When Leaders Are Lawbreakers

The prosecution of a presidential candidate “presents a significant test of American democracy,” the political scientist Lucan Ahmad Way wrote in Foreign Affairs a year ago, after former President Donald Trump was indicted in Manhattan for falsifying business records to hide a hush-money payment during his 2016 campaign. “Although the indictment is almost certainly justified, legal action against a major candidate for office in a context of growing polarization and right-wing support for violence cannot be taken lightly,” argued Way, a distinguished professor of democracy at the University of Toronto.

On Thursday, May 30, a jury of 12 New Yorkers found Trump guilty on all 34 felony counts he faced in the hush-money case. He is still facing separate criminal charges in three other cases, one involving his retention of classified documents and two pegged to his attempts to stay in office after losing the 2020 presidential election. Trump’s opponents and critics hailed the conviction as a victory for the rule of law; his supporters accused Manhattan District Attorney Alvin Bragg and the other prosecutors who have charged Trump with “weaponizing” the legal system. Trump himself called the outcome “a disgrace” and falsely alleged that the trial was “rigged.”

Until now, the prosecution of a former president had been unprecedented in American history. But the rest of the world provides many examples of top leaders on trial—including in developed democracies. For insight into how those prosecutions have affected democratic rule and how this one might affect American democracy, Executive Editor Justin Vogt spoke with Way on Friday morning.

Last year, you wrote that Trump’s conduct had created a dilemma. Prosecute him, and you risk normalizing the use of the legal system to pursue political opponents. Fail to hold him accountable, and you risk emboldening others to attempt the kinds of conduct Trump has been accused of. In the end, you argued that the second risk was greater than the first: there was “really no viable alternative to holding Trump accountable for his actions,” you wrote. Having watched this case and the three others that are still underway—and all the responses that they’ve generated—do you still feel that way?

Absolutely. It’s obviously quite a danger, in any political system, when you start prosecuting politicians. Many countries have used the legal system to target political opponents. Think of the Russian opposition figure Alexei Navalny, who was put up on charges of embezzlement after he became a serious political opponent of [Russian President] Vladimir Putin and eventually died under suspicious circumstances in prison. So I think it should always give one pause. At the same time, America is not Russia. We have a very robust legal system where the accused are fully defended—especially people as well-resourced as Trump. This is maybe a bad legal system if you don’t have the kind of resources that Trump has, of course. But broadly speaking, there’s less room for politicization in the American system than in others.

As you wrote in your piece, there are other democracies, including developed liberal democracies—Argentina, France, Israel, and quite a few others—that have prosecuted both current and former top leaders. And sometimes, as you pointed out, doing that has strengthened democratic rule instead of weakening it. Broadly speaking, what are the factors that determine whether the outcome is good or bad for a country’s democracy?

First of all, I should note that it’s more common to see former leaders get indicted as well as convicted, as opposed to current ones. And in many of those cases, it strengthens the rule of law by showing that people as powerful as a leader of a country can be convicted in the legal system. I think in that sense, it should give people confidence in the legal system. I’m not sure if that’s going to be the case here in the United States. And it’s very rare in a democracy for someone to have actually been convicted and then take power, which is obviously a strong possibility here. That would be very close to unprecedented. [Brazilian President Luiz Inácio] Lula da Silva was convicted [in 2017] and then won office, but only after his conviction was overturned because it turned out the judge had been colluding with the prosecutor. [In 1998], Anwar Ibrahim, who had been deputy prime minister in Malaysia, was convicted of sodomy. But that was a case where there was a clearly politicized process, and he was later pardoned by the king of Malaysia and became prime minister in 2022. I think the only example where someone was actually convicted while in office was Vice President [Cristina Fernández de] Kirchner in Argentina, who was convicted in 2022 on corruption charges [relating to her earlier stint as president]. She was granted immunity to finish her term as vice president, and later the charges were dismissed.

I’m curious about the ways in which the political rivals of convicted leaders have reacted. Were there cases where the opposition reacted in a way was not just about seeking political advantage but also an attempt to maintain or restore faith in the system? I’m wondering if there are historical examples from other countries that could offer a constructive model—or a cautionary tale—for the Democratic Party and other Trump rivals and critics, and especially President Joe Biden.

It’s hard to think of examples. But I think it’s obvious what Biden should do: absolutely nothing. Stay very clear of it and don’t even comment on it. Just let the courts, on the remaining cases, do their business.

Because it’s a potential trap in a way for Biden, right? The more he points to the conviction of Trump and the other trials of Trump, the more he risks playing into Trump’s narrative that Biden himself is behind the prosecutions and has weaponized the legal system.

Absolutely.

Let’s talk about that accusation a bit and how it relates to examples elsewhere. Are there places where you had a legal system that may not have been perfect but was basically legitimate, but then started to be used as a political tool? That is essentially what the Republicans and Trump are claiming is already happening here. Putting aside whether they’re correct or not, what does that process look like in places where it has clearly happened? And is there a risk of that happening in the United States?

Even in the United States, there is always a danger that the law will be weaponized: sometimes this is called “lawfare.” What is good about the United States, though, is that defendants have enormous amounts of rights, and there are checks on this politicization. But there are clear examples of where there was politicization: [Independent Counsel Ken] Starr’s investigation of President Bill Clinton was a clear example. And this particular case against Trump did have a whiff of Ken Starr: the crimes were relatively minor, at least compared to the other charges Trump faces, and they involved sex. But this is more Al Capone than Ken Starr: as With Capone [who was convicted of tax evasion rather than his many other crimes] the law Trump broke was relatively minor, but it was provable.

What I think you’re getting at is that this particular outcome might be unprecedented, but the idea that the U.S. legal system has never been politicized in the past is a myth: it has been. Now, there’s a cynical version of that view, but it’s also possible to say, “Yes, the U.S. legal system has been used for political ends in the past—and yet it has survived as a mostly legitimate democratic institution.”

Right, because it retains an enormous number of checks. Bragg had to convince a grand jury to bring the indictment, and the prosecutors had to convince all the jurors. That really puts limits on politicization. And remember that Trump never managed to bring indictments against opponents and critics of his, like [former FBI Director] James Comey and [former Secretary of State] Hillary Clinton and others, while he was in office.

The question now, though, is whether he’ll make good on threats like that if he returns to office.

I guess maybe we’ll find out. But I don’t think his being charged or convicted will make a difference on that; he’s going to do that regardless, if he wins.

Are there other leaders who were prosecuted and then came back to power and used the legal system to carry out retribution?

I haven’t seen evidence of that in democracies, but it’s certainly plausible in the American case. I think there is a common pattern of indicting or prosecuting former presidents in less developed democracies: one of the reasons why Boris Yeltsin, the first president of postcommunist Russia, chose Putin to succeed him was because he was convinced that Putin would not prosecute him, and he was right. And of course leaders trying to stay in power to avoid prosecution is incredibly common. That most often happens at the legislature level, because in a number of countries—Argentina, Ukraine, and some others—holding office gives you immunity.

You want to stay in office to stay out of prison. That’s arguably a dynamic at work in Israel right now, where Prime Minister Benjamin Netanyahu is currently on trial for corruption.

Right, and I’m sure that’s also a motivator for Trump. And the Ukraine example is interesting. Because of the immunity, members of parliament encouraged criminals to run for office, which was bad. But at the same time, the immunity limited the president’s capacity to go after and target members of the opposition who were in parliament. So ultimately, the immunity had a positive effect on democracy, even though it allowed a lot of corrupt people to be involved.

The immunity had the effect of making it harder to weaponize the legal system?

Basically, yes. And then there is the most bizarre case, India, where I believe 40 percent of members of parliament in 2019 had criminal charges against them. Many voters actually consider it a plus, because criminals are considered to be people who are able to get things done. But I did find one study that showed districts that elect criminals [in India] tend to have lower GDPs. It’s hard to know which way the causal arrows point, but I think it probably suggests that high levels of corruption reduce GDP, at least in India.

Another issue you raised last year was the risk that prosecuting a former leader can fuel intense polarization and even political violence.

One example is the prosecution of former Prime Minister Fatos Nano in Albania, in 1993, which was I think one contributing factor to the violence that broke out in that country in the mid-1990s. Albania is a much weaker state than the United States, so it’s not clear how comparable that is. And, interestingly, in America, the threat of political violence is I think lower now than it was a few years ago, mainly because those who participated in the January 6 insurrection got jail time. There were consequences. So I actually am less nervous right now about the threat of violence. And in addition, it’s worth pointing out that there really hasn’t been, despite all these indictments, much violence in response to what’s going on with Trump. Now, if Trump pardons the people who participated in the January 6 insurrection, as he has promised to do if he wins, then it’s a different situation.

How do you think the outcome in this Trump case and his other trials will be viewed internationally? I’m wondering about the effect on how people see the United States, the American system, and American power and influence.

I think the effect is only going to be negative, unfortunately. I think it will contribute to an already widespread perception of dysfunction in the United States. Leaders like Putin and [Chinese President] Xi Jinping love this because, especially if Trump gets elected, it shows the corruption of democracy, and it certainly does not make democracy look more appealing.

But there’s a counterargument: this outcome shows that in a genuine democracy, nobody’s above the law.

Maybe. But in the vast majority of developed democracies where current or former officials were prosecuted, the minute that charges were brought, the official resigned or stepped away from politics. And that has not happened here. Instead, he’s getting nominated by one of the two major political parties. So, yes, the fact that a very powerful person was convicted says something good about American institutions. But the fact that one of the major parties will nonetheless nominate him says something else.