Former President Trump is in serious legal trouble. He could, in theory, go to prison for many years.
It may be apparent that Trump shook the foundation of American democracy and the rule of law, but throwing him into prison will not ensure justice or fairness.
America’s criminal justice system will likely weaken if Trump is convicted and imprisoned. This will only give some future Democratic or Republican president an excuse to use the Department of Justice to go after his or her political opponents, at the same time exercising the pardon power to set his or her allies free.
Those Americans who want to see Trump serve a prison sentence assert that other democratic countries have convicted their former presidents, citing South Korea specifically. However, these convictions and prosecutions have not served South Korean democracy well. The imprisonment of presidents has only served to create a cycle of recrimination and revenge from both conservative and progressive presidents who have abused loopholes in the legal system.
To prosecute a former president is much easier in South Korea than it is in the U.S. because the incumbent Korean president can control the entire legal process through a group of hand-picked prosecutors.
The Korean president not only appoints all prosecutors, but can also direct each and every investigation and prosecution, since his prosecutors can monopolize both criminal investigations and prosecution. Prosecutors openly work for the president’s interests, so that people view them as the most untrustworthy among government officials, even calling them “the regime’s running dogs.”
As of today, four South Korean presidents have been indicted and convicted. Three out of the four cases are not relevant to the U.S. controversy over Trump — two military dictators (Chun Doo-hwan and Roh Tae-woo) found guilty of initiating the 1979 coup d’état, and one civilian president (Park Geun-hye) impeached for corruption. This leaves Lee Myung-bak, the first civilian former Korean president ever imprisoned without being impeached.
To understand the prosecution of Lee Myung-bak, one needs to know what he did during his tenure. The nominee of one of South Korea’s conservative parties, Lee scored a landslide victory in the presidential election in December 2007. However, due to his mishandling of the economy, Lee faced an alarmingly low approval rating, 21 percent, after less than six months of office.
Lee decided to save his presidency by scapegoating his predecessor, Roh Moo-hyun. He appointed a group of ambitious associates from his own college as prosecutors and ordered them to charge Roh and his family for bribery.
When Lee’s chosen prosecutors could not find hard evidence, they fabricated it instead and leaked it to the media to humiliate Roh in the public eye before even bringing him in for interrogation. Lee’s prosecutors eventually summoned Roh, his son, and his wife, alleging that they had taken illegitimate money to pay for their child’s education abroad.
Roh, who always maintained his innocence, died by suicide. Korea Daily, one of the largest conservative newspapers, quoted a friend of the deceased president, “The politically motivated investigations conducted by the Supreme Prosecutors’ Office must have caused the suicidal death of the former president on May 23, 2009.”
Lee’s prosecutors subsequently closed the investigation without any charges against Roh’s family after his death. But Roh appears to have been exonerated in the public eye, according to a 2022 survey. Among all former presidents, Roh is now viewed as the most trustworthy.
In 2017, Moon Jae-in, representing a progressive party, was elected president. He appointed prosecutors who were loyal to him and directed them to go after Lee. They did so ruthlessly, securing a 17-year sentence and a $10 million fine connected to an older business scandal that had first come up during Lee’s 2007 run for president. At that time, Lee had been let off the hook by a group of prosecutors that included Yoon Suk Yeol.
Eleven years later, Yoon would play a major role in securing Lee’s conviction. The public came to see him as a symbol of justice and fairness, and in June 2021, he rode a wave of popularity into a presidential campaign.
Seven months after Yoon was elected South Korea’s new president in 2022, he pardoned Lee, absolving him of the balance of his prison term and $6 million of his fine. Yoon and Lee are now affiliated with the same conservative party, and many of Lee’s friends have assumed key roles in the Yoon government. Yoon has so far refused to grant clemency to any of his political opponents.
The shoe may soon be on the other foot. Yoon now suffers from the lowest approval rating of any president in Korea’s democratic history. He has reacted to this circumstance by selecting a group of prosecutors to go after his predecessor, Moon Jae-in, and his former officials.
The case of South Korea provides useful guidance for Americans about the potential consequences of indicting former presidents. This act, in itself, will make America less democratic, because it only guarantees future political prosecutions under the pretext of justice and fairness. If the experience of South Korea is any indication, then convicting and imprisoning one former president is far less likely to secure justice than it is to trigger a vicious cycle of retribution and revenge.
Trump’s opponents may be satisfied in the short run if Trump is sentenced to prison. They will not feel that way when Trump is pardoned by a Republican president, who additionally exacts retribution by sending the hounds after Democrats. And of course, this too will backfire on Republicans when Democrats are back in the driver’s seat and in a position to initiate another political prosecution. And the cycle will go on, and on, and on.
The problem with Trump’s prosecution is not that he is innocent, a good president, or a good person. It is that sending Trump to prison risks ruining the long tradition of American democracy that tolerates and respects different opinions and actions of political competitors. In the U.S., at least prior to 2023, it was essentially unheard of for the winner of an election to prosecute the loser. For this reason, the risks of sending Trump to prison are far greater than the potential benefits.
Seung-Whan Choi teaches Korean politics and International Relations at the University of Illinois at Chicago.