When Donald Trump this week became the first serving or former United States president to face criminal charges, what was at stake was not only his political future but something more fundamental – namely the rule of law.
Understandably, much of the current focus is on the question of Trump’s political future and whether it will be helped or hindered by his prosecution. A deeper issue, of global relevance, however, is the role that the rule of law necessarily plays in any democracy.
Even under totalitarian or autocratic regimes, the law has a part to play in relation to day-to-day crimes that have no political dimension. In such countries, however, people can also be arbitrarily imprisoned, including for peacefully asserting their views.
In recent months, for example, thousands have been detained in Russia for voicing opposition to Putin’s invasion of Ukraine and in Iran for peacefully asserting the rudimentary rights of half of its population.
In contrast, in a democracy, the law is a necessary defence – not of the regime in power but of democracy itself. Precisely because of the independence of the US courts, the outcome of this week’s prosecution of Trump remains, as it should in any democracy, in the hands of those courts.
Irrespective of the outcome, what is important, as in any democracy, is that the law should be seen to apply despite any political intimidation, such as Trump’s irresponsible criticism this week of the judge and his family.
Two of the other separate charges being considered against Trump make the link between democracy and the rule of law more explicit. Those further alleged crimes don’t merely relate, as the current prosecution does, to the principle that no one is above the law. They relate to two apparent attempts by Trump to undermine democracy itself.
First, after his defeat in the 2020 Presidential election, he made repeated efforts to persuade Georgia state officials to overturn the democratic outcome of the election in that state, including an infamous call to one official pressing him to “find” 11,000 votes. Second, he faces potential federal charges in relation to his role in the violent attack in January 2021 on the US Capitol, the very citadel of US democracy.
Trump made clear his general attitude to democracy and the rule of law as early as 2016 when he refused to say in advance that he would accept the outcome of that year’s presidential election. His encouragement to his supporters in 2016 to chant “lock her up”, in reference to his opponent Hillary Clinton, could be said to prefigure exquisitely his own current predicament were it not for fact that earlier chant was aimed not at applying due process to a specific crime but, rather, at stirring up a political lynch mob.
In many other countries around the world today, it is disturbingly clear that the preservation of democracy similarly requires the rule of law, including the independence of the judiciary, to be upheld.
Perhaps there is no more obvious example than Israel, where prime minister Binyamin Netanyahu has put forward a proposal to eviscerate the Israeli courts, including a provision that would allow a simple majority in parliament to override court decisions. It is hardly surprising that Israelis have demonstrated in such large numbers to protect their democracy. It is the rule of law that ultimately prevents the rule of the mob.
Prime minister Victor Orban of Hungary is another example of someone aiming to undermine his country’s democracy, including by exerting government control over the courts. Fortunately, the European Union recognizes the indivisibility of democracy and the rule of law – two of the very foundation stones on which the EU itself is built.
It has begun, somewhat belatedly, to flex its legal and financial muscle in the direction of Budapest, as well as towards Warsaw where similar challenges have arisen. The EU will, moreover, insist that the application of EU law is part of our European democracy and that the ultimate arbiter of that law remains the European Court of Justice.
In Ireland, we are, in Shakespeare’s words, “twice blessed”. First, we should be proud that the Irish courts, which guarantee our democracy and our individual rights, remain strong and independent. We should also be reassured that the rule of law, including the role of our judiciary, is generally respected by Government, in parliament and by the public.
Second, in a world with so many autocracies and democracies endangered by populism – including the risk of Trump’s return to office and conceivably Johnson’s in the UK – we can count ourselves fortunate to be part of a democratic European Union based firmly on respect for domestic, European and international law.
As we observe Trump’s trial in Manhattan, our cry should not be “lock him up” but rather “examine the evidence”.
Bobby McDonagh is a former ambassador to London, Brussels and Rome