Does indicting leaders promote or subvert democracy? There is no one answer, as across the world, indictments have empowered leaders in some countries

Minutes after becoming the first former American president to be convicted of a felony, Donald Trump defiantly addressed his supporters, condemning the “rigged” justice system that had unfairly targeted “a very innocent man”. The “real verdict”, he said, would not be determined by a court but by voters come election day this November.

Trump was convicted of paying hush money to former porn star Stormy Daniels and then lying about it during the 2016 presidential campaign. He still faces 91 other criminal charges, ranging from accusations of fraud to attempts to tamper with the 2020 election result.

For his part, Trump has promised retribution, stating that if he does not get immunity, neither will “crooked Joe Biden”. Similarly, his supporters, including high-ranking members of government, insist that the former US president has been unfairly accused, likening Trump’s prosecution to the show trials that characterize political transitions in so-called banana republics.

However, while prosecuting a former president is unprecedented in America, several countries have routinely held their former and current leaders to judicial accountability. In the past 15 years alone, Nicolas Sarkozy and Jacques Chirac of France, Silvio Berlusconi of Italy and Park Geun-hye and Lee Myung-bak of South Korea have all been successfully prosecuted for corruption. Democratically elected leaders in Brazil, Argentina, Pakistan, Peru, and Taiwan have similarly been criminally charged.

Political immunity

While most democratic nations have procedural legitimacy in holding former and current heads of state accountable for crimes committed both in and outside of office, certain protections apply under political immunity. Within a democratic political system, the Constitution or domestic rules of procedure of a country generally delineate qualified immunity for members of national parliaments.

Under the British model, which originated from the 1689 English Bill of Rights, parliamentary non-accountability can protect any actions or statements a representative makes in their capacity as an elected official. According to former prosecutor Brendan Quigley, the scheme, typically adopted by former British colonies, was designed to allow parliamentarians to execute their governing duties without fear of reprisal. In the research paper Immunity, Italian Style: Silvio Berlusconi versus the Italian Legal System (2011), he writes that “being liable for all conduct would potentially mean subjecting every decision and act to scrutiny, a reality that would likely impact governmental efficiency and present substantial problems of administration.”

Under a second approach developed in France following the 1789 Revolution, non-legislative acts are also immunized unless the person in question has vacated office and/or their conviction receives parliamentary consent. Essentially, under the French model, wayward public officials can be punished in the ballot boxes but, except in extreme circumstances, not in the courts.

Most of the world’s democracies follow a combination of these two models.

As a small aside, Iceland falls on the extreme opposite end of the spectrum. In 2011, its former prime minister, Geir H. Haarde, was charged with doing too little to protect his country from the financial crisis of 2008. He was found guilty of not addressing the problems that Icelandic banks were facing, but due to his age and lack of criminal record, Haarde escaped sentencing.

Effectively, international and domestic law protects elected officials from being held legally responsible for actions undertaken while in power. However, this immunity is not absolute, and Trump joins a long list of leaders who have been jailed or prosecuted after leaving office.

According to a wide-ranging study conducted by media outlet Axios, since 2000, 78 countries have indicted their former or current heads of state. Since 1980, around half the world’s countries have put their leaders on trial, without even including impeachments or coups. Monarchies and dictatorships are least likely to be featured as their leaders tend to be long-serving and beyond reproach.

The region where most countries have jailed or prosecuted former leaders over the last two decades is Latin America. Brazil, Argentina, Bolivia, and Uruguay have all indicted former leaders, and in Peru, every president but one who served between 1985 and 2018 has been arrested or charged. In the vast majority of cases, the charges faced relate to corruption occurring during the time in office.

The legitimacy of the proceedings can vary. In a research paper titled Political Trials in Domestic and International Law (2005), University of Chicago professor Eric Posner writes that the “domestic political trial can be located on a spectrum that extends from the summary execution or detention at one end to the procedurally correct trial at the other end.”

At one extreme, the government imprisons or kills its opponents with little legal basis, and at the other, procedural protections such as the right to a lawyer reign supreme. “As the process increases, the government loses its power to disable its political opponents,” he writes, “but it gains something as well: the ability to claim credibly that its prosecutions serve the public interest rather than (solely) the government’s interest in its own survival.”

According to Morgan Wack, a professor at Clemson University, although there are distinctions between mature and nascent democracies, historically, political prosecutions have followed one of two paths. On the first path, the prosecution of a former leader indicates that democracy is functioning well and leads to elected officials being held to the same legal standards as the common man. However, on the second path, common in Latin America and South Asia, governments descend into a spiral “where judicial responses become a tool of the state and a tool of the ruling government.” Here, prosecutions are common, and trials are for political gain over accountability.

At this point, it is worth noting that leaders can also be charged under international law, a precedent established by the post-World War II Nuremberg and Tokyo trials. The successor to these international tribunals is the International Criminal Court (ICC), established in 2002. Unlike the International Court of Justice, which adjudicates the responsibility of states, the ICC can prosecute individuals who have committed serious crimes.

However, the ICC has a diminished standing as countries like the United States, China and Russia are not party to its jurisdiction, and while their leaders can be convicted by the court, the country itself is under no international obligation to arrest them. That being said, ICC judgments are enforced by 124 countries that are parties to the Rome Statute, a treaty outlining the functioning of the court. When the court convicted Vladimir Putin in 2023 for war crimes, the Russian president cancelled his plans to attend the BRICS summit in South Africa in the apparent light of Pretoria’s obligation to arrest him.

Some will allege that this judgment is effectively insignificant but in domestic courts, indicting a former leader can have a myriad of consequences, ranging from empowering the candidate to halting their political careers.

How it impacts the candidate

Some leaders are wholly or partially unaffected by the charges levied against them. Silvio Berlusconi, the late four-time prime minister of Italy, famously described himself as the “universal record holder for the number of trials in the entire history of man”.

As ridiculous as that sounds, it is not complete hyperbole.

Between 1994 and 2011, Berlusconi was accused of tax fraud, sex scandals, and mafia involvement. He claimed to have endured 2,500 court hearings and spent USD 430 million in legal fees. While he was convicted of bribery, tax evasion, and having sex with an underage prostitute, his convictions were mostly overturned by Italy’s appellate process, with two of his acquittals being a result of his own government changing the laws. Berlusconi’s legal woes were extensively documented, but for reasons not understood by political historians, seemed to barely factor one way or another in his impressive political career.

In partially free democracies, political persecution can have a devastating impact on the person charged. Take Pakistan, for example. On May 9, 2023, paramilitary forces arrested former Pakistani prime minister Imran Khan on charges of corruption. In response, his supporters erupted in protest, attacking the army headquarters in Rawalpindi along with other government and military buildings.

Khan, his party members, and his supporters now face a litany of charges across the Pakistani legal system. The former prime minister has been incarcerated for over a year. Many of his party members resigned and distanced themselves from him during this time, even as his party won a surprising number of seats during the 2024 Pakistani elections.

However, until and unless he regains the support of the military, Khan’s prospects as a free man seem bleak. He might, though, take some comfort in the case of another former Pakistani prime minister, Nawaz Sharif. In 2018, Sharif was sentenced to 10 years in prison due to his involvement in the Panama Papers controversy. He was granted bail for medical treatment a year later, fled to London, and refused to return. However, after his brother Shehbaz Sharif came into power in 2022, Nawaz was acquitted in up to 41 different cases, is back in Pakistan, and is reportedly a major player in the country’s politics.

In some cases, imprisonment has even benefited the candidate in question. This particularly applies during instances of regime change and when the person was convicted before assuming office. In 1964, Nelson Mandela narrowly escaped the death penalty for agitating against the apartheid government of South Africa. He was sentenced to life in prison, permitted only one 30-minute visit with a single person, and restricted to sending and receiving only two letters every year.

Despite these restrictions, during his 27 years in prison, Mandela went from being an obscure political agitator to the face of South African resistance. In 1990, he was released from confinement and, at the age of 71, became, as described by The New York Times, “the virtually uncontested leader of millions of South African blacks”.

Former South African President Nelson Mandela holds a symbolic millennium candle through the bars of the prison cell in which he was incarcerated on Robben Island.

Joining Mandela’s ranks are a host of diametrically divergent characters. Jawaharlal Nehru was imprisoned for nearly a decade while fighting for India’s independence, a mark of honor he embraced as the country’s first prime minister.

Aung San Suu Kyi of Myanmar (then Burma) was also arrested in 1989 after a military junta came into power. She spent 15 of the next 21 years under house arrest out of international indignation, even receiving the Nobel Peace Prize while imprisoned in 2008. After her release in 2010, she re-joined politics, and in 2016, she was elected as the de facto prime minister of Myanmar. She was re-elected in 2020, but less than a year later, the military declared the results fraudulent and arrested Suu Kyi. She remains in prison to this day.

In less pleasant company, Adolf Hitler was also imprisoned in 1923, following his role in the Munich Beer Hall Putsch. Hitler received a relatively lenient sentence of nine months in jail for attempting to overthrow the German government and used his trial as a pulpit to deliver a 3-hour-long defence of his motives and political credibility. Like Mandela, he went into prison as a relative unknown but emerged as one of the leading politicians of his time. Ironically, four of Hitler’s fellow prisoners and members of his Nazi party would be tried and sentenced as war criminals in 1945. Hitler escaped the same fate by committing suicide right before Berlin fell to the Allied coalition.

Wack outlines why arresting former leaders can be challenging. He states that, unlike the general public, political leaders hold “parasocial relationships” with the general public. Therefore, what happens to them is not viewed strictly based on facts but also on the narrative they construct for the public. “It depends on the crime that’s been committed,” he says, “but usually, candidates deflect to paint the wider system as being corrupt and justify their actions as being towards the service of their country.”

All of this begs the question: does indicting former, current, or future leaders promote or subvert democracy?

Indictments and democratic norms

James Long, a professor at the University of Washington, argues that putting world leaders on trial is a sign of a healthy democracy, a sign “that the checks and balances system is working the way it’s supposed to.” This particularly applies in transitional settings, when a democratic system succeeds an authoritarian one.

Transitional trials took place or were seriously explored in the following contexts: Greece and Portugal in the 1970s; Argentina, Uruguay, and Chile in the 1980s; France and other occupied countries after World War II; Poland, Czechoslovakia, Hungary, and Germany in the 1990s. These were politically charged trials since the defendants were tried not for any crimes for which they could have been found guilty in the previous system but rather for their involvement in an increasingly hated previous government.

Cath Collins, Professor of Transitional Justice at the University of Ulster, argues that while political trials in transitional systems do violate the rule of law by enforcing standards retroactively, they have an important role to play in strengthening future democratic institutions. In Chile under Augustes Pinochet, for example, she states that “a functioning court system, autonomous at least in name and never closed nor suspended, had been one of the principal artifacts the dictatorship had liked to show off to outside critics.”

Thus, when Pinochet was deposed and subsequently indicted in 2000, the judgement of Chile’s Supreme Court “carried more political weight than the views or actions of the incoming presidency and legislature, each seen as captured by particular interests or hampered by the weight of political negotiations”.

In most cases, however, countries transitioning to democracy tend to overlook the misdeeds of past leaders. According to research by the University of Washington, only 23 per cent of countries that transitioned to democracy between 1885 and 2004 charged former leaders with crimes after democratisation. The use of indictment to undermine a regime’s democratic credentials is far more common.

Prosecuting former leaders can ignite political tensions and destabilise domestic politics, as is the case with Israel. In 2019 then former Israeli prime minister Benjamin Netanyahu was charged with a litany of crimes. His indictment caused a turbulent power shift that saw five elections in four years, and in December 2022, Netanyahu took back the prime ministership in spite of his legal issues.

Now that he is back in office, Netanyahu has advocated for a comprehensive judicial reform that would grant him the last say in judge selections and give his administration the ability to reverse rulings from the Supreme Court.

Prosecutions can indicate a strong rule of law but they can also demonstrate that the legal system is easily weaponised. Leaders on trial use several tactics to undermine democratic institutions according to Long, including alleging that the system is corrupt or that their situation is politically motivated.

Throughout history, autocratic rulers have suppressed their opponents with little regard for even the semblance of due process. However, in recent years, dozens of these administrations have resorted to publicly denouncing their expelled opponents and intimidating others into compliance by using courts with predetermined judgments. According to Wack, “Once you begin prosecuting former leaders, there isn’t much stopping future leaders from using judicial tactics to undermine their opponents.”

There is also the question of legitimate political persecution, if not in terms of court procedure then in terms of who prosecutors choose to target. As US Supreme Court Justice Robert Jackson said in 1940, “The most dangerous power of the prosecutor is that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”

Brazil epitomizes this conundrum.

In 2018, former Brazilian president Luiz Inácio ‘Lula’ da Silva was arrested as part of a major anti-corruption wave across the country. The government charged Lula with abusing his office by accepting bribes but his supporters denounced the investigation as itself being corrupt, a claim that was later substantiated by an appeals court. Lula was not acquitted of the charges but his case was thrown out for procedural reasons. He was re-elected in 2022.

Depending on one’s point of view, Brazil’s problem shows that either the government is utterly corrupt or that no one is above the law. Politicians and people find it simpler to accept the sins of leaders as an inevitable part of doing business when there is such misunderstanding.

Trump’s legal adventure by comparison is just beginning. According to Long, he will be judged harshly by history, if not the courts, for his actions as president. However, Wack argues that, whether found innocent or guilty, Trump will not be viewed any differently by his supporters or detractors alike. That polarization, he states, is a bigger challenge for the state of American democracy than any crimes Trump is accused of.