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Taiwan showed how to prosecute an ex-president

Six months after the Trump administration ended, new evidence of potential crimes is surfacing every day, from the former US president trying to bolster the Justice Department to his numerous and dubious business relationships in support of his attempt at the election overthrow. Yet President Joe Biden has shown reluctance to focus on his predecessor's potential crimes rather than focus on building national unity. But Taiwan's example suggests that Biden could make a grave mistake. The trial of former Taiwan President Chen Shui-bian not only failed to deepen Taiwan's polarization, it also strengthened the country's democratic processes and eased the inevitable task of his party to move away from him.

In 2006, when Chen was still in power, his wife Wu Shu-chen was on trial on charges of corruption and forgery. The intrigue was hardly limited to the moment when Wu fainted dramatically on her first appearance in court. It was already a milestone for the fledgling democracy, which had held its first presidential election just ten years earlier, and the world was watching how Taiwan handled its decision to prosecute the president's wife.

Six months after the Trump administration ended, new evidence of potential crimes is surfacing every day, from the former US president trying to bolster the Justice Department to his numerous and dubious business relationships in support of his attempt at the election overthrow. Yet President Joe Biden has shown reluctance to focus on his predecessor's potential crimes rather than focus on building national unity. But Taiwan's example suggests that Biden could make a grave mistake. The trial of former Taiwan President Chen Shui-bian not only failed to deepen Taiwan's polarization, it also strengthened the country's democratic processes and eased the inevitable task of his party to move away from him.

In 2006, when Chen was still in power, his wife Wu Shu-chen was on trial on charges of corruption and forgery. The intrigue was hardly limited to the moment when Wu fainted dramatically on her first appearance in court. It was already a milestone for the fledgling democracy, which had held its first presidential election just ten years earlier, and the world was watching how Taiwan handled its decision to prosecute the president's wife.

Among the curious was a group of law professors from a country known for anything but radical democracy: China. "It was fascinating (for her) to watch Taiwan's first lady stand trial," said Margaret Lewis, a law professor at Seton Hall University who attended Wu's first trial with the Chinese professors. "Talk about stepping through the mirror."

Wu's wife, along with corruption investigations into Chen's son-in-law and officials in his government, has tainted Chen's presidency with family corruption. Chen, who is protected by the president's immunity, refused to resign despite being pursued on allegations of bribery and money laundering. He protested his innocence even after being charged months after leaving office in 2008. Chen and Wu were both sentenced to life imprisonment in 2009, although sentences were reduced on appeal and both were later medically paroled. Chen's Kuomintang (KMT) successor, Ma Ying-jeou, resigned in 2016 and has since faced countless criminal cases.

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

"For a country to have the rule of law, one critical aspect is trust that if a leader breaks the law, he will be subject to the law, as any citizen would," said Lewis. This aspect has created a lever of accountability in Taiwan that has sent former US President Donald Trump and his family – used to treating the presidency as a halo of impunity – to the mountains.

Taiwan knew Chen's charge of crimes involved handling a political powder keg. He was the first elected president of the Democratic Progressive Party (DPP), which formed against the decades-long rule of the KMT under martial law and positioned itself as an anti-corruption party in the 1990s. For the KMT, Chen and his wife's indictment risked making the party look like it was embracing its roots in authoritarian one-party rule by eliminating its only serious opposition.

Chen and his supporters picked up on this, claiming he was a victim of political persecution – a strategy that has become a cornerstone of the Republican Party, particularly Trump's core supporters, as they face the investigation into the January 6 attack on the Capitol are. Like Trump's supporters, Chen's loyal supporters threatened to lose faith in Taiwan's democracy and judicial independence, the facts and evidence are doomed – exactly what Biden fears of the Republicans today.

But Taiwan avoided a crisis. There are Chen loyalists who to this day swear the ex-presidents are innocent or blame his wife for his crimes out of misogyny. But they have for the most part been relegated to the margins of Taiwanese politics.

The DPP returned to power in 2016 after President Tsai Ing-wen won the office – and was landslide re-elected four years later – by distancing itself from Chen and his political group during her election campaign. The party itself endured many power struggles but ultimately closed around its core values ​​- autonomy from Beijing, ultimate independence, and social liberal policies – much to the horror of the Chinese leadership, who had hoped that Chen's overthrow would add momentum to the unification. Chen himself attempted a political comeback before retiring from politics in 2020 after his small party failed to win seats in the legislature.

"Taiwan was and is still bitterly divided between the DPP and KMT, just as (the United States) is bitterly divided," said Jerome A. Cohen, law professor at New York University who previously taught Chen's successor Ma and Annette Lu. who served as vice president under Chen. “But DPP supporters knew that this was not a political campaign of revenge based on different views. That was corruption. That was money that corrupted the regime. "

Taiwan has prosecuted its ex-presidents differently than the US Trump. Taiwan trials can take years, in large part because prosecutors can appeal an innocent verdict. There are no juries; most cases are overseen by panels of senior judges selected through an established, performance-based process. Since judges are not appointed through a party-political process, it is difficult to uphold the charge of judicial partiality.

There was heated debate over how the judges should be selected for Chen's trial, Cohen noted. One event sparked a violent backlash: A prosecutor, who mocked Chen's famous allegation of "political persecution" when he was arrested, put her wrists over her head to reflect his demeanor and yelled "prosecution" during a skit designed for judges and prosecutors was listed. Many Taiwanese, even those who found Chen guilty, were upset by the way the former president was treated in detention.

Some in the DPP at the time feared that the prosecution of Chen would set a precedent to prosecute future former presidents for crimes – something usually associated with unstable democracies. Ma's own litigation is still ongoing five years after he left office. Experts disagree on every case brought against Ma, but there are no claims for immunity in Taiwan for former presidents. If a precedent has been set, it is for leaders to be accountable to the public will, regardless of popularity or politics.

The United States, Cohen said, is wise to focus on the financial corruption of Trump and his family to keep a criminal case from being openly politicized. Drama may be inevitable – but in Taiwan, even the most dramatic legal spectacle resulted not in debilitating political disagreement, but in justice. "Pursuing an ex-president," said Cohen, "who was so corrupt, his family was corrupt, was the right thing to do to support democracy."

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