# Response to Jack Goldsmith: Trump's Indictment in Global Context September 06, 2023 - [ Blog ](/taxonomy/term/23096) Jack Goldsmith, in his guest essay in the New York Times on August 8th, argued that the prosecution of Trump for criminal actions in connection to the 2020 presidential election “may have terrible consequences” for the US legal and political system. Goldsmith makes an entirely counterfactual argument without mentioning once that many other countries have prosecuted their current and former heads of state without the dire consequences Goldsmith predicts for the United States. He infers that the US legal and political system is far more fragile than those of other countries, including other advanced democracies like France, Japan, and Italy, as well as more recently democratized countries like South Korea, Taiwan, Brazil, Argentina, and South Africa, all of which have managed to prosecute their former heads of state. This is the first time that a current or former US President has faced criminal charges, but it has become more common elsewhere in the world. Until the end of the Cold War, it was very rare for heads of state to be prosecuted. My research team has produced a data set of prosecutions of government officials, including presidents and former presidents around the world, finding that such trials have increased since the 1990s. Since that time many democracies, in particular, [have prosecuted former leaders.](https://www.nytimes.com/2023/03/31/world/trump-world-leaders-indicted.html) including former French Presidents Jacques Chirac and Nicolas Sarkozy, Silvio Berlusconi of Italy, the former Prime Minister Kakuei Tanaka of Japan. While these prosecutions were difficult and also faced accusations of partisan interference, they did not produce “terrible consequences” for these countries. The United States is actually much more lenient than many countries that prosecute their heads of state by allowing candidates facing criminal prosecution to continue to run for office, even from prison, as Socialist Party candidate Eugene Debs famously did in 1920, after being convicted and imprisoned for speaking out against the draft during World War I. Other countries in the world have rules that disqualify anyone under indictment from participating in elections. One reason former President Jair Bolsonaro’s prosecution has been so important is because he is now disqualified from being a political candidate in any election in Brazil for the next 8 years. Bolsonaro’s case is not an outlier. Forty percent of Latin American presidents and ex-presidents indicted for corruption were formally disqualified from participating in elections. Because Trump can continue to run for office and campaign actively, albeit with the disruption of court appearances, the cost of a prosecution for him is far lower and may even contribute to energizing his base. The most damning part of Goldstein’s argument is that the Trump prosecution appears to be driven by political motivations. The most comprehensive and systematic study of accusations of political interference in prosecutions of former presidents was recently published by Argentine Professor Catalina Smulovitz. Looking at 57 presidents and former presidents in Latin America who have faced legal accusations for corruption alone, Smulovitz finds that most of them said their legal complaint was politically motivated. But a deeper look at the cases revealed that this was not due to changes in the way legal systems handled these cases, but to the kinds of rhetoric political leaders and parties now routinely use about their legal system. It seems likely that this is the case in the United States as well. The US Justice system does not always have full independence from the executive (witness the case of Eugene Debs). There is no doubt that accusation of partisan motivations will continue to plague these Trump prosecutions. That is not a good enough reason for the justice system to fail in its duty to hold all people, including former Presidents, to the rule of law. The US legal and political system is far more resilient than Goldstein recognizes and has withstood challenges in the past. Luis Moreno Ocampo, former prosecutor of the International Criminal Court, once told me that he first started to admire the US judicial system during the Watergate scandal because it showed that no one, not even a President, is above the law. Whatever happens in the Trump prosecutions, the most serious consequence would be for people in this country and abroad to think that the US no longer stands up for this most important tenet of rule of law: that it applies to everyone. Share on:- [ Facebook ](#) - [ Twitter ](#) - [ Linkedin ](#)