Sometimes a chance combination of events tells its own story. Thus in the space of three days France saw its current labour minister standing trial over an allegedly rigged contract, its former budget minister who had been convicted of tax fraud announcing a possible return to politics, and the serving justice minister acquitted of the offence of “illegal conflict of interest” by a special court that the current ruling party wanted to abolish just four years ago because they said it represented a privileged in-house form of justice.
These separate events all tell the same story: highlighting how the crumbling of the relationship between French democracy and public ethics appears to be accelerating, and highlighting also the collapse in the collective trust that a people, in its happy diversity of political convictions, has in its leaders.
Enlargement : Illustration 1
The etiquette of news means one has to start with the most recent event: the acquittal on Wednesday of justice minister Éric Dupond-Moretti at the Cour de Justice de la République (CJR). The facts behind the case are widely known and have been much discussed; the minister was accused of having misused the disciplinary powers of his ministry in order to take revenge on anti-corruption magistrates with whom he had quarrelled personally and professionally when he was a prominent lawyer prior to his appointment.
The nature of the court that acquitted him, which went against the prosecutor's demands in doing so, needs reiterating: when it sits in judgement the CJR – which tries ministers accused of offences committed in the course of their official duties - mostly consists of Parliamentarians from the National Assembly and the Senate. Twelve Parliamentarians in all sit as judges, alongside just three professional judges. Politicians are essentially judging themselves.
This original sin of the CJR, combined with the leniency that it has shown over the last 30 years in many cases – which has sometimes bordered on a mockery of justice – had led François Hollande in 2012 and then Emmanuel Macron in 2017 to call for it to be abolished. But the court's abolition, which was even announced at a meeting of ministers on August 24th 2019, never ultimately occurred. The members of the government thus retained this incredible judicial privilege that France continues to provide for its ruling class.
The result is that whatever the trial outcome – conviction or acquittal – CJR verdicts are always tinged with suspicion and only seem to have real authority for those who benefit from them. It is also no coincidence that the official French website vie-publique.fr, maintained and edited by the prime minister's office, itself describes the court as a “controversial institution”.
A cartel of impunity
A former president of the CJR, magistrate Jean-Baptiste Parlos, summed up the situation particularly well in May 2020 when appearing before a Parliamentary commission. “To summarise the Cour de Justice de la République's problem in a slightly trivial way, I would say that it gives the impression that cases involving ministers are resolved through little deals among friends,” he stated. The acquittal of Éric Dupond-Moretti, whose actions when he took over at the Ministry of Justice sparked an historic rift with judges and magistrates, is clearly no exception to this rule.
Never lacking in inventiveness, the CJR had to come up with a rather subtle argument in order to acquit the minister. The court in fact considered that while the crime of “illegal conflict of interest” of which Éric Dupond-Moretti was accused had been materially established, the minister had not intended to commit this offence. According to the CJR judges, the minister had not been sufficiently warned that his situation of an objective conflict of interest could turn into an “illegal conflict of interest”. This casts Éric Dupond-Moretti as a criminal law version of a combination of the hapless Monsieur Jourdain from Molière's celebrated play Le Bourgeois Gentilhomme and the cyclist Richard Virenque, best-known in France for denying involvement in a doping scandal despite damning evidence.
We are talking here of a man who, before he became justice minister in 2020, had been a lawyer for 35 years and is reputed to be one of the best legal practitioners of his generation. We are also talking about a Ministry of Justice and ministerial office who are supposedly not the the worst informed when it comes to legal issues.
If one adds to that the vindictive, sententious and inappropriate attitude adopted by the minister during the eleven days of his trial, including towards those magistrates who were witnesses or victims in the affair and over whom he has authority as minister, the Dupond-Moretti case is enough to leave one feeling a sense of disbelief. This feeling is accentuated by the fact that, now acquitted, the minister thinks he has even less cause to resign than when he faced proceedings, thus heralding an uncertain post-trial period concerning his relations with magistrates and the judiciary.
In the meantime it's not hard to imagine how much Éric Dupond-Moretti's acquittal will embolden the views of that cartel of impunity which does not even accept the very idea of accountability. The old refrain about the dangers of a “Republic of judges” will doubtless grow louder among those who, delighted with this 'victory' at a court that is largely political, will make us forget for a while the fact that the law is not voted on by judges but by elected politicians, with the judges there to apply the law.
In one corner of the political world this rule seems to be accepted as long as it doesn't overly affect white collar crime. The desire for “zero tolerance” is, in this respect, inversely proportional to the nature of the crimes being tried, and based on whether you are powerful or poor, as in the fable of The Plague Among the Beasts. And that is obviously unacceptable for anyone attached to the idea of equality of rights and responsibilities for all ... a principle that should matter somewhat in a democracy.
Macron's legal doctrine: a populism worthy of Trump
When, during Emmanuel Macron's second term of office, one asks where his ministers are, the reply increasingly is that they're in court. For after Éric Dupond-Moretti, who has finished his case, there is now his government colleague Olivier Dussopt, whose turn it was to attend court on Monday November 27th, for the opening of his trial in Paris over alleged “favouritism”.
The labour minister is on trial for having taken part, while he was mayor of Annonay in south-east France in 2009, in an allegedly rigged public water contract for the benefit of a major French company Saur. Like anyone facing accusations the minister, who denies any illegal actions in a case that began after revelations by Mediapart, benefits from a presumption of innocence.
But beyond the case itself, the Dussopt trial is interesting by dint of what the head of state says about it politically. If one is to believe a report by France Inter public radio, Emmanuel Macron recently used a meeting of ministers to offer his support for the labour minister saying that he “saw in this trial a further drift away from the entire democratic system”. According to a minister present the president also stated: “The final word must be with the sovereign people and not the judges.”
One should pause for a moment to reflect on these presidential thoughts. The idea that Emmanuel Macron, who is the constitutional guarantor of judicial independence, might see judges performing their judging duties as a “drift” away from democracy says a great deal about his relationship with the institutions.
While he may lack the orange hair and the gold-plated bathrooms, Emmanuel Macron talks exactly like Donald Trump in the United States. Or like Silvio Berlusconi in Italy. Or Benjamin Netanyahu in Israel. Or Jair Bolsonaro in Brazil. In other words, like all the pyromaniacs who have used their hatred of the legal system to fuel their muddled populism. This approach has several faces but always the same aim: to guard the privilege of impunity by playing the “people” card when it suits them.
Though radically at odds with his political stance when he was the candidate for greater morality in public life during the 2017 presidential campaign, Emmanuel Macron's words are nonetheless not remotely surprising for those who have followed his evolution since he became president.
As early as 2018, shaken by the Benalla affair – involving his former bodyguard Alexandre Benalla - the president used his notorious speech at the Maison de l’Amérique Latine centre in Paris to attack all those who might represent a counter-check to power in a democracy. He went in all guns blazing for a discourse in which everyone was taken to task: the press, the justice system, Parliament and the opposition.
During the initial legal developments in the Dupond-Moretti case, Emmanuel Macron had also said – at the risk of slaying that champion of the separation of powers Montesquieu a second time – that the justice system should not become a power in its own right. And in the middle of the Kohler affair – named after the president's chief of staff Alexis Kohler who is under investigation for the “illegal acquisition of an interest”, the president did not hold back from attacking civic society in the form of anti-corruption group Anticor on the Complément d’Enquête television programme on public broadcaster France 2.
How long ago it now seems that Emmanuel Macron, when speaking to Mediapart in May 2017, said he regretted the way that “we have shifted political responsibility towards a form of criminal law or judicial responsibility”. Clearly unafraid that he would be contradicted by the very president that he has become, he added at the time: “We only make ministerial responsibility a reality when they have [legal] cases.”
In fact, political responsibility today seems to have disappeared into a limbo of renunciation, and responsibility in terms of the criminal law is held in contempt a little more each day, judging by the power struggle between the head of state and magistrates over various cases. And stuck in the middle of all that are the citizens who no longer understand what is going on. On the one hand they are told that they must respect the authorities, the police and the legal system; on the other, they are told that these very same legal authorities are a symptom of drift when they become inquisitive as to the practice of power...
Cahuzac, Kant...the list is endless
The cherry on the cake of this grim week has been the return of a political ghost to public debate: Jérôme Cahuzac. The former minister under President François Hollande, who accepted his appointment as budget minister (where he was in charge of fighting tax fraud) while at the same time possessing undeclared bank accounts in Switzerland and Singapore, has let it be known that he wants to returned to politics. This comes five years after he was convicted on appeal and sentenced to four years imprisonment, two of them suspended – his lawyer then was Éric Dupond-Moretti.
Just to be clear, no one can be indifferent – not here at any rate – to the rehabilitation of convicted people who have paid their debt and who should not have to face the prospect of social death. But in Jérôme Cahuzac's case, wanting to come back is one thing; the manner in which he is doing it is quite another.
Speaking on the France Inter morning radio show on Monday, the former minister and convicted fraudster hid behind the philosophy of Immanuel Kant (1724-1804) and his relationship to individual/universal morality to inform us that he was now at peace with himself. And when journalist Sonia Devillers asked how one could now trust him, Jérôme Cahuzac gave this extraordinary reply: “That's your problem, it's no longer mine.”
The man who, through his tax fraud – which is one of the worst social crimes and even more so when committed by the budget minister – his lies and his manipulation caused lasting damage to public trust, has no problem in explaining publicly that he washes his hands of the quite legitimate questions he is asked. Clearly full of himself, he gives the impression that the only thing that counts is him and his undimmed desire for power. In this respect, he doesn't seem so different from the drug addict who has been deprived of his favourite drug for too long.
His nerve seems to know no bounds. For example there was this line, about his hidden assets abroad: “I'm not sure that on a political level the creation of [broad leftwing alliance] NUPES isn't more serious [than my tax fraud].” It has to be said that such a level of confusion-sowing at peak listening time sometimes gives one the impression that we are living through an episode of the series Black Mirror.
In 2017 a politician who was being questioned about political scandals told Mediapart that “aside from the question of justice, each individual's morality should lead them to step aside and never against seek the trust of their fellow citizens” when they have been convicted in a case involving personal probity.
The politician in question was Olivier Dussopt.
--------------------------------------------------------------------------
- The original French version of this op-ed can be found here.
English version by Michael Streeter