Donald Trump may this week have become the first current or former president of the United States to be criminally charged, but ex-leaders in many other countries have long been investigated, prosecuted – and occasionally, yes, imprisoned.
The world’s second biggest democracy seems to have been reluctant to pursue former presidents – despite, in one instance, clear evidence of criminality – mainly for fear prosecution would destabilise and divide even further an already polarised country.
That’s why Gerald Ford pardoned Richard Nixon over Watergate: the “tranquility to which this nation has been restored” would be gone, he said, and the US “needlessly diverted from meeting its challenges” if “we as a people … remain sharply divided”.
He had a point. “Presidents and prime ministers aren’t just anyone,” write Victor Menaldo, James Long and Morgan Wack, political scientists at the University of Washington, who have studied presidential prosecutions around the world.
“They are chosen by a nation’s citizens or their parties to lead. They are often popular, and sometimes revered. So proceedings against them are inevitably perceived as political, and become divisive,” the academics note in the Conversation.
But the counter-argument is equally, if not more forceful: everyone should be subject to the rule of law, and failing to prosecute criminal wrongdoing not only puts ex-leaders above the law, but encourages their successors to behave likewise.
It’s a call that is clearly easier to make in a stable, long-established democracy than in a relatively new one, the academics note, and dozens have made it: since 2000, according to Axios, 78 countries have jailed or prosecuted leaders who left office.
In some, it seems almost automatic. The former South Korean president Park Geun-hye was sentenced to 24 years in jail for corruption in 2018 (she served five). Lee Myung-bak, her predecessor, was recently pardoned after getting 17 years for embezzlement and bribe-taking in 2020.
Lee’s predecessor, Roh Moo-hyun, who was president from 2003 to 2008, killed himself a year later amid an investigation by prosecutors into allegations he accepted more than $6m in bribes from a South Korean businessman while in office.
Two former French presidents have also been pursued since leaving office. Remarkably, Nicolas Sarkozy was convicted of corruption, influence peddling and illegal campaign financing and handed twin custodial sentences – a year in jail, and a year’s house arrest – in separate trials in 2021.
Sarkozy is also under investigation over an allegation of illegally accepting campaign funds from the former Libyan leader Muammar Gaddafi. His predecessor, Jacques Chirac, was given a two-year suspended sentence in 2011 after being found guilty of influence peddling, breach of trust and embezzlement while mayor of Paris.
France has also convicted two former prime ministers: Chirac’s protege Alain Juppé, was given a 14-month suspended sentence in the same Paris case as the late president, which revolved around officials who were on the city hall payroll but were actually working for their conservative RPR party.
Sarkozy’s prime minister, François Fillon, was handed a five-year prison sentence with three suspended, and barred from office for 14 years, in 2020 after it emerged that his wife Penelope and two of their children had been paid about €1m for non-existent jobs as his parliamentary assistants.
Israel, too, has convicted both a former president, Moshe Katsav, who was sentenced to seven years in prison in 2011 for rape and other sexual offences, and a former prime minister, Ehud Olmert, who was handed a total of 27 months in jail on various charges of corruption, obstruction of justice and accepting bribes.
Israel’s current prime minister, Benjamin Netanyahu, is also on trial after being indicted in 2019 in three separate corruption cases and faces more than a decade in prison if convicted, although the court proceedings could take years.
Italy’s former prime minister Silvio Berlusconi, has faced prosecution more than 30 times in his controversial business and political career, on charges including embezzlement, false accounting and bribing a judge. Many failed to go to trial, sometimes because he changed the law under which he had been charged.
Only once was he successfully convicted, for tax fraud, in 2013. That led to a four-year prison term, of which three were pardoned, a year’s community service and a six-year bar from legislative office. (Another conviction, for paying for sex with an underage exotic dancer, was later overturned.)
The region where the most former leaders have been jailed or prosecuted, however, is Latin America. In Brazil, Luiz Inácio Lula da Silva was sentenced to 12 years in jail for corruption in what many Brazilians believed was a politically motivated prosecution, but freed in 2019 and re-elected last year.
In December, Cristina Fernández de Kirchner, Argentina’s most powerful – and polarising – politician since Juan and Eva Perón, was sentenced to six years in jail in a corruption case dating back to her time as president; as vice-president, she has immunity from arrest and is appealing.
After years failing to prosecute blatant government corruption, Mexico may finally finally making up for lost time, with prosecutors confirming last year that former president Enrique Peña Nieto was under investigation, while in Peru, every president in office from 1985 to 2018 has faced criminal charges.
That kind of record suggests a strong, competent and independent judicial system, endemic government corruption, politically motivated prosecution – or possibly a combination of all three. In more recent – and fragile – democracies, many governments have chosen simply to avoid any possible confusion.
According to Menaldo, Long and Wack’s research, less than a quarter of countries that transitioned to democracy between 1885 and 2004 have charged former leaders with criminal wrongdoing. For some years, that was the case in South Africa.
In an effort to allow democracy to establish itself, the apartheid government and ANC agreed to avoid prosecutions; the violence the country witnessed when former president Jacob Zuma – facing a raft of corruption, fraud and money-laundering charges – was jailed for contempt of court may indicate why.
Elsewhere, countries such and Germany and Britain have relied on parliamentary processes to judge former leaders such as ex-chancellor Gerhard Schröder (over his relations with Russia) and former prime minister Boris Johnson (over Partygate).
Iceland, meanwhile, has gone a big step further. Its former prime minister, Geir Haarde, was the only politician in the world to face prosecution over the 2008 financial crisis. He dodged three more serious charges, but ended up being convicted, in essence, of not doing his job well enough. The rest of the world can but dream.
