Ukraine War, September 11, 2022 (II): It’s quite simple, really–the taboo about prosecuting a fomer president


1) David A. Graham, “Trump Opened Pandora’s Prosecutorial Box; For centuries America has avoided seriously considering whether former presidents should ever be prosecuted. Now that luxury is gone, The Atlantic, September 11, 2022 (7:00 a.m. ET);

2) “Should Trump be indicted?” The Trenchant Observer, September 28, 2021.

Sometimes sophisticated minds can’t grasp the most obvious and simplest truths.

Graham describes the “taboo” about prosecuting a former president.

The issue is so blazingly simple that the mind boggles at the apparent inability of commentators to grasp it.

There should be no taboo against applying the law against those who violate it.

Only a moment’s analysis should make clear that there should not be any exception for ex-presidents, if we want to live in a democratic state governed by the rule of law.

What would be wrong would be to prosecute anyone including a former president on trumped-up charges, as occurs in authoritarian countries like Russia and China. Such action would constitute a fundamental breach of the rule of law.

At the same time failure to prosecute crimes by an ex-president or anyone else because of their political position would constitute an equally grave breach of the rule of law.

What part of this analysis are commentators unable to understand?

They seem to have it half right. They just left out the “trumped-up charges” or language from the taboo.

We need to ask more of our commentators than the mindless repetition of buzzwords. We should actually demand that they think.

It should not be that hard to determine if criminal charges are “trumped up” and politically motivated or not.

The way you do this is to present the evidence of a crime and of the guilt of tbe accused to a grand jury. If the grand jury returns an indictment, then you prosecute the defendant on the charges before a jury.

There should be no talk of a taboo here.

We’re only talking about the rule of law in a democratic state governed by law.

The Trenchant Observer

About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.