For almost as long as Donald Trump was President, Americans have debated whether or not he should be prosecuted for the various crimes he may have committed while in office. That debate intensified on Saturday when Trump called Georgian Foreign Secretary Brad Raffensperger and appeared to threaten him unless he had an additional 11,000 votes for president. Then came the Wednesday mass attack on Capitol Hill that Trump instigated so much.
Proponents of law enforcement or indictment against Trump make strong arguments, but so do those who believe the country should just move on. This makes choosing the right answer difficult – especially since neither side used a lot of data to take a case. But the evidence is out there. Jonathan Tepperman, the editor-in-chief of foreign affairs, spoke on Wednesday with Pablo de Greiff, who served as the first UN special rapporteur for the U.S. from 2012 to 2018, promoting truth, justice, reparation and guarantees of non-recurrence. Your conversation has been edited for length and clarity.
Jonathan Tepperman: The strongest and most fundamental argument made by law enforcement advocates is that the United States is a land of law and must do everything possible to show that no one is above those laws. Prosecutor opponents argue that a trial could turn Trump into a martyr, further strengthen his base, raise even more money, and encourage him to run for office 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 law enforcement is working? And what metrics should we use to judge whether these cases were good or bad for the countries involved?
Pablo de Greiff: First of all, it makes a huge difference what you would prosecute a former leader for. It is not an abstract debate about impunity or law enforcement. It should be a precise debate about specific charges and the consequences of prosecution.
How to measure law enforcement effectiveness when it comes to issues like the rule of law is very difficult to come up with metrics. It is difficult to determine whether an individual incident will affect rule violations in the future.
Now I think there is an argument about the importance of ensuring that legal systems signal that no one is above the law. For example, the persecution of the former President of Guatemala, Efraín Ríos Montt, was very important as all Guatemalans saw that he was forced to go to a court and a judge who repeatedly told him, “No, you are not your turn to speak. No, you can't address me like that. No, you can't say that. “Scenes like this alone were extremely important for a country like Guatemala.
When deciding whether to prosecute Trump, I think two important 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 manifests itself primarily in the politicization of the judicial system. I don't know if you noticed, but it is common for news reports, when referring to a judge, for news reports to state which president appointed that judge. I've been in this country for almost 40 years and it's a noticeable change. not much has happened before.
I also think there have been many public attempts, particularly in the last four years, to undermine decision-making in the judiciary, which was once considered almost sacred here. I mention all of this because a reliable judicial system is important if you are to campaign for law enforcement, and I think the state of the judicial system in this country has deteriorated tremendously. The erosion is both systematic and involves people's view of justice.
JT: Does this change in perception add to the importance of Trump's law enforcement as it would help combat the erosion of these norms?
PD: It would do that, but the erosion of norms also complicates a process. Because once the credibility of the judicial decision-making wears off, a lawsuit against a very popular former head of state will put a lot of pressure on the system, and I'm not sure it's pressure the system can take.
JT: Let's examine that. Are there any examples of countries where failure to prosecute crimes committed by incumbent leaders held them back, undermined their democracies, or prevented them from moving forward?
PD: Failure to prosecute a head of state tends to reinforce the view that the law applies to some, not all, and it anchors free-running behavior and corruption among elites.
JT: What's a good example of where this happened?
PD: Think of Central America. In Guatemala, the United Nations established and supported a judicial process to assist local courts in investigating and prosecuting. In many ways it was a huge success. She succeeded in prosecuting an incumbent head of state and an incumbent vice president for serious corruption. It introduced important new skills to the Guatemalan judiciary that made all of these things possible. While they would have been unthinkable before.
And they were unthinkable in El Salvador and Honduras. There are persistent cycles of violence in these countries, people taking the law into their own hands, and unaccountable private security firms that are outnumbered by public security services, meaning that only the wealthy have some level of security.
I think the fundamental point that needs to be made is that countries that have not done anything to prosecute former leaders who have broken 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 Trump's case, there are legitimate fears that legal proceedings, for example, would keep him in the spotlight. How do you weigh the pros and cons?
PD: One thing I keep thinking about is institutional capacity. It is not good enough to get a prosecution if there is no opportunity for a fair trial. And the failure of a major process would be a severe blow to the country's legal institutions – such as the failure of Trump's impeachment in the United States.
Look at the case of El Salvador. After its Civil War, the United States established and directed a truth commission there that ultimately did not recommend prosecution. Not because there was no evidence of wrongdoing. Much evidence was found: the commission compiled a list of more than 110 military officers believed to be responsible for serious human rights violations. However, she did not recommend prosecution because she did not trust that the Salvadoran judicial system could withstand pressures to hold trials or that it could actually have ensured justice. If you put someone on the dock with a major bombing and then don't bring charges against them, you weaken the judicial system instead of strengthening it.
JT: Share more about the types of pressures you will face when holding a trial.
PD: There is tremendous pressure, which is one reason most countries have to wait a few years before moving to accountability. The timing makes a difference. It would be one thing to prosecute Trump in two weeks. It would be a very different proposition to go through a very deliberate and careful process of gathering evidence, interviewing witnesses, making statements, and then starting a prosecution in three years. The time dimension is extremely important because in three years the political situation can be different; The polarization can be much lower. Trump seems a lot less attractive because someone else has taken on his role in the Republican Party. Republicans could collectively decide that they will stop associating their fate with this guy as they have until now.
That happened to Ríos Montt in Guatemala. When he was tried, the rest of the Guatemalan elite had said, "OK, enough of this," which opened up opportunities for law enforcement that were previously nonexistent.
JT: One of the arguments against prosecuting Trump is that such law enforcement is a hallmark of weak and not strong democracies – that leaders only prosecute their predecessors in authoritarian or semi-authoritarian regimes.
PD: There is a lot of confusion here between billing scores for purely political reasons and using judicial investigation, law enforcement and punishment very seriously to combat crimes committed. The former is objectionable. The latter is not only unobjectionable; it is indeed the sign of a strong democracy. Strong democracies always persecute people when a crime has been committed, without selectivity, without thinking about status issues etc.
JT: Based on your experience, what advice would you give the US authorities and the Biden administration on how to deal with Trump's alleged crimes? Especially given the understandable temptation to do everything possible just to make him disappear and get him out of the spotlight.
PD: I share the wish never to 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 investigate crimes Trump may have committed, and with complete objectivity and neutrality. Ultimately, from my point of view, a systematic rule violation is more important than individual cases of rule violations. That undermines social coexistence.
JT: But what does that mean for Trump himself? Should he be prosecuted, especially in the face of the attack on the Capitol?
PD: Yes. However, I don't think that just aiming at Trump would be enough and that should be the only aim. There are patterns of abuse in which others are also involved. Getting rid of Trump alone would not be enough to restore confidence in the U.S. judicial system. Criminal Investigation, Law Enforcement, and Conviction are important, but real justice involves more than just these things. It requires a much broader strategy that complements the criminal justice system with other measures aimed at addressing some of the underlying problems that led to Trump's rise in the first place.