No, not even a former president is above law

When Trump is arrested, he reportedly will be fingerprinted, photographed and possibly handcuffed. The question arises: Is it degrading for a democracy to prosecute a former leader?

By Nicholas Kristof

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Published: Fri 31 Mar 2023, 4:08 PM

Last updated: Thu 6 Apr 2023, 9:07 AM

In 1872, President Ulysses S. Grant was arrested by a police officer for speeding in his horse-drawn coach in Washington. The officer stuck out his hand to signal a stop, and Grant obeyed and then accompanied the officer to the police station.

Did that demean the presidency?

No, I’d say it was a beautiful tribute to democracy. What was unthinkable for the French Sun King, Louis XIV —“L’état, c’est moi” (“I am the state”) — is appropriate in a system of equality before the law.

A grand jury has voted to indict Donald Trump for hush-money payments to a porn star but that the indictment, for now, is under seal. There are legitimate questions about this particular prosecution, and while we don’t know details of the charges, after educated guesses, we wonder:

Should the first indictment of an ex-president be under a novel legal theory that could be rejected by a judge or a jury? What do we make of the doubts about this case even among those who have zero sympathy for Trump? Does District Attorney Alvin Bragg know what he’s doing?

None of us can be sure of the answers to these questions until we’ve seen the evidence presented at trial, and I worry that a failed prosecution might strengthen Trump. Yet I’d also worry — even more — about the message of impunity that would be sent if prosecutors averted their eyes because the suspect was a former president.

The former president’s fixer, Michael Cohen, was sentenced to three years in prison for doing Trump’s bidding, and a fundamental principle of justice is that if an agent is punished, then the principal should be as well. That is not always feasible, and it may be difficult to replicate what a federal prosecution achieved in Cohen’s case. But the aim should be justice, and this indictment honours that aim.

That’s particularly true because this is clearly a higher-stakes crime than a typical case of falsifying business records; the aim apparently was to affect the outcome of a presidential election, and that may have happened.

When Trump is arrested, he reportedly will be fingerprinted, photographed and possibly handcuffed. The question arises: Is it degrading for a democracy to prosecute a former leader?

The democracy that is most expert at arresting former leaders is South Korea, which has gone after five former presidents and which I have covered on and off since I was the Times bureau chief in Hong Kong in the 1980s.

One former president was sentenced to death in 1996 for his role in a massacre during the military dictatorship. His successor was sentenced to 17 years in prison for similar offenses.

Another former president killed himself in 2009 while under investigation in a corruption scandal. That president’s successor was sentenced to a total of 17 years in prison for corruption. And the next president, in office from 2013 to 2017, was sentenced to a total of 25 years in prison for crimes including bribery and abuse of power.

There were times when I thought this parade of prosecutions was a sign of political immaturity. Yet maybe I got it backward. Yes, South Korea in the 1990s was an immature democracy with a penchant for corruption — but those prosecutions helped make South Korean democracy more robust.

“It is not easy for Koreans to prosecute our former presidents,” said Jie-ae Sohn, a communications professor at Ewha Womans University in Seoul. “It is a painful process and one that we are not happy to show the rest of the world. Nevertheless, this process has made it crystal clear that the rule of law applies to everyone.”

“This process may be ugly,” Sohn added, “but we believe this strengthens our democracy and allows it to be more resilient.”

There is a counterargument that this is America’s moment for prosecutorial discretion to allow the country to recover and move on. As a teenager, I was outraged when President Gerald Ford preemptively pardoned former President Richard Nixon, yet over time I came to think that it was the right call and allowed the country to heal. Yet one difference is obvious: Nixon in 1974 was already completely discredited, ostracized and broken, while Trump denies any wrongdoing and is running again for the White House.

South Korea perhaps offers a model for promoting both the rule of law and healing. While former presidents there received tough sentences, they were all pardoned and released within one to four years.

It’s difficult at this stage for me to assess the strength of the Manhattan district attorney’s indictment against Trump, but I find inspiration in the words of William H. West, the police offer who arrested Grant for speeding. According to an account he gave many years later, reported in The Washington Post, he told Grant, “I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.”

That’s the majesty and dignity of our legal system at its best. And if a police officer in 1872 could hold out his hand and force the president’s speeding carriage to a stop, then we, too, should do what we can to uphold the magnificent principle of equality before the law.

This article originally appeared in The New York Times

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