Indicting an Elected Leader; What Historical Precedents Exist?

By Brendan Wilson

Donald Trump has been indicted by the US Justice Department on charges related to his handling of highly classified documents after leaving the White House. Like a humongous orange asteroid slamming into the Earth's surface, the explosive impact of the indictment was foreseen, but no less shocking.

The filing marks an unprecedented move in a country growing weary of firsts. America now faces the fraught reality of prosecuting a presidential candidate during what is expected to be one of the most polarizing, contentious elections in the history of our democratic experiment.

Fueling the drama is the fact that the investigation was overseen by lead counsel Jack Smith, who reports to Merrick Garland, who in turn reports to Joe Biden, fellow hoarder of classified documents and chief political rival to the recently accused. Not a great look.

According to the unsealed indictment, Trump is being charged with willful retention of classified information, withholding a record, conspiracy, false statements, and obstruction. In a deliciously ironic twist, the man who introduced the "lock her up" chant to American presidential politics now faces up to 400 years behind bars.

More vultures circle overhead, including an earlier indictment for alleged campaign finance improprieties, a Georgia investigation into efforts to overturn the 2020 election, and an investigation into the role played on that “beautiful day,” the January 6th assault on the Capitol.

Donald Trump and his family appear to be absorbing the news with equanimity and poise, soberly reflecting on their legal and political options. Actually, they’re not.

The former president immediately took to Truth Social, the Arby's of social media sites, to declare that “The corrupt Biden Administration has informed my attorneys that I have been indicted, seemingly over the Boxes Hoax.”

What remains of Trump's legal team called the charges an “act of open legal ‘warfare’” and Donald Trump Jr. announced on Twitter that “we’re living in a 3rd World Banana Republic,” an apparent reference to a faux democracy in which leaders weaponize the judiciary to wipe out political opponents.

Given the circumstances, Don Jr's frustration is understandable, but the inconvenient truth is that wealthy democracies have been hauling their political leaders into court for years. While the federal indictment is a first for us, globally speaking, it is hardly novel.

Take our middle eastern little cousin, Israel. In 2009 it charged former prime minister Ehud Olmert with bribery and obstruction of justice. He was found guilty in 2012 and sentenced to six years in prison, serving a reduced sentence before being released in 2017. Current prime minister Benyamin Netanyahu has long been under investigation for bribery, fraud, and breach of trust. He now clings to the prime minister’s post like a life raft for the quasi-immunity that it provides.

In 2014, the French government tried and convicted Nicolas Sarkozy for corruption. He was sentenced to three years, which was reduced to one after a lengthy appeal. His predecessor, Jacques Chirac was also found guilty of corruption and kickbacks and sentenced to two years in prison.

Italy’s Trump carbon copy, Silvio Berlusconi, underwent a host of humiliating legal ordeals after leaving office in 2011. He was indicted on many changes including corruption, fraud, tax evasion, and most sordidly, paid sex with a minor. He was acquitted of many charges, but Italy’s highest court upheld an earlier tax fraud conviction.

In South Korea, Lee Myung-bak was indicted in 2017 for corruption and embezzlement and sentenced to 15 years. His successor, Park Geun Hye was impeached and ousted for bribery and abuse of power before being sentenced to 25 years in prison. Both Lee and Park were pardoned by successors and now breath free air.

Finally, former Argentinian president Cristina Fernandez de Kirchner was convicted of fraud last December and sentenced to 6 years behind bars. Like Netanyahu, she remains out of prison due to the immunity offered by her current position as vice president.

These cases seem to suggest that democratically elected leaders, like the citizens they lead, should be subject to "one set of laws." But the reality is more complicated. These leaders were chosen by a large subset of their populations, and the charges they face were filed by justice systems that are politically led, often by their opponents. There is always the risk that what one side labels the pursuit of accountability and justice is perceived by the other as a witch hunt - and perception is reality.

One notable omission from the list above is Hillary Clinton, who in 2016 was famously not indicted for improperly storing classified documents on a private email server and then going to curious lengths to cover it up. Trump behaved abominably, as he usually does, but the standard set with Hillary should also apply in his case. The fact that it wasn't impairs the credibility of our justice system.

Hate him or love him, the Donald is at the head of crowded pack vying to be the Republican nominee for next year's presidential election. Ardent Trump supporters would interpret a pre-election guilty verdict as a denial of their electoral voice. By filing these charges, Jack Smith has effectively tossed a lit cigarette into a dry forest, risking a conflagration that could make January 6th look like an afternoon picnic.

If that sounds a bit extreme, consider the remarks made by former Arizona gubernatorial candidate Kari Lake at the Georgia Republican state convention last week: "I have a message tonight for Merrick Garland and Jack Smiith and Joe Biden – and the guys back there in the fake news media, you should listen up as well, this one is for you…. If you want to get to President Trump, you are going to have to go through me, and you are going to have to go through 75 million Americans just like me. And I’m going to tell you, most of us are card-carrying members of the N.R.A.”

There are two ill-trodden paths out of this morass. The first is for Biden to channel his inner Gerald Ford and pardon Donald Trump. Since this is expected to occur on the 10th of Never-ary, we have to hope for the second; that our electorate somehow moves passed both Donald Trump and Joe Biden in the 2024 election cycle, creating a scenario in which Trump's legal wounds fester in the background of an election battle that doesn't include him.

The indictment precedents discussed above prove that strong, mature democracies can handle the prosecution of former leaders without collapsing. Over the next 18 months we will find out how durable our democracy truly is. The die is cast, all there is left to do now is wait and see.

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Al Jazeera. (2023, June 5). Argentinian judge dismisses corruption case against VP Kirchner. Cristina Fernandez de Kirchner News | Al Jazeera. https://www.aljazeera.com/news/2023/6/5/argentinian-judge-dismisses-corruption-case-against-vp-kirchner

BBC. (2017, July 2). Ehud Olmert, Israel’s jailed ex-PM, is released early. BBC News. https://www.bbc.com/news/world-middle-east-40472158

Dave Lawler, I. S. (2023, March 31). Former leaders have been jailed or charged all over the world. Axios. https://www.axios.com/2022/08/26/countries-where-former-leaders-jailed-charged

Encyclopædia Britannica, inc. (2023, June 9). Silvio Berlusconi. Encyclopædia Britannica. https://www.britannica.com/biography/Silvio-Berlusconi

Gilbertson, N. (2023, June 9). Trump Jr. on father’s indictment: “we’re living in 3rd World Banana Republic.” Breitbart. https://www.breitbart.com/law-and-order/2023/06/08/donald-trump-jr-on-fathers-indictment-were-living-in-3rd-world-banana-republic/