Should Trump Be Prosecuted?
History shows that holding former leaders to account pays off—if it’s done in the right way.
This article is part of The Biden Transition, Foreign Policy’s ongoing coverage of how U.S. President-elect Joe Biden builds a new White House administration—and what the new team’s policies might be.
For almost as long as Donald Trump has been president, Americans have been debating whether or not he should be prosecuted for the various crimes he may have committed in office. That debate intensified on Saturday, when Trump called Georgia’s secretary of state, Brad Raffensperger, and appeared to threaten him unless he came up with 11,000 more votes for the president. Then came Wednesday’s mass assault on Capitol Hill, which Trump did so much to incite.
Advocates of prosecuting or impeaching Trump make strong arguments, but so do those who think the country should just move on. That makes choosing the right answer difficult—especially because neither side has used much data to make a case. But the evidence is out there. To understand what the history of past attempts to prosecute heads of state can teach us, Jonathan Tepperman, Foreign Policy’s editor-at-large, spoke on Wednesday with Pablo de Greiff, who from 2012 to 2018 served as the first U.N. special rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence. Their conversation has been edited for length and clarity.
Jonathan Tepperman: The strongest and most basic argument made by advocates for prosecution is that the United States is a country of laws and must do everything it can to demonstrate that no one is above those laws. Opponents of prosecution argue that a trial could turn Trump into a martyr, further energize his base, help raise even more money, and encourage him to run in 2024—so the best thing for the country might be to just turn the page.
What does the historical record tell us about whether or not prosecutions work? And what metrics should we use to judge whether these cases have been good or bad for the countries involved?
Pablo de Greiff: To start with, it makes a huge difference what you would prosecute a former leader for. It’s not an abstract debate about impunity versus prosecution. It should be a precise debate about specific charges and what consequences would follow from prosecuting them.
As for how to measure the effectiveness of prosecutions, when it comes to issues like the rule of law, metrics are very difficult to come by. It’s hard to determine whether an individual case has an impact on rule-breaking in the future.
Now, I do think that there is a case to be made for the importance of making sure that legal systems signal that no one is above the law. Therefore, for instance, Guatemala’s prosecution of its former president, Efraín Ríos Montt, was very important because all Guatemalans got to see him being forced to comply with a court of law and a judge who repeatedly told him, “No, it’s not your turn to speak. No, you cannot address me this way. No, this is not something that you can say.” Scenes like that alone were extraordinarily important for a country like Guatemala.
In deciding whether to prosecute Trump, I think two major considerations should be kept in mind. First, there has been a great erosion of the rule of law in the United States, which for me is manifested mainly in the politicization of the judicial system. I don’t know if you have noticed, but it’s become common for news reports, when referring to a judge, to specify which president appointed that judge. I’ve been in this country for almost 40 years, and that’s a noticeable change; it didn’t happen much before.
I also think that, particularly over the last four years, there have been a lot of public attempts to undermine judicial decision-making, which was once seen as almost sacred here. I mention all this because having a reliable judicial system is important when you are advocating prosecutions, and I think that the state of the judicial system in this country has declined tremendously. The erosion is both systematic and involves the way the people view the judiciary.
JT: Does that change in perception increase the importance of prosecuting Trump, since it would help fight back against the erosion of these norms?
PD: It would do that, but the erosion of norms also makes a trial more complicated. Because once the credibility of judicial decision-making has been eroded, putting on a trial of a very popular former head of state puts lots of pressure on the system, and I’m not sure it’s a pressure that the system can bear.
JT: Let’s dig into that. Are there examples of countries where the failure to hold prosecutions for crimes committed by leaders in office held those countries back, undermined their democracies, or kept them from making progress?
PD: The failure to prosecute a head of state tends to reaffirm the view that the law is only for some, rather than for everyone, and it entrenches freewheeling behavior and corruption by the elites.
JT: What’s a good example where that happened?
PD: Think about Central America. In Guatemala, you had a trial process created and supported by the United Nations that gave investigatory and prosecutorial support to the local courts. In many ways, it was a huge success. It managed to prosecute an acting head of state and an acting vice president for grand corruption. It introduced important new skills into the Guatemalan judiciary that made all these things feasible. Whereas before they would have been unthinkable.
And they were unthinkable in El Salvador and Honduras. In those countries, you see continued cycles of violence, people taking the law into their own hands, and unaccountable private security firms outnumbering public safety services, meaning that only the wealthy have some modicum of security.
I think the basic point to emphasize is that countries that have failed to do anything to prosecute former leaders who broke the law still suffer from impunity and a lack of respect for the rule of law.
JT: Even when an accountability process works, there can be downsides. In the case of Trump, there are legitimate fears that holding a trial would keep him in the spotlight, for example. How do you weigh the pros versus the cons?
PD: One thing I always keep in mind is institutional capacity. It’s not good enough to call for prosecutions when there is no possibility of holding a fair trial. And the failure of a big trial would be a big blow to the country’s legal institutions—like, for example, the failure of Trump’s impeachment in the United States.
Consider the case of El Salvador. After its civil war, the U.N. established and ran a truth commission there, which did not ultimately recommend prosecutions. Not because it didn’t find evidence of wrongdoing. It found plenty of evidence: The commission compiled a list of more than 110 military officers who seemed to have been responsible for gross human rights violations. But it didn’t recommend prosecutions because it did not trust that the Salvadoran judicial system could have withstood the pressure of holding trials or could have actually provided justice. If, with big bombast, you put someone on the dock and then fail to prove any charges against them, you weaken, rather than strengthen, the judicial system.
JT: Say more about the kinds of pressures you have to be ready to deal with if you do hold a trial.
PD: There are enormous pressures, which is one reason why most countries end up waiting a few years before seeking accountability. The timing makes a difference. It would be one thing to try to prosecute Trump in two weeks. It would be an entirely different proposition to go through a very deliberate, careful process of gathering evidence, interviewing witnesses, taking statements, and then, in three years, launching a prosecution. The temporal dimension is extraordinarily important because in three years the political situation may be different; polarization may be much lower. Trump may seem much less attractive because someone else in the Republican Party has taken his role. Republicans may collectively decide they’re going to stop hitching their fate to this guy, as they have done up to this point.
That is what happened with Ríos Montt in Guatemala. By the time he was tried, the rest of the Guatemalan elite had said, “OK, enough of this,” which opened up possibilities for prosecution that had not been present earlier.
JT: One of the arguments made against prosecuting Trump is that such prosecutions are a hallmark of weak democracies, not strong ones—that only in authoritarian or semi-authoritarian regimes do leaders prosecute their predecessors.
PD: There’s a huge confusion here between the settling of scores for purely political reasons and the very serious use of judicial investigations, prosecutions, and punishment to address crimes that have been committed. The former is objectionable. The latter is not only not objectionable; it is in fact the mark of a strong democracy. Strong democracies prosecute people whenever a crime has been committed, without selectivity, without thinking about questions of status, etc.
JT: Based on your experience, what advice would you give U.S. authorities and the Biden administration about how to handle Trump’s alleged crimes? Especially given the understandable temptation to do whatever is possible to just make him go away, to get him out of the spotlight.
PD: I share the desire to never hear from him again, but I don’t think that the judiciary should be used for political purposes. The judiciary should be used to carefully, meticulously, and with total objectivity and neutrality investigate crimes that Trump may have committed. In the end, from my standpoint, what’s more important than individual cases of rule-breaking is systematic rule-breaking. That is what erodes social coexistence.
JT: But what does that mean for Trump himself? Should he be prosecuted, especially given the assault on the Capitol?
PD: Yes. But I don’t think that targeting Trump alone would be sufficient and should be the sole objective here. There are patterns of abuse that involve others as well. Getting rid of Trump alone would be insufficient to restore faith in the U.S. justice system. Criminal investigations, prosecutions, and sentencing are important, but real justice involves more than those things alone. It requires a much broader strategy, one that complements criminal justice with other policies intended to get at root of some of the underlying problems that led to the rise of Trump in the first place.