Donald J. Trump made history as the first U.S. president, current or former, to be charged and also convicted of a crime. Some in the United States are hoping that the successful prosecution of former President Trump will signal a transition away from the autocratic leanings of his administration and towards a more democratic future in the United States.
Others warn of the grave political consequences that might come with prosecuting former heads of state. Doing so, they allege, might invite future trials against opposition rivals, which would politicize the courts and place democracy in further jeopardy.
Such concerns are typified by a question raised by Justice Samuel Alito who, during the oral argument in Trump v. United States (the presidential immunity case), asked whether the prosecution of political leaders like Trump will “lead us into a cycle that destabilizes the functioning of our country as a democracy.” But is there any evidence to justify fear of this slippery slope?
While prosecuting former political leaders is new to the U.S., over the last couple of decades, the practice has become increasingly common in other parts of the world. For example, in Guatemala’s last presidential election, two of the front-runners were implicated in prosecutions for serious crimes. In an unexpected turn of events, an anti-corruption candidate, Bernardo Arévalo, pulled ahead, ultimately winning the election and ushering in what some are calling a new "democratic spring" in Guatemala.
Since recent polls suggest that Trump’s conviction could cost him the presidential election, are events in Guatemala a precursor of what's to come in November?
Using the most complete global database on prosecutions of government officials for human rights violations, we’ve addressed a question on many people’s minds: Has the prosecution of former heads of state around the globe led to more democratic outcomes? Interestingly, our research reveals a paradox: Criminal prosecutions are associated with both pro-democratic and anti-democratic outcomes.
On one hand, they do seem to encourage political engagement measured by pro-democratic demonstrations and greater participation in civil society. On the other, criminal punishment can galvanize anti-democratic behavior as well, increasing polarization.
Again, Guatemala, one of the countries in our dataset, illustrates how this paradox plays out in practice. There, when former President Perez Molina was implicated in corruption, the Guatemalan public mobilized in mass protest ultimately forcing his resignation.
Also, in the most recent presidential election in Guatemala, the electorate sidelined one of the run-off candidates in part because she had been charged with crimes associated with corruption. In a sense, these charges cleared the path for pro-democratic President Arévalo to assume office.
Still, criminal punishment has been a double-edged sword. As the election and then later the inauguration of Arévalo drew closer, a coalition of anti-democratic forces weaponized the courts, turning the criminal apparatus against him and his supporters. This nearly derailed democracy in Guatemala. The frequent chants of “lock her up” at Trump rallies might foreshadow a similar backlash here.
Still, we also found that the negative effects that often garner the most attention are red herrings. Counter to Justice Alito's warning, there is little evidence that criminal prosecutions cause losing parties to dig in their heels and refuse to accept defeat in elections. In addition, our study suggests that, on average, prosecutions of political leaders neither weaken judicial independence nor endanger free and fair elections.
As the Supreme Court weighs whether U.S. presidents should have immunity from criminal prosecution for conduct stemming from official acts during their tenure in office, we hope that this decision will be based on evidence, not on hypothetical and unsubstantiated fears.
Rachel López is an associate professor of law at the Thomas R. Kline School of Law at Drexel University and fellow in the Program in Law and Public Policy at Princeton University. Geoff Dancy is an associate professor in the Department of Political Science at the University of Toronto, Canada.
