The trial of France's justice minister Éric Dupond-Moretti for an “unlawful conflict of interest” is due to take place from November 6th to November 17th at the Cour de Justice de la République (CJR). But is the trial itself undermined by its own conflicts of interest before it has even begun? Several judges, legal experts and politicians have told Mediapart they believe so as, for the first time in France's political and legal history, a serving justice minister prepares to put aside his government work to take his place on the defendant's bench.
The accusations against the head of the Ministry of Justice are well-known: Éric Dupond-Moretti is suspected of having used the disciplinary powers of his office to settle personal and professional scores with anti-corruption prosecutors and judges with whom he had disagreements when he was himself a prominent lawyer. The case involves both prosecutors from France's financial crimes prosecution unit the Parquet National Financier (PNF), who were investigating the so-called Bismuth affair involving former president Nicolas Sarkozy, and a former judge on secondment in Monaco whose investigations there created waves.
Éric Dupond-Moretti had links with both those cases. In the Bismuth affair he was at one time targeted by the PNF, a case which ultimately ended in the conviction of one of his best friends Thierry Herzog, Nicolas Sarkozy's personal lawyer and friend. In the Monaco case he was defending potential suspects.
But beyond the facts that underpin this conflict of interest case, the context in which the minister will stand trial and the problems this could cause are perhaps less well known. For Éric Dupond-Moretti is not going to be judged like any ordinary citizen in a normal court. Instead, he will be appearing in the Cour de Justice de la République which since 1993 has dealt with alleged offences committed by government members while carrying out their official duties.
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This court has one defining and major characteristic: while the investigation has been carried out by professional prosecutors, the great majority of the judges who will give their verdict at the end of the trial, and rule whether the minister is guilty or not, are politicians. More specifically, they are Parliamentarians from both the National Assembly and the Senate. In all, twelve politicians sit in judgement on the CJR, plus three professional judges.
For the last 30 years this situation has led to suspicions of political and legal cosy arrangements inside the CJR, a court often mocked for the leniency of its sentences (where there are any at all). “You should not ask the leaders of a corporation to judge a member of their corporation. It seems to me to be just as awkward for the politicians, they inevitably have their own interests,” says MP Charles de Courson from the LIOT – Libertés, indépendants, outre-mer et territoires – Parliamentary group, himself a former substitute judge and then a full judge on the CJR.
Impossible situation for the minister and his judges
But the fact that the court is about to pass judgement on a serving minister makes the situation not just unprecedented, but also a complete mess from an ethical point of view.
“I don't see how you can continue to be justice minister while being a defendant in a trial. It's a conflict of interests. He should not have stayed in his job. He's provoking a situation in which this trial risks increasing the gap between politicians and citizens still further,” says former justice minister Marylise Lebranchu from the Socialist Party (PS).
Her socialist colleague, Senator Laurence Rossignol, who has also been a judge on the CJR, agrees. “Some very worrying aspects overlap in this trial,” she says. “A minister in office was placed under investigation and is going to be tried over actions taken while carrying out his duties, and he has not resigned. That's a first. And the CJR is made up of politically-committed judges: some belong to the same ruling party as the justice minister, others think that ministers should not stand trial. It's a concentration of everything that you shouldn't do.” She adds: “He's casting doubt on the impartiality of the judges by portraying himself as the victim of a plot. Those subject to the law are going to ask themselves: 'If the judges aren't impartial with him, how could they be with me?' It's unhealthy.”
Apart from Belarus, perhaps, where else is a minster judged by his peers?
One professional judge who has sat on the CJR and who asked to stay anonymous because of the duty of confidentiality by which he is bound, is worried about the nature of the Dupond-Moretti trial. “France has the distinction of being the only European state to have a separate jurisdiction to try its ministers. And in every democratic country a minister who is, at the very least, exercising moral authority would stand down before his trial,” he says. “Apart from Belarus, perhaps, where else is a minster judged by his peers? This isn't justice, it's murky political negotiation.”
When appearing before a Parliamentary committee in May 2020 a former president of the CJR, Jean-Baptiste Parlos, framed the debate in this way: “To sum up the problems of the Cour de Justice de la République in a slightly trivial way, I would say that it gives the impression that cases involving ministers are resolved through little agreements between friends.”
In fact, there are several problems with the Dupond-Moretti trial if one accepts the definition of conflict of interest given in 2013 legislation on transparency in public life. This law states that a conflict of interest involves “any situation of interference between a public interest and public or private interests which is likely to influence or appear to influence the independent, impartial and objective exercise of a function”.
So how can one believe in the supposed neutrality of a judge when he has a political interest in the judgement? A member of the presidential majority party, for example, has a political interest in the minister being acquitted, given that his conviction could cost him his job. That happened in the earlier case of Alain Griset, a junior minister who was kept in his post by President Emmanuel Macron until a court ruled he had been guilty of an incomplete or false declaration of his assets in 2021. In the same way – and for the same reasons – a Parliamentary judge from the opposition has a vested political interest in the minister's conviction.
Giving evidence against their boss
The potential interests involved can be even closer to home. Take the example of the MP for the ruling Renaissance party Émilie Chandler, who sits as a judge on the CJR. She is a member of the Parliament's law committee and a natural intermediary between Parliament and the Ministry of Justice and its departments. In May 2023 she was also the rapporteur for a report on intrafamily violence that went directly to Éric Dupond-Moretti, whom she praised in the media for having followed its recommendations.
Émilie Chandler did not respond when approached by Mediapart for comment.
The situation also looks set to be particularly sensitive for several trial witnesses. Some prosecutors at the PNF who had to suffer the minister's wrath - he described them as “spooks” - will be called to give evidence. They will have to raise their right hand and say “I swear” before giving an account that is likely to blame the person who is in effect their boss, given that in France there is a direct chain of authority between the executive and state prosecutors. The result is that their future careers depend on this minister.
Ludovic Friat, the president of the judges' and prosecutors' professional body, the Union Syndicale des Magistrats (USM), highlights another serious issue. “If he stays on as minister that raises a major institutional problem: he is the hierarchical superior of the prosecution which is going to make the case [against the minister]. That's inconceivable in democratic terms. Will he resign? We don't get the impression he will. Will he make himself unavailable during the trial, a kind of super recusal, leaving [his official duties] to the prime minister's office? Surprises can always happen.”
In the end, while the former judge and essayist Antoine Garapon thinks that Éric Dupond-Moretti “has shown himself to be not up to the job” by failing to resign, his fellow magistrate and essayist Denis Salas says that the minister will conduct a vigorous defence with three major advantages on his side. “One, he has the confidence of the president of the Republic, using the spasmodic mantra of the presumption of innocence. Two, he's a master of language, he'll be all over the media. Finally, there's the CJR itself, with its precedents of acquittals, of dispensing with punishment and of very lightweight convictions,” he says.
“His non-resignation shows that the Bérégovoy-Balladur precedent [editor's note, the unwritten rule under former prime ministers Pierre Bérégovoy and Édouard Balladur by which a minister facing a judicial probe had to resign] comes across as cautious, an ethical safety first policy which is no longer the done thing,” continues Denis Salas. He thinks the minister will base his defence on the “conflict between politicians and magistrates” in order to “drown out the conflict of interest”. In other words, Éric Dupond-Moretti is destined to become a trial lawyer again. In this case, his own trial.
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- The original French version of this article can be found here.
English version by Michael Streeter