governments around the world have various safeguards to prevent politically motivated investigations into their elected leadership. That includes the protections afforded to U.S. presidents, like the “absolute immunity” that Trump has invoked amid his various legal battles.

Most European democracies afford their heads of government or state a more narrowly defined immunity. But that doesn’t mean their societies are any more or less vulnerable to the predations of cynical political elites. Italy’s Silvio Berlusconi, a business mogul turned domineering former prime minister, went through years of legal proceedings and was found guilty, separately, of tax fraud and paying for sex with an underage prostitute. But he received light sentences, still commands an influential center-right political party and could be a major player in a future right-wing government.

Often, investigations into the alleged misdeeds of former presidents have served as a litmus test for democracies. In South Africa, the prosecution of former president Jacob Zuma on a string of corruption charges was widely viewed as a necessary move to bolster rule of law in the country. On the other hand, the Brazilian investigation and conviction of former president Luiz Inácio Lula da Silva has become irrevocably tainted as one shaped by political bias. Lula, no longer in prison, may find vindication this year in presidential elections where polls show him holding a commanding lead.

In Asia, countries that have looked to the United States for inspiration and support in building their democracies have prosecuted and imprisoned their former presidents. In 2009, a Taiwanese court gave former president Chen Shui-bian a life sentence after he and his wife were found guilty of embezzling funds and receiving bribes that were laundered through overseas banks. The sentence was later commuted to 20 years, and Chen received medical parole in 2015 on condition that he not participate in political life.

South Korea may be one of Asia’s most stable democracies, but it is arguably in a class of its own for its record of jailing ex-presidents. In 2018, as one commentator noted, half of all living South Korean presidents were in prison. That is no longer the case, with the pardoning last year of Park Geun-hye and the temporary release earlier this summer of Lee Myung-bak.

Both former presidents were convicted on various corruption charges, but their venality is neither a sign of entrenched corruption throughout Korean society — graft seems mostly a habit of the upper echelons of the Korean political class — nor of the weaknesses of the country’s consolidated democracy, which arguably only truly emerged in 2002.

On the contrary, despite being home to a political scene as angrily polarized as the United States, 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.

“A high-profile example of accountability would indeed strengthen U.S. democracy, not undermine it, and boost the rule of law,” tweeted Arturo Sarukhán, a former Mexican ambassador to the United States. He added that such accountability also “ensures the U.S. doesn’t speak out of both sides of its mouth when it pursues these values abroad.”

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