In France, the problem of drug trafficking, burglaries, terrorism and physical violence lies with the drug dealers, burglars, terrorists and abusers. But when it comes to crimes involving dishonesty in public life, it seems the problem is with the justice system. More precisely, with those who uphold it in the name of the French people: the judges. Going by the spate of political and media comments since Marine Le Pen’s conviction on Monday for the misuse of public funds, the courts have apparently become agents undermining democracy.
This craziness masks a deeply unhealthy and dangerous political aim: a longing for the return of privileges abolished on the night of August 4th 1789. The clearest barometer of this national affliction lies, ironically, beyond France’s borders. Before the Paris court had even finished delivering its verdict, Vladimir Putin’s Kremlin, that great champion of freedom as we all know, was already expressing concern over a “violation of democratic norms in France” (try not to laugh), while Hungary’s autocratic leader Viktor Orbán posted a heartfelt “Je suis Marine” on X (try not to laugh again).
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We will have to get used to it, as this trend is only getting stronger. Inside the confines its own borders France is now moving to the rhythm of an international populist wave, with the rule of law as a prime target. This wave that has already wreaked havoc elsewhere: from Trump in the United States, Berlusconi in Italy, Bolsonaro in Brazil, Netanyahu in Israel.
France is clearly not immune. What is taking place in the wake of the Le Pen verdict, just as with the financial prosecutors' summing up last week in the Sarkozy-Gaddafi case, is nothing less than a test of this country’s democratic resilience.
Yet there is an Orwellian feel to current events. From the hard-right politician Éric Ciotti to radical-left veteran Jean-Luc Mélenchon, with prime minister François Bayrou somewhere in between, an impunity-backing cartel has emerged, whether in public or behind closed doors, claiming that a court which simply applies the law is somehow disrupting the democratic order of things. This is what we've come to, and you have to rub your eyes to believe it. Who writes the laws? Not the judges, but the political classes. Where do elected representatives get their legitimacy? From the ballot box. The very ballot box that is now being brandished by the political critics of financial justice to argue that only voters should have the right to punish politicians for wrongdoing.
Reality and its mirror image
Does anyone grasp the grotesque nature - and falseness - of this argument and its implications? In France, anyone found guilty of an offence can be banned from their profession as soon as the initial verdict falls (what the law calls “immediate enforcement”): an entrepreneur for tax fraud, a business owner over undeclared work, a physiotherapist for sexual assault, an anaesthetist for stealing medicine, a prison officer for assault, a court bailiff for embezzlement, and so on.
But, according to the argument put forward by Marine Le Pen’s lawyers, politicians should somehow be naturally exempt from such legal consequences? “The defence’s proposal to leave any potential sanction up to the sovereign people at the ballot box amounts to claiming a privilege or immunity derived from the status of an elected official or candidate, in breach of the principle of equality before the law,” was the response of the presiding judge, Bénédicte de Perthuis, when delivering the ruling that sentenced Marine Le Pen to four years in prison (two of them suspended) and an immediate five-year ban on running for public office.
The judge took time to explain herself, spending nearly three hours outlining the grounds for her decision. She highlighted the “seriousness of the offences, their systematic nature, the fact they lasted 12 years, and the status of the elected officials involved”. In fact, this case involved a well-organised scheme in which Marine Le Pen’s party siphoned off more than 4 million euros of public money from the European Parliament to pay for fictitious jobs within her party, Rassemblement National. Yet with so much focus on the immediate enforcement of the sentence, it is almost as if the real crux of the matter is being overlooked.
The presiding judge also pointed to the clear risk of re-offending, given the attitude of the accused both during the investigation and in court, most notably Marine Le Pen. She and her co-defendants repeatedly denied the most basic facts and showed contempt for the judiciary, just as they had done with the police. Which is rather ironic, to say the least, coming from a political movement that constantly preaches law and order. Worse still, was Marine Le Pen not the very same person who, in 2013, in the wake of the Cahuzac affair (when the budget minister Jérôme Cahuzac had to resign over tax evasion), called for a lifetime ban on holding public office for any elected representative convicted of crimes involving dishonesty, particularly the embezzlement of public funds?
Given the clear risk to public order from individuals who do not seem to grasp the gravity of their actions, the court deemed it essential to order the immediate enforcement of a ban on running for political office, fully aware of the impact this would have on public life. But who is to blame: the court for enforcing the law, or the accused for committing a crime?
In a rather amusing episode, the person who unwittingly lent the most weight to Judge Bénédicte de Perthuis’s reasoning was Marine Le Pen herself. Clearly realising she would not escape a conviction and immediate ban, she left the courtroom before the verdict had even been fully delivered. Classy.
At heart, the reaction from a political world that cares more about its own privileges than the public good was, sadly, foreseeable. What is less acceptable - far less so - is the failure of much of the French media when it comes to reporting on corruption cases. These cases are almost never framed as the result of a crime that undermines the very fabric of an organised society. Instead, these cases are presented as little more than a political shooting range, in which judicial inquisitors target hapless politicians who have become the victims of a supposed “judges' Republic”.
A prime example of this was the reaction to the financial prosecutors' summing up in the Sarkozy-Gaddafi case last week. The prosecution called for a seven-year jail term for the former president, yet the reaction in television studios has made for pitiful viewing.
The most ludicrous moment came from the LCI news channel which, the day after the prosecution summing up, hosted a debate on the subject entitled: “Are judges playing politics?” And the guest they chose to discuss this? None other than Louis Sarkozy, the son of the main defendant, who also happens to be the godson of the channel’s owner, businessman Martin Bouygues.
The reality doesn't matter. Only the perception counts.
In the Sarkozy-Gaddafi case, just as in the Le Pen case before it, the claim that the prosecution's case is “empty” and “lacking evidence” has been repeated ad nauseam by political commentators who have not set foot in the courtroom yet who have no qualms about lecturing the public on how to judge the work of prosecutors.
No one can say what the court will decide in the Sarkozy-Gaddafi case – the verdict will probably come after the summer - but anyone who attended the trial knows that the case is anything but empty. A glance at the reports on the financial prosecutors' summing up, written by journalists who have followed every hearing, is enough to confirm this.
Let’s start with a newspaper that can hardly be accused of knee-jerk anti-Sarkozy bias: conservative newspaper Le Figaro. It described the prosecution's case as “devastating overall”, adding: “Boosted by the poor credibility of many of the defendants' statements, the three prosecutors built a formidable case.”
Le Monde called the prosecution’s argument “weighty, well-structured, meticulous”. Le Nouvel Obs news magazine spoke of “three days of relentless summing up”, while its rival Marianne headlined with “a crushing summing up”.
On page 44 of her book L’Aube le soir ou la nuit ('Dawn Evening or Night', published by Flammarion), a chronicle of the 2007 presidential election, writer Yasmina Reza records a revealing remark from Laurent Solly, then deputy director of the future president’s campaign. She writes: “A few days later, the same Laurent told me that the reality doesn't matter. Only the perception counts.”
And that is the point we're at.
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The original French version of this op-ed can be found here.
English version by Michael Streeter