Six days after sending someone who has been convicted twice, for “corruption” and “illicit campaign funding”, to represent France abroad, President Emmanuel Macron has now seen his justice minister sent for trial over an alleged breach of public probity while in office. It is an unprecedented move in French political and legal history.
Éric Dupond-Moretti will appear before the Cour de Justice de la République (CJR) – the court that deals with the alleged offences of ministers while in office – accused of an “unlawful conflict of interest”. But even as the news emerged on Monday October 3rd, it was clear that the minister was intending to stay in his post; his lawyer Christophe Ingrain hastened onto BFMTV news channel to insist that there was “no legal reason” for his client to resign. On Tuesday morning the minister himself declared that resignation was “not on the agenda”.
Enlargement : Illustration 1
In his 1910 essay 'Notre Jeunesse' ('Our Youth') the French essayist and poet Charles Péguy produced this searing observation: “We must always say what we see. Above all, and this is harder, we must always see what we see.” So what do we see today? We see probably one of the most shameless efforts at destroying a sense of justice carried out at the the highest levels of the state, and one encouraged by the president of France, Emmanuel Macron. This was the same Emmanuel Macron who, as a presidential candidate in 2017, had sworn: “Justice is as the heart of our project … Whatever their position, we want leaders who take responsibility, who are exemplary and accountable.”
When in the summer of 2020 he appointed as justice minister a high-profile lawyer noted for his brutal approach and who loves to portray himself as a sworn enemy of anti-corruption judges and prosecutors, Emmanuel Macron must have been aware how provocative he was being. The investigation by the CJR – which concluded on Monday with a demand that the minister stands trial – also shows how dangerous this provocation was.
Let us recall the facts of the case. Éric Dupond-Moretti faces accusations that, from his very first days in office, he used his new governmental powers to carry out disciplinary investigations into anti-corruption prosecutors and a judge with whom he had lively personal, professional and political conflicts as a lawyer.
His targets? They included prosecutors from the national financial crimes prosecution unit, the Parquet National Financier (PNF), just a few weeks before the trial of former president Nicolas Sarkozy and his lawyer Thierry Herzog – a friend of Dupond-Moretti - in the so-called Bismuth phone-tapping case. This was a trial in which the PNF itself was conducting the prosecution. The other target was Édouard Levrault, a Monaco-based judge specialising in financial affairs whose investigations had worried the principality … and former clients of Dupond-Moretti from when he was a lawyer.
Lessons from the trial of Herod
By the autumn of 2020 the newly-appointed justice minister's conflicts of interest in his vendetta against the anti-corruption prosecutors had sparked unprecedented anger in the ranks of the judiciary, from the smallest regional court to the Cour de Cassation, the top appeal court, in Paris. But it had no effect; Emmanuel Macron continued to give the minister his full backing.
In July 2021, a year after the scandal first broke, Éric Dupond-Moretti was placed under formal investigation for “unlawful conflict of interest” by the investigations section of the CJR. Again, this had no consequences: the president resolutely kept him in post, even though the head of state had previously promised that any minister placed under investigation in this way should resign.
Éric Dupond-Moretti's best line of defence, apparently, was to point the finger at the CJR judges, whose questions he refused to answer, while at the same time leaking to the media details of his anger towards them. Yet again there was no comeback. In fact, Emmanuel Macron went further and not only did he not ask the minister to resign, he reappointed Éric Dupond-Moretti as justice minister after he was re-elected as president this year, rather than quietly dropping during the formation of a new government.
Thus the same people who insist on the authority of the justice system when it comes to everyday crimes – including, as Éric Dupond-Moretti stated recently, sexual violence – then laugh in its face when it involves an offence of the privileged: white-collar crime. For them, justice is just a form of words to ensure that we 'don't see what we see' when it comes to a breach of public probity in France.
First they say we can't talk about the facts of the case because of the presumption of innocence afforded to a suspect. Next, the view is taken that being placed under formal investigation is no big deal after all. Thirdly, being sent for trial is then seen as nothing major either. Fourthly, a conviction itself isn't considered that bad if it hasn't been upheld on appeal. Fifthly, and finally, once the verdict has been upheld we are asked to accept that the defendant has now paid their debt to society. In short, heads I win, tails you lose.
In Antiquity Herod was a governor consumed with ambition who lacked scruple or pity and who ultimately ended up massacring his own judges – and thus the very idea of justice – rather than submit to the law after being summoned to appear before a court by King Hyrcanus. But before his grisly revenge, one judge called Sameas, appalled that the governor had brought soldiers to the trial, had the courage to stand up and address his fellow judges. “Herod, who is accused of murder … stands here clothed in purple … and with his armed men about him, as if – should we condemn him by our law - he may slay us and by overbearing justice may himself escape death,” declared the judge. “Yet I don't make this complaint against Herod himself; he is to be sure more concerned for himself than for the laws; but my complaint is against yourselves, and the king, who gave him a license to do so.”
This is the same license that Emmanuel Macron has afforded Éric Dupond-Moretti for the past two years.
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- The original French version of this op-ed article can be found here.
English version by Michael Streeter