History teaches us few wider lessons. But there are rare exceptions. One of these is that for a nation to put its former leaders on trial is never straightforward. Although such cases are rare, when they do occur they frequently involve the pushing of pre-existing legal boundaries and the reshaping of constitutional norms and assumptions. The evolution of the doctrine of crimes against humanity after the Nuremberg trials in 1945 is the most significant modern example of this.
Both at the time they occur and subsequently, the arguments that surround trials of this kind are almost inescapably political to a significant degree. That was true of the trial and execution of Charles I in 1649, an event that divided England then; and some of those divisions of the 17th century can still be felt today. But it will unquestionably also be true of the trials of the former US president Donald Trump, of which the latest step is due to be taken in Atlanta on Thursday.
It is important to see that this stubborn political reality applies just as much in the Trump cases as in Charles I’s. In part, this is because many will go out of their way to deny it. Trump’s prosecutors – and many of his political critics – will undoubtedly argue that Trump is simply a defendant like any other, and that their cases are designed to show that no one, not even a former president and commander-in-chief, is above the law. They will be adamant that this is not a political trial, and that it is not Joe Biden’s revenge.
In some very fundamental senses, they are right about that. The law is not being altered in order to prosecute Trump. The investigations have followed long-established rules. The verdicts are not foregone conclusions. This is neither a witch-hunt nor a show trial. Yet, however true these points and however honourably such claims are made, they cannot be quite the whole story. The two cases are very different, yet in both 1649 and 2023, the indictments against the king and the president take a stand on behalf of a conception of the nation against a leader set on subverting it.
Four separate cases against Trump are now on course for trial. The first three sets of allegations cover: falsification of business records in the Stormy Daniels hush money case; withholding of classified federal documents in his Florida home; and attempting to prevent the US Congress from validating Biden’s 2020 election. This week’s case alleges that Trump tried to interfere with the counting and validation of Georgia’s vote for Biden. All four cases are due in court in the first half of 2024, before the presidential election in which Trump aims to be a candidate.
All of these cases also contain multiple allegations. Two – the Florida document cases and the US Congress case – will be heard in federal courts. The others have been brought at state level by New York and Georgia. All the charge sheets are extremely detailed. In the documents case, for instance, the indictment now stretches to 60 pages, with Trump facing 40 separate charges. In the 6 January case, the indictment stretches to another 45 pages, and centres on four separate charges.
Like it or not, though, these carefully crafted cases take the US into new legal territory. That is not simply because Trump is the first serving or former American president in the nation’s history to face criminal charges. Nor is it even because, being Trump and still running for office, he will treat the courtroom as a political platform. It is also because a large number of the charges, and the way in which the judges and juries will be asked to test them, relate umbilically to his roles as head of state and upholder of the constitution. These cases are a test of the constitution and, in the broadest sense, of the nation.
All of these points repeatedly echo aspects of cases from the past. The Trump cases are still, in the end, an attempt to hold a past leader to account and judge him for the way he handled his office. That was also what the cases against earlier rulers were ultimately about too. The indictments against Charles I for his “crimes and treasons” or against Louis XVI of France for having “plotted and formed a multitude of conspiracies to establish tyranny in destroying liberty” are maybe not a world away from those against Trump, after all. Nor is it a world away from the much more recent example of Marshal Philippe Pétain’s trial for treason after the liberation of France in 1945. Pétain was charged with treason for his role as head of the collapsing French government in 1940, when he signed an armistice with Hitler’s invaders, and then as head of the puppet Vichy regime that collaborated with the Germans until the allied victory in 1945. Pétain was tried and convicted in Paris that same summer. His death sentence was immediately commuted to life imprisonment by Charles de Gaulle.
As described in Julian Jackson’s masterly recent book, France on Trial, the Pétain case has many differences from those facing Trump, but also some similarities. Pétain was put on trial after a war, not an election. His was an unashamedly political trial. The jury was stacked against him, and the outcome a foregone conclusion. But at the same time it was also the trial of a nation, its recent history, its dilemmas and its sense of itself. It was, in the end, a moment of catharsis for postwar France. It was a trial that had to happen, and it was vitally important for the future of France that the former leader in the dock was not acquitted. For all the many differences between the two cases, the exact same applies to the US on the eve of the Trump trials.