Argument

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Taiwan Showed How to Prosecute an Ex-President

The trial of Chen Shui-bian strengthened democracy, despite fears of division.

Taiwan's former President Chen Shui-bian arrives at the High Court in Taipei on July 19, 2010.
Taiwan's former President Chen Shui-bian arrives at the High Court in Taipei on July 19, 2010. WOO SWEE-KAY/AFP VIA GETTY IMAGES

Six months after the Trump administration ended, new evidence of potential crimes is emerging every day, from the former U.S. president trying to strong-arm the Justice Department into backing his attempt to overturn the election to his numerous and dubious business ties. And yet President Joe Biden has shown aversion toward focusing on the potential crimes committed by his predecessor, instead focusing on building national unity. But Taiwan’s example suggests Biden could be making a grave mistake. Not only did the trial of former Taiwanese President Chen Shui-bian not deepen Taiwan’s polarization, but it actually strengthened the country’s democratic processes and eased his party’s inevitable task of moving on from him.

In 2006, when Chen was still in power, Wu Shu-chen, his wife, went on trial over corruption and forgery charges. The intrigue was hardly limited to the moment when, during her first court appearance, Wu dramatically fainted in court. It was already a landmark moment for the young democracy, which had held its first presidential election just 10 years prior, and the world watched how Taiwan would handle its decision to prosecute the president’s wife.

Among the curious were a group of law professors from a country known for anything but radical democracy: China. “This was fascinating [to them], watching as Taiwan’s first lady was in court,” said Margaret Lewis, a law professor at Seton Hall University who attended Wu’s first trial hearing with the Chinese professors. “Talk about stepping through the looking glass.”

Six months after the Trump administration ended, new evidence of potential crimes is emerging every day, from the former U.S. president trying to strong-arm the Justice Department into backing his attempt to overturn the election to his numerous and dubious business ties. And yet President Joe Biden has shown aversion toward focusing on the potential crimes committed by his predecessor, instead focusing on building national unity. But Taiwan’s example suggests Biden could be making a grave mistake. Not only did the trial of former Taiwanese President Chen Shui-bian not deepen Taiwan’s polarization, but it actually strengthened the country’s democratic processes and eased his party’s inevitable task of moving on from him.

In 2006, when Chen was still in power, Wu Shu-chen, his wife, went on trial over corruption and forgery charges. The intrigue was hardly limited to the moment when, during her first court appearance, Wu dramatically fainted in court. It was already a landmark moment for the young democracy, which had held its first presidential election just 10 years prior, and the world watched how Taiwan would handle its decision to prosecute the president’s wife.

Among the curious were a group of law professors from a country known for anything but radical democracy: China. “This was fascinating [to them], watching as Taiwan’s first lady was in court,” said Margaret Lewis, a law professor at Seton Hall University who attended Wu’s first trial hearing with the Chinese professors. “Talk about stepping through the looking glass.”

Wu’s wife, along with corruption probes targeting Chen’s son-in-law and officials in his administration, tainted the Chen presidency with the stain of familial corruption. Chen, protected by presidential immunity, refused to resign despite being trailed by allegations of bribery and money laundering. He maintained his innocence even after being indicted months after leaving office in 2008. Chen and Wu were both sentenced to life in prison in 2009, although the sentences were reduced on appeal and both later received medical parole. Chen’s successor, Ma Ying-jeou of the Kuomintang (KMT), left office in 2016 and has faced myriad criminal cases ever since.

The prosecutions of both ex-presidents ran the risk of leading Taiwanese democracy into political instability and revenge while deepening existing divisions in a country already shadowed by the existential threat of the neighboring Chinese government. Amazingly, none of that happened.

“For a country to have rule of law, one aspect that’s pivotal is confidence that if a leader violates the law, they will be subject to the law as any citizen would,” Lewis said. This aspect has created a lever of accountability in Taiwan that would leave former U.S. President Donald Trump and his family—accustomed to treating the presidency as a halo of impunity—running for the hills.

Taiwan knew that charging Chen with crimes entailed handling a political powder keg. He was the first president ever elected from the Democratic Progressive Party (DPP), which formed in opposition to the KMT’s decades of rule under martial law and positioned itself as an anti-corruption party in the 1990s. For the KMT, prosecuting Chen and his wife risked making the party look as if it wanted to embrace its roots in authoritarian one-party rule by eliminating its only serious opposition.

Chen and his supporters seized on this, claiming he was a victim of political persecution—a strategy that has become a keystone of the Republican Party, especially Trump’s core supporters, as they face investigation of the Jan. 6 attack on the Capitol. Like Trump’s supporters, Chen’s loyal followers were at risk of losing faith in Taiwan’s democracy and judicial independence, facts and evidence be damned—exactly what Biden fears from Republicans today.

But Taiwan avoided crisis. There are Chen loyalists who, to this day, swear the ex-president was innocent or, in a stroke of misogyny, blame his wife for his crimes. But they have largely been exiled to the fringes of Taiwan’s politics.

The DPP did return to power in 2016 after President Tsai Ing-wen won office—and won reelection in a landslide four years later—by disassociating herself from Chen and his political faction during her campaign. The party itself endured plenty of infighting but ultimately coalesced around its core values—autonomy from Beijing, eventual independence, and socially liberal policy—much to the dismay of Chinese leadership, who had hoped Chen’s downfall would increase momentum for unification. Chen himself attempted a political comeback before retiring from politics in 2020 after his small party failed to win any legislative seats.

“Taiwan was then and still is bitterly divided between DPP and KMT, just as [the United States is] bitterly divided,” said Jerome A. Cohen, a law professor at New York University who formerly taught Chen’s successor Ma and Annette Lu, who served as vice president under Chen. “But DPP supporters knew this was not a political vendetta based on different views. This was corruption. This was money corrupting the regime.”

Taiwan prosecuted its ex-presidents differently than the United States would prosecute Trump. Taiwanese trials can take years to complete, in large part because prosecutors are allowed to appeal a not guilty verdict. There are no jury trials; most cases are overseen by panels of long-serving judges picked by a well-established merit-based process. As judges are not appointed by a partisan political process, it’s hard for any accusations of judicial partiality to stick.

There were heated debates over how the judges for Chen’s trial would be selected, Cohen noted. One event led to a severe backlash: A prosecutor, mocking Chen’s famous claim of “political persecution” upon his arrest, held her wrists over her head to mirror his pose and yelled “judicial persecution” during a skit performed for judges and prosecutors. Many Taiwanese, even those who believed Chen was guilty, were angered at how the former president was treated while in detention.

Some in the DPP feared at the time that prosecuting Chen would create a precedent for charging future former presidents with crimes—something usually associated with unstable democracies. Ma’s own legal cases are still ongoing, five years after he left office. Experts do not agree on the merits of every case brought against Ma, but there are no calls for immunity in Taiwan for former presidents. If any precedent has been set, it is that leaders are accountable to the public will, regardless of popularity or policy.

The United States, Cohen said, would be wise to focus on the financial corruption of Trump and his family to keep a criminal trial from becoming overtly politicized. Drama may be inevitable—but in Taiwan, even the most dramatic of judicial spectacles resulted not in debilitating political disunity but in justice. “Prosecuting an ex-president,” Cohen said, “who was so corrupt, his family was corrupt, was the right thing to do for supporting democracy.”

Nick Aspinwall is a journalist based in Taipei and an editor-at-large at Ketagalan Media. Twitter: @Nick1Aspinwall

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