For my enemies, no law

Not every court case is lawfare - the mainstream needs to buck up

Photo by Sasun Bughdaryan on Unsplash

Playing it straight appears to be the new contrarianism. It is an unusual quality of our age that stating basic, long-agreed premises of law or economics is now viewed to be somewhat outside the pale. We have entered, it seems an era of deference to the thin skins of populists.

This week we have already seen this pattern play out in issues from tariffs to the status of Greenland and now the fate of Marine Le Pen. In common, there appears to be a trend towards decrying what would have been incredibly conventional positions just a year ago as unfair or counterproductive.

Take Trump’s tariffs. Here the reality on the ground has clearly already moved markets and a number of US financial commentators, not least the Wall Street Journal editorial page, have come out fully against them. At the same time there is a cottage industry of ‘sanewashing’ the policies, including an execrable oped in the Financial Times from Jason Cummins, that presents a misunderstanding of VAT so egregious that if it was offered as accounting advice it would lead to decertification.

We are now in a world where the Trump administration is trying to present tariffs as an enormous tax cut, which is a bold interpretation of raising taxes on imports. Access to the White House requires nodding along with this Alice through the Looking Glass interpretation.

Or take the collected quotes of J D Vance, who enjoys lashing out at allies from Denmark to Ukraine, but gets into lengthy Twitter spats with anyone who has the temerity to question him.

But we are all used to this from the current US administration and I can’t imagine things will change in the near future. Many people wiser than me have noted the necessity for Keir Starmer to blithely ignore the nonsense and bad faith in order to keep relations between the UK and US as convivial as possible.

To use a somewhat appropriate analogy, it’s like getting through an incredibly awkward Thanksgiving dinner. And while it’s true that the dinner may end up giving everyone food poisoning, at least Uncle Don stayed all the way through without tipping over the table and storming out.

The special treatment for populists is not solely an American story in any case. Indeed in the last few days we have seen a new front of coddling open up with the trial of Marine Le Pen. As readers will likely know, Le Pen and her party aides were found guilty of expropriating funds dedicated to the European Parliament wing of her party the Rassemblement National (RN) and shifting them to pay national staff.

The consequences of the sentencing have been both custodial (there is a prison sentence though I suspect it will either be removed or turned into some form of home confinement) and political. The political part is that Le Pen has been banned from engaging in any political activity (other than to continue to serve as a member of parliament for her constituency until the next parliamentary election) for five years to apply immediately, regardless of appeal. And bluntly that means she cannot currently run for the Presidential candidacy of the RN for the 2027 Presidential Election and won’t be able to unless the appeal happens very quickly and overturns this part of the sentencing.

Now you might think that the international press’s reaction to this would be to pronounce the end of Marine Le Pen’s political career. After all, this would have been her fourth attempt to run for President; she has a ready-made if practically juvenile replacement in Jordan Bardella; and any appeal is likely to take long enough to destabilise any attempt to run effectively for president. That would be the standard conventional wisdom for what happens when a politician runs afoul of the legal system in a liberal democracy.

It is indeed what happened with previous French politicians who were found guilty of rather similar activities. Alain Juppé, protege of Jacques Chirac, was given a (suspended) eighteen-month jail sentence and banned from political activity for a decade for presiding over the creation of ‘ghost jobs’, where money from the Parisian city government (under mayor Chirac) was channeled to funding the Rassemblement pour la République (RPR), the political party to which Juppé and Chirac belonged.

Francois Fillon - once the apparent future of conservative French politics - was found during the Presidential campaign of 2017 to have paid his wife Penelope and his children to act as legislative aides for decades, without them obviously carrying out any such work. The wonderfully named ‘Penelopegate’ resulted in custodial sentences and enormous fines for both Francois and Penelope.

Nicolas Sarkozy also received a custodial sentence (served as home confinement) after leaving office as President - this time for two different campaign finance scandals, one in 2007 and one in 2012.

All of this is to say, French politicians have a lot of previous here. And have been punished in equivalently draconian fashion.

And this raises a question. Why is it OK to punish politicians on the centre-right for misuse of political funds but not Marine Le Pen? Given the news agenda in the UK, some wags might call this ‘two-tier justice’.

The Times, the (one-time?) paper of record in Britain, has come out strongly against the French court’s decision today. The Telegraph and Spectator have done similarly. And lest you think this is a right-wing tic, everyone’s favourite motorbike-riding quasi-socialist lothario Yanis Varoufakis has too in, where else, but the bible for fake contrarians Unherd.

Now I think it’s worth having a debate about whether the sentencing for Le Pen was too strong at the margin, in terms of ineligibility applying immediately (this was slightly different for example with Juppé) but, and this is important, I don’t understand quite why the immediate reaction of so many people has to been to look at second-order effects.

What I mean by this is that it seems pretty indisputable that Le Pen and the RN committed this illegal act. Populists talk a big game about corruption by mainstream parties so it hardly seems out of place to denounce them when they are also guilty of it. That does seem like the first place one ought to begin an editorial - with the actual facts at hand.

But we have moved straight ahead to alleged (and hypothetical) consequences. The critique has been that this sentencing was over the top and will inflame the populist right. Or that it deprives people of the right to vote for a politician they wanted to vote for. Let’s take these in turn.

The former point is conjecture. Another outcome might have been Le Pen acquitted in which case she could have denounced the corrupt courts for wasting everyone’s time. Or it could have been Le Pen found guilty but not banned from politics, in which case she would have denounced the corrupt courts. And as it is she is denouncing the corrupt courts. In other words, the counterfactuals aren’t that different. The genius of populism is to claim victimhood regardless.

The populist right may well be inflamed but a lot of people seem to have jumped to the conclusion that this is good for Le Pen. As I said, highly controversially, last night on Newsnight (18 mins in), it is in fact pretty bad to be banned from running for office. It is likely to tear the RN apart if they have to decide whether to keep backing Le Pen or rally behind Jordan Bardella. Yes I am sure lots of RN voters will be upset. But the political interesting question is whether lots of people who would not otherwise have voted for Le Pen will now demand the right to do so, or will, vote for her replacement. Consider me skeptical.

Point two has slightly more merit. One can understand that in a Presidential system depriving the electorate of the right to vote for a person who commands high support can be controversial. Indeed, we are placed in the not entirely simple position of having to distinguish this case from whether Trump should have been disbarred from running for President (had he been impeached he would have been but the outcome of the various state-led cases did not produce that, or the cases were withdrawn post November), and from the cases of barring Calin Georgescu from running in Romania’s presidential election and Recip Erdogan’s attempts to prevent Ekrem Imamoglu from running against him in Turkey’s next presidential race.

If we are to say that any politician found guilty of a crime or who a court rules against in terms of ineligibility must be ruled out then we have to rule out all four. I think most readers of this Substack might feel the Turkish case should be viewed as the attempt of an authoritarian leader to prevent their main opposition from overthrowing them. With Trump, the matter lay in whether the Senate chose to convict - they did not - as opposed to the state court of New York convicting over ‘hush money’ accusations, which they did. The former would have stopped Trump legally from running. The latter apparently not. So in Trump’s case, the multiple accusations against him led in different directions in political implications. For Georgescu this has been quite controversial and the nub of the matter lies in whether his campaign was Kremlin funded and the rights of political systems to defend themselves from that.

All of which is to say that none of this is simple. It really would be a better world if we did not have to continually adjudicate if some court cases were legit and others dubious and politicised. In truth, we have to use our judgment. If the highest court of the land makes a decision then there is not further court we can then go to to figure out if that decision was ‘correct’ or not (save appeals courts of course). There will come a point where we don’t have a perfect answer from perfectly apolitical judges.

It’s also true that the decision to bring things to trial is endogenous and potentially influenced by politics. That did seem to be the case for some of Trump’s various cases just as it did with Hunter Biden (and indeed the impeachment of Bill Clinton).

But, and this is important, this does not imply that no legal case involving politicians can ever be trusted. And that seems to be where the critics of ‘lawfare’ are heading. We have ended up in a situation where politicians are being held to different standards to the general public. In particular if the courts are not preventing politicians from exercising standard political rights, including speech, but are investigating misuse of funds, it’s not clear why you are I should have to face the consequences were we misusing funds but politicians should be given leeway.

Like everything else in life, there is a middle ground. Constant judicialisation of politics helps no-one. It’s hardly a new phenomenon of politics though - American, French, and Italian politics, to name just three countries, have been beset by court cases against politicians, and indeed leaders, for decades and decades. And until quite recently, we thought of all of these countries as unimpeachably democratic.

But just because things can be taken to an extreme does not mean they shouldn’t happen at all. The great Albert Hirschman once described some of the style of arguments that seem to be coming out of the woodwork in defence of Le Pen in his brilliant Rhetoric of Reaction. He described how reactionaries use three different rhetorical techniques to denounce change - perversity, futility and jeopardy.

The first is that any attempts to make progressive change will undermine themselves, the second that any attempts will simply fail to actually work, and the third is that in attempting to engage in change, other important achievements will be put in jeopardy. And it’s these kinds of arguments we are seeing about holding populists to account. The perversity argument is that holding populists to account will actually make them more popular. The futility argument is that you won’t actually be able to hold them to account (they will escape justice). And the jeopardy argument is that in attempting to hold populists to account you will undermine democracy entirely.

These arguments are popular because they are intuitively convincing. But they are intuitively convincing because we have heard these rhetorical styles a million times. Just read the Daily Telegraph. And note something about them. They do not criticise the purported change directly - they look for consequences and they denounce those consequences and thereby the change.

In our current case, we are too quickly looking past the event - the sentencing of Marine Le Pen and whether it was legal and deserved - to its consequences. Oh, it might make the RN more popular; oh, it probably won’t lead to her being punished in the end; oh, it might threaten French democracy entirely. Maybe. But maybe not.

Let’s not abandon our ideals on the altar of consequences that haven’t and may never occur. And let’s certainly not jump to bemoan those consequences a day after the event at hand. When oped writers play social scientist - by predicting the outcomes of an event rather than judging the event itself - they do so on easy mode. Nobody will peer review them, ask for robustness tests, check if their predictions came true. They will simply drive on, leaving whatever rhetorical detritus they have left behind in their rear-view mirror.

There is a famous quote attributed to the dictatorial President of Peru, General Óscar Benavides: “For my friends, everything. For my enemies, the law”. The opponents of populists appear to have decided that they can’t quite bring themselves to do the latter. I suspect the populists will not be as generous in return.