A Cautionary Example for Those Cheering the Trump Indictment Those cheering the Trump indictment should look to Latin America for a cautionary example. By Daniel Raisbeck
As Donald Trump faces indictment, many of his opponents are losing sight of a warning they issued in 2016. Then, Mr. Trump spoke of prosecuting Hillary Clinton and his supporters chanted “Lock her up!” Critics accused him of subverting a crucially important norm against political prosecution. They said that would be a dangerous turn, and they were right.
In much of Latin America, the use of the judicial apparatus as a means to sideline electoral opponents is part of the political culture. In a particularly egregious example, the autocratic Nicaraguan regime of Daniel Ortega arrested more than a dozen of his rivals just months before the November 2021 presidential election, many under treason charges created by a law Mr. Ortega’s government had enacted in December 2020.
Under international pressure—mainly from the U.S.—the regime released 222 political prisoners this February and had them flown to Washington. Under yet another treason law, however, they were stripped of their Nicaraguan citizenship and effectively expropriated.
Along with Nicaragua, political imprisonment is rampant in Latin America’s other full-blown autocracies, Venezuela and Cuba. These socialist regimes hold more than 250 and 750 dissidents, respectively, in arbitrary detention according to nongovernmental organizations Foro Penal and Justicia 11J. Like their sister regime in Managua, they often resort to the tactic of liberating political prisoners on specific occasions to obtain some short-term advantage.
Even among Latin America’s constitutional republics, the line that divides warranted legal punishment for abuse of power and outright political persecution is often hazy. A good example is Brazil. As recently as November 2019, the current president, Luiz Inácio “Lula” da Silva, was in prison after a conviction in the Odebrecht corruption scandal, a transnational bribes-for-contracts scheme. Brazil’s Supreme Court, however, ruled that Sérgio Moro, the judge who had convicted Mr. da Silva in 2017, had no jurisdiction over the former president’s case and was biased against him. (Mr. da Silva maintains his innocence.)
While the jurisdiction argument appeared to have set Mr. da Silva free on a technicality despite the evidence, the claim of Judge Moro’s bias was plausible, especially since he accepted the post of justice minister under President Jair Bolsonaro, a bête noire to Mr. da Silva and his Workers’ Party. Mr. Bolsonaro probably wouldn’t have been elected in 2018 had Mr. da Silva been free and able to run for president, and Mr. Bolsonaro lost re-election to Mr. da Silva last year.
On the other hand, Edson Fachin, the Supreme Court justice who exonerated Mr. da Silva, was hardly a paragon of political neutrality. In 2010 Mr. Fachin, then a law school professor, supported a manifesto that promoted the candidacy of Dilma Rousseff, Mr. da Silva’s chief of staff and successor as president, to ensure the continuity of Mr. da Silva’s political program. Ms. Rousseff then appointed Mr. Fachin to the Supreme Court in 2015.
Given all the politics surrounding his trial and appeals process, is Mr. da Silva, a former political prisoner, vindicated by a stroke of justice? Or was he simply lucky to slip through the cracks of Brazil’s legal system with the help of his ideological brethren? Since his most recent election margin was 50.9% to Mr. Bolsonaro’s 49.1%, it is unlikely that a large majority of Brazilians would vouch for either possibility.
Mr. da Silva wasn’t the only former president of Brazil to face legal problems in recent years. Ms. Rousseff was impeached in 2016 over allegedly violating budget laws, while her successor, Michel Temer, was arrested and held for four days in 2019 over corruption charges.
Such troubles, however, pale in comparison to those of Peru, a country that has had seven presidents in as many years amid a series of impeachment trials and other clashes between the executive and Congress.
As in Brazil, it was the Odebrecht scandal that set off Peru’s latest wave of political turbulence, which has seen three former presidents—Alejandro Toledo, Ollanta Humala and Pedro Pablo Kuczynski—charged with either receiving bribes or money laundering. Another former president, Alan García, committed suicide in 2019 as he faced his own Odebrecht-related corruption trial. Then there’s Alberto Fujimori, the 84-year-old former president who has been incarcerated since 2005. He was sentenced for corruption and human-rights abuses during his war against the Shining Path, a communist guerrilla group.
While observers tend to emphasize Peru’s recent governing chaos, which makes the average stint of a third-century Roman emperor seem like an exercise in political longevity, there is another side to the coin. With their ability to move against sitting or former presidents, the Peruvian Congress and courts have been true foils against executive overreach. Pedro Castillo, the winner of the 2021 presidential election for a Marxist-Leninist party, learned this the hard way. Last December, when blatant corruption within his inner circle brought him under congressional pressure, Mr. Castillo tried to dissolve Congress, declare a state of emergency and rule by decree. It was a self-coup without the support of the military. That afternoon, the Peruvian authorities arrested Mr. Castillo as he fled toward the Mexican Embassy.
In neighboring Colombia, presidents—whether sitting or former—have fared rather differently. The official narrative highlights the stability, with uninterrupted elections and completed four-year terms since 1958. Critics point to a corresponding impunity. In 1996 former President Ernesto Samper withstood a political trial against him in Congress, where his Liberal Party held a majority, even despite recorded conversations of a Cali drug cartel leader promising to donate money to his campaign. Mr. Samper denied the charges. Two years later, he finished his term in office as Colombia’s first president to have his U.S. visa revoked.
More recently, Odebrecht money entered the 2010 campaign of former president Juan Manuel Santos, but a House of Representatives committee and the National Electoral Council—both with a majority of members belonging to pro-Santos parties—shelved their investigations into the matter. In 2020, Alvaro Uribe, Mr. Santos’s predecessor, resigned from the Senate after the Supreme Court had ordered his house arrest in the midst of a witness-tampering investigation against him. As a civilian, his case passed to the office of the attorney general, whom former president Iván Duque, Mr. Uribe’s protégé, appointed in 2020. While his critics denounce Mr. Uribe’s legal strategy, supporters claim he is the target of a political witch hunt.
In Latin America, political persecution remains as varied as the landscape. If there’s an example for the U.S., it’s only a cautionary one.
Mr. Raisbeck is a policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity. He was a candidate for mayor of Bogota, Colombia, in 2015.
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