Late last month, a French court barred Marine Le Pen from standing for political office for five years, on the grounds that her party, the far-right National Rally (RN), systematically embezzled more than 4 million euros ($4.5 million) in public funds. Resources earmarked for staff of members of the European Parliament in Brussels were instead used to cover RN’s expenses back in France.
Le Pen is appealing the verdict, and her supporters are not the only ones finding fault with it. Impeccably liberal voices are also arguing that it would be better to allow Le Pen to stand in the 2027 presidential election and be judged by voters. Yet these arguments for prioritizing politics over the law are deeply flawed.
Short of bans, European elites have excluded far-right parties from governing. The most important recent example of this is Germany’s “firewall”: a commitment by all the other major parties not to govern with the far-right Alternative fur Deutschland (AfD), which finished second in the February federal elections.
Yet there is absolutely no evidence that the French judiciary was acting at the behest of politicians or, more importantly, that it was picking on Le Pen. Plenty of other politicians, including decidedly establishment figures — such as former Prime Minister Francois Fillon (also a one-time presidential front-runner) — have been convicted of embezzlement. Even former presidents like Nicolas Sarkozy have been found guilty of corruption. Le Pen had always called for harsh punishments in such cases, yet now she conveniently believes that the people themselves are the supreme court.
There is a categorical difference between sanctioning a particular candidate for illegal conduct and removing an entire political option from the electoral menu. The latter is characteristic of the approach known as “militant democracy,” as practiced most prominently in Germany. Here an entire party is banned because its program and leadership seek the destruction of the liberal democratic order.
One can debate the legitimacy of such bans. But this is not the question at issue with the Le Pen verdict. Her party will remain on the ballot, and though the RN has always been a Le Pen family enterprise, it would be odd to argue that preserving democracy requires this to remain the case.
Moreover, showing leniency to popular politicians who have broken the law can have dire consequences for democracy as such. After all, it would signal that such figures are above the law, as in the United States, where the Supreme Court has declared President Donald Trump immune from prosecution for any official act.
While some observers assumed that Trump would be chastened by his many narrow legal escapes (not to mention two impeachments), he was emboldened. His second term has already been a parade of lawlessness, reflecting his belief that he is the law. Worse, many voters will infer that Trump’s behavior is generally fine because elite institutions like the Supreme Court have effectively said so.
Leniency for popular politicians also risks creating a perverse incentive to enter politics to avoid encounters with the courts. Silvio Berlusconi ran for office in the 1990s partly because he knew that he was being investigated for bribery and tax fraud. For two decades thereafter, he managed to shield himself from the law. (In 2013, he was convicted of tax fraud, barred from holding office for two years, and sentenced to perform community service.)
Those skeptical of deploying the law properly against populist leaders also claim that convictions will allow such politicians to present themselves as martyrs — possibly boosting their popularity. Le Pen now declares herself the victim of a “witch hunt” by elites who wish for her “political death.”
But populist politicians always claim to be victims of corrupt liberal elites who have ignored “the people” and sought to sideline their authentic representatives. A conviction can of course be portrayed to a populist’s supporters as evidence of an elite conspiracy. But the narrative is created not by court cases, but by the populists.
One also might worry that verdicts against self-declared antiestablishment politicians could undermine confidence in the judiciary and, in this case, strengthen a longstanding French aversion to “government by judges.” But here, too, the critics have it backward: populists routinely attack independent judges as “enemies of the people.”
Rather than making unforced concessions when it comes to the rule of law, politicians — as well as legal professionals, journalists and academics — should make the case that impartial courts are crucial both for serving justice and for sustaining what the judges in Paris called a “democratic public order.”
Jan-Werner Mueller
Jan-Werner Mueller, professor of politics at Princeton University, is the author, most recently, of Democracy Rules. The views expressed here are the writer's own. -- Ed.
(Project Syndicate)
