Can Argentina Prosecute its Leaders Without Dragging Down its Democracy?

Prosecuting a former leader for corruption is no easy task, but it is one that a lot of countries have had to undertake. In fact, since 1980, roughly half of the world’s nations have seen their former leaders jailed or prosecuted. The vast majority of those cases involved corruption charges.

Argentina has been in this situation quite a few times. Most recently, Cristina Fernández de Kirchner—the country’s ex-president and current vice-president—has been standing trial for having allegedly diverted state funds to a friend through fraudulent public works contracts. This seems like a victory for rule of law. But with the divisiveness and instability that the process has caused, it’s not clear whether the prosecution of Kirchner has done more good than harm. Because this is probably not the last corruption case that Argentinian authorities will bring against a former leader, enforcers should learn from the problems that have arisen from the Kirchner investigation.

Cristina Kirchner has faced many investigations over the years, but this one, which began several years ago, has been especially fraught. Her opponents have celebrated the investigation as a step towards accountability, noting the strong evidence that has come to light since prosecutors first filed the charges. Kirchner’s supporters, on the other hand, have denounced the case as politically-motivated persecution, fueled by those who disagree with Kirchner’s populism and who blame her for the country’s poor economic state. Kirchner has consistently tried to delegitimize the investigation by fueling these accusations of bias.

Whether or not Kirchner is convicted, Argentina’s institutions will have suffered. Protests continue to erupt. Partisan divisions are worsening. Faith in the courts, the executive, and the media are declining, while leaders are undermining judicial independence in order to protect those convicted. There has been an assassination attempt on Kirchner. The divisiveness that this trial has caused continues to damage the integrity of the criminal justice system, and it may provoke the other side to retaliate later on—or worse, to embrace the use of investigations as a political tool. And unless prosecutors succeed in barring Kirchner from office, she could remain in a leadership position for a long time, making the problem ever worse.

Is Argentina doomed to suffer this fate every time it holds its leaders accountable for corruption? While prosecuting such an important official will always carry its risks, there are ways to minimize those risks. The Kirchner case gives us some examples:

  • Enforcers must be much more selective about the cases they bring. Kirchner has been the subject of numerous criminal charges, but not all of them have been very credible. After Kirchner left office, for instance, she was charged for her alleged participation, while in office, in a scheme to fix dollar futures contracts. The evidence, though, was rather weak, and an appeals court later dismissed the case, calling the charges unjustified. Kirchner used this as evidence of politically-motivated persecution, and she derided the judiciary for entertaining the case in the first place. Similarly, a judge later brought treason charges against Kirchner that even Human Rights Watch recognized was “far-fetched.” Pushing these cases, where the evidence was so weak, had given more credence to Kirchner’s allegations of a witch hunt, and undermined the credibility of the stronger cases that have been filed against her.
  • The court of public opinion matters too. Securing a conviction is important, but it is also important for prosecutors and investigators to attend to public perception. Through her savvy media presence, and through her supporters’ disinformation campaigns, Kirchner has been extraordinarily effective at shaping the narrative. Her powerful advocates rushed to her defense on social media as she scored support from foreign leaders. In the future, prosecutors should more regularly and thoroughly respond to attacks on their investigation’s credibility—especially misinformed ones. They should target the same media platforms that leaders like Kirchner use to undermine their investigations. In the current proceedings against Kirchner, when the prosecutors did try to engage the public, they focused mostly on publicizing court processes like hearings and trials. But those processes are highly technical, dense, and untransparent; it’s hard for ordinary citizens to appreciate the stakes of the charges and evidence, and to see the (non-political) reasons why prosecutors made the decisions they did. In the future, enforcers should consider issuing more frequent public statements, including during the investigative phase, and should focus on explaining their reasoning in ways that make major investigative developments more understandable to the average citizen. In those cases where it would be inappropriate for prosecutors and investigators to make such public statements themselves, they should solicit the support of other national leaders and organizations that can provide timely, coordinated, and well-publicized responses to attacks on the investigation.
  • Longer-term judicial reforms are worth the effort and attention. Many Argentinians have a deep distrust of the judiciary. Because investigators and prosecutors depend on the impartiality of the judiciary to legitimize their own efforts, enforcers should propose and advocate for reforms that strengthen faith in the judiciary. There are many proposals out there, including reforming the nomination process to be more transparent, apolitical, and merits-based, curtailing the secretiveness of criminal investigations, improving the efficiency of the trial and appeals processes, creating a new judicial investigative authority, digitizing court documents, promoting diversity in the legal system, and imposing new rules preventing conflicts of interest, nepotism, and clientelism amongst judges. Together, these reforms can help dispel the idea that judges are motivated primarily by politics. This, in turn, would make it harder for the politically powerful defendants to undermine the credibility of the cases against them, because validation by an independent and legitimate judiciary would signal to the public that the accusations were well-founded.

In Argentina’s polarized environment, the trial of Cristina Kirchner was unlikely to be a painless process, even under the best of circumstances. Such cases are never easy. But there are ways to make the prosecution of powerful politicians more credible and more robust. If Argentinian democracy can survive the corruption of its leaders, it must take even greater pains to survive the response.

5 thoughts on “Can Argentina Prosecute its Leaders Without Dragging Down its Democracy?

  1. Thank you for the incredibly thoughtful piece! I really enjoyed how you found concrete policy steps to address this thorny issue. I think the relationship between your suggestions 1 and 2 and 3 and 2 are particularly important. I think avoiding weak charges and strengthening the judicial system would have significant impacts on the court of public opinion.

  2. The tricky part is that having a credible and independent judiciary is easier said than done. As soon as the judiciary gets involved in cases concerning key political figures, it is likely to become controversial.

    One thing that could potentially help is whether the public has a lot of political options to choose from. If supporters of a particular person are able to find someone else who represents the similar political ideology and set of policies, then they might be more willing to accept a guilty verdict, dump that person and move on to the other alternative. But if they think this person alone stands for what they want from a leader, and don’t feel they have other alternatives, then they’re likely to double down in their support and reject any prosecution, no matter how credible, as being politically motivated. This of course is assuming that there really is a credible and fair process of accountability as opposed to one that is partisan and flawed.

    In either case, the issue of accountability in a political context is so closely intertwined with questions of democracy that we really need an inter-disciplinary approach in order to find viable solutions.

  3. This is a very nice and balanced analysis of the situation in Argentina. I think your second suggestion—regarding the need for prosecutors to be transparent and intelligible in their presentation of investigations to the public—is quite important. I must admit, though, that in reading this suggestion I was reminded of the way that public health officials in the U.S. have been treated during the pandemic. Many of them made efforts to provide clear, nontechnical explanations about COVID and the health risks arising from it, but nonetheless these officials were often perceived as partisan and crooked. I suppose in the end you can’t get through to everyone, but I do wonder if the people most in need of these transparent public statements (for example, those spreading misinformation) will even be receptive to them in the first place.

  4. Great piece Micah! I was especially persuaded by your third solution about enacting longer term judicial reforms. Of the many potential options that you have listed to increase public trust in the judiciary, do you think some are likely to be more effective than others?

  5. Fantastic post, Micah, and incredibly timely. As I am sure you are aware, Cristina Kirchner has since been convicted and sentenced to 6 years (https://www.reuters.com/world/americas/argentinas-vp-cristina-kirchner-faces-corruption-trial-verdict-2022-12-06/). The aftermath of her sentence has brought up several subsequent questions, not only regarding the need for judicial reforms and greater prosecutorial transparency as you so eloquently and compellingly articulate here, but also regarding the criminal justice system in Argentina. Indeed, it is highly unlikely Kirchner will actually ever step foot in a prison – not only is she certain to appeal this conviction, but Argentinian law makes it so that prisoners may request to serve out the rest of their term under house arrest once they are 70 years old (and Kirchner is 69 – https://www.theguardian.com/world/2022/dec/07/cristina-fernandez-de-kirchner-argentina-verdict-analysis). Additionally, Kirchner continues to have immunity as vice president, even in spite of this conviction. Such glaring discrepancies in this conviction no doubt further exacerbate public cynicism and lack of faith in the judiciary and in the court’s ability to hold corrupt officials accountable.

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