A president on trial

In the discussion of Donald Trump’s refusal to concede defeat in the United States presidential election, it’s often noted that there’s more than just a political interest at stake. Staying in office is Trump’s best way of staying out of jail: state and federal prosecutors are said to be working to build a case against him on a number of fronts once he no longer has the protection of being head of state.

Trump this morning pardoned one of his accomplices, Michael Flynn. He can easily pardon more before his term expires, but it’s generally not thought possible for him to pardon himself; certainly the attempt has never been made. Joe Biden, his successor, would have that power, but he has promised not to use it – mindful, perhaps, of the damage it did to Gerald Ford’s reputation in 1974 when he pardoned his predecessor, Richard Nixon.

In any case, a pardon would extend only to federal offences, not state. So it seems quite likely that Trump’s legal battles will be a major news story in the coming years. But although that would be a new experience for the United States, there is no shortage of precedents in other countries, including just this week in France.

Nicholas Sarkozy, president of France from 2007 to 2012, appeared in court on Monday charged with corruption and influence-peddling. It was only a short appearance; the trial was adjourned pending a medical examination of one of his co-accused. But proceedings are expected to run for another fortnight, and a number of other charges and investigations are in the pipeline.

High-profile legal cases rarely move quickly; this one has been under way since 2014 (I wrote about it at the time) and involves allegations that Sarkozy offered a promotion to a judge in return for confidential information concerning another investigation into Sarkozy, relating to illegal campaign contributions back in 2007 from then Libyan dictator Muammar Gaddafi. Charges from the latter investigation are yet to go to trial, as are those concerning fraudulent overspending in his 2012 campaign.

Nor is Sarkozy the first French president to run into legal trouble, although he is the first to actually appear in the dock. His predecessor, the late Jacques Chirac, received a two-year suspended sentence in 2011 on misappropriation charges that dated back to his time as mayor of Paris in the 1980s, although ill health prevented him from appearing in court.

Yet in France, as I remarked in 2014, “there seems to be a degree of public tolerance for this sort of offence.” Consider, for example, the centre-right presidential primary of 2016. Sarkozy, attempting a comeback while already the subject of multiple investigations, placed third; ahead of him was former prime minister Alain Juppé, who himself had a conviction for misappropriation behind him but had recovered enough to serve as foreign minister under Sarkozy.

Beating both of them was another former prime minister, François Fillon. But he only managed third in the following year’s presidential election (behind the far right’s Marine Le Pen and eventual winner Emmanuel Macron), because his campaign was plagued by a scandal over diverting public money into fictitious employment for his wife. They were subsequently convicted, and Fillon was sentenced this year to two years in prison (he remains free on appeal).

Despite this remarkable record, I doubt that the French political class, or even the centre-right in particular, is especially corrupt. It seems more probable that the same sort of thing goes on among politicians in most countries (Australian readers will be able to think of some examples that the defamation laws prevent me from mentioning), but that in France, perhaps with a more fearless judiciary, they are more prone to getting caught.

But it does raise interesting questions about how important corruption is. There are enormously more harmful things that political leaders can be doing than raking off a couple of million euros for their family (or, in a nod to Silvio Berlusconi, taking the equivalent in non-monetary favors). Some of history’s most notorious tyrants were known for their personal incorruptibility.

It will be interesting to see how the Sarkozy saga plays out. Chirac, who left office with very low approval ratings, saw his popularity rise sharply in retirement despite his legal troubles. Sarkozy has always been a more controversial figure; it’s not clear, however, that anything that’s likely to be revealed in court will make much difference to the way the public sees him.

Back on the other side of the Atlantic, Trump has clearly treated the presidency as an opportunity for personal money-making. But if that was the worst of his sins, and he had otherwise behaved as a model president, it’s likely that the public – even in more puritan American – would have been more forgiving. Even as it is, his supporters seem as untroubled by his corruption as they are by everything else.


3 thoughts on “A president on trial

  1. I wouldn’t say that it is not possible for a US President to pardon himself. It’s never been done before and so the extent of the President’s pardon power is untested in this respect. If Trump pardons himself and the pardon is allowed to stand, that would set a precedent for future Presidents.


    1. Yes, the power is definitely untested, and if he tried it it would probably end up in court. There’s a good report on the question today in the Guardian; this quote from Keith Whittington seems to me to get at the key issue: “Conceptually, the pardon is an act of mercy, and that would seem to imply that it is only possible to bestow mercy on someone else and so there is an implicit bar against a self-pardon.” ( https://www.theguardian.com/us-news/2020/nov/26/after-flynn-pardon-could-trump-do-the-same-for-himself )


  2. Based on Charles article it seems that a pardon itself may be non-justiciable, but the power of the pardoner could be. Ford’s pardon of Nixon was not tested even though specific alleged offences were not detailed. So there may be two possible flies in the ointment for Mr Trump.


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