Published by The Lawfare Institute
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As politicians and prosecutors in the United States struggle with the question of how to hold Donald Trump accountable in his post-presidential life, there’s an example they might look to across the Atlantic: France. Specifically, the legal plight of former French President Nicolas Sarkozy.
In October 2020, prosecutors charged Sarkozy for his conduct in an alleged campaign finance scheme involving former Libyan dictator Moammar Gadhafi. And just this week, Sarkozy was convicted on corruption and influence peddling charges in a completely different corruption case. Like the American ex-president, Sarkozy faces a morass of legal problems—so many that anyone who learned Sarkozy had been convicted in a criminal case could be forgiven for asking: “Which one?”
It’s usually a big deal when a former president of a major European democracy gets convicted of criminal charges—and this is no exception. Sarkozy’s political mentor, Jacques Chirac, blazed the trail for post-presidential convictions in France, but Chirac’s ill health muted the significance of his in absentia conviction. Sarkozy is still spry and combative—but now, in all likelihood, politically dead.
On March 1, a Parisian court convicted the former French president on corruption and influence peddling charges and sentenced him to three years in prison, two on a suspended sentence. Sarkozy doesn’t have to decamp to prison just yet. He can, and will, appeal his conviction. First he’ll plead his case to a domestic appellate court, but he has said that “perhaps it will be necessary to take this battle to the European Court of Human Rights.” That process is unlikely to break any land-speed records. And even if Sarkozy loses the appeal, he can petition to serve out his sentence from the comfort of his own home with an electronic tracker. Whether or not “President Bling Bling” ever dons a monitoring bracelet, the conviction puts a damper on any ambitions he might have had for France’s 2022 presidential ticket.
However significant Sarkozy’s conviction might be, the whole thing is also pretty confusing. The conduct for which the court convicted Sarkozy belongs to a three-pack of scandals—“l’affaire des écoutes,” “l’affaire Bygmalion,” and “l’affaire Gaddafi”—that have kept Sarkozy in and out of French courts for the better part of a decade. All three cases have links to different campaign finance shenanigans. Add to that Sarkozy’s collection of other major scandals (Le Monde counts 12 in total) and the complexities of French criminal procedure, and everything can be a bit tough to parse. So, what exactly is going on?
The two blow-ups not at issue here are l’affaire Bygmalion and l’affaire Gadaffi. Both directly concern alleged campaign finance snafus: Gaddafi for Sarkozy’s 2007 presidential run, and Bygmalion, the failed 2012 reelection bid. France has a strict 22.5 million euro cap on presidential campaign spending, and Sarkozy’s reelection tab in 2012 allegedly came in over budget. His center-right party, now called Les Republicains, reportedly came up with a creative accounting solution: cajole Bygmalion, the public relations firm hired by the Sarkozy campaign, into sending an 18 million euro bill to the party, rather than the campaign itself.
The scandal began as a scoop that the head of the party shuttled a major campaign contract to some of his pals at Bygmalion, and the story blossomed from there. Sarkozy will stand trial starting on March 17 in that case, charged with overshooting the spending limit. It’s not clear how Sarkozy will fare at the Bygmalion trial, though some French legal analysts have noted that Sarkozy might be able to argue he wasn’t kept abreast of his campaign’s financing woes.
Fudging the reelection books is bad, but taking suitcases of campaign cash from the Gadaffi family is much worse. L’affaire Gadaffi centers on the head-turning allegation, first reported in 2012 by the investigative outlet Mediapart, that Sarkozy’s 2007 campaign took 50 million euros from the Gadaffis in order to finance Sarkozy’s first run for president. The dust-up has all the makings of a gimmicky spy movie—shady real estate deals, arms dealers, document forgery, art buys and literal suitcases of cash.
French prosecutors opened an investigation into the incident in 2013, and the case is now managed by France’s national financial crimes prosecutor’s office. Prosecutors and reporters have dug up more and more evidence as the case has worn on, and Sarkozy now faces four charges in connection with the Gadhafi mess. The latest charge, filed in November, is the most ominous for Sarkozy: “association des malfaiteurs,” roughly equivalent to a criminal conspiracy charge. The Washington Post described it as “the most serious indictment a former head of state has faced in the history of France’s Fifth Republic, the governing system established in 1958.”
It’s a major charge, but it is worth noting that French criminal procedure works differently than its U.S. analogue. The charging stage in France comes earlier in the criminal process than it does here. As I wrote about the Gadhafi case in November, “If someone gets ‘charged’ in France, it doesn’t necessarily mean that he or she will stand trial. … [B]eing ‘charged’ really means being named as a target of a formal investigation.”
Now, it’s time to dive into the latest Sarkozy news: his conviction in a criminal case linked to l’affaire des écoutes.
This scandal traces its roots, once again, to Sarkozy’s campaign finance woes during the 2007 campaign. It wasn’t just Libyan money that worried French prosecutors; in March 2013, investigators started looking into allegations that Sarkozy also took illicit contributions from L’Oreal Paris heiress Liliane Bettencourt, the richest woman in France.
Sarkozy’s campaign misdeeds begat more legal problems as the (former) president began digging for information about what prosecutors were up to. So, Sarkozy and his lawyer Thierry Herzog hatched a plan—a quid pro quo, in fact. Quid: a magistrate judge would pass Sarkozy details about the investigation. Quo: Sarkozy would throw his political weight around to get the magistrate a swanky job in Monaco.
Prosecutors stumbled on the plan during the probe into l’affaire Gaddaffi. Le Monde reported in 2014 that French investigators had wiretapped Sarkozy and two close aides. Sarkozy became so concerned about the wiretaps that he bought a second phone—but investigators quickly realized that Sarkozy had bought a burner phone and began tapping that one, too. The investigative outlet Mediapart published a major scoop in March 2014: “Nicholas Sarkozy and his lawyer, M. Thierry Herzog, orchestrated in the beginning of this year a veritable plot against the institution of the judiciary.” Investigators in the Gadhafi case had captured recordings of Sarkozy’s calls with Herzog.
L’affaire des écoutes—the wiretapping scandal—is also known as “l’affaire Paul Bismuth.” A paranoid Sarkozy had begun using the moniker “Paul Bismuth” in an attempt to tiptoe around the surveillance and buy his spare phone. (The pseudonym wasn’t a reference to anything profound. “Bismuth” is the surname of one of Herzog’s old classmates.) The recordings capture Herzog as a conduit between Sarkozy and the magistrate judge. In a February 2014 call, for example, Herzog reported back to Sarkozy of the judge: “He mentioned something about Monaco.” Sarkozy interjects, “I will help him.” But Sarkozy never followed through, and the judge never got that job in Monaco.
Sarkozy didn’t get in any trouble for the Bettencourt donation itself, but he was charged in connection with his activities as Paul Bismuth. Prosecutors charged Sarkozy, Herzog and the judge, Gilbert Azibert, with corruption and influence peddling. Herzog and Azibert also faced a less serious charge related to “revealing secret information” (“violation du secret professionnel”). The influence peddling charge against Sarkozy involves a custodian of public authority soliciting or accepting some benefit in exchange for an act that he can undertake as a function of his position or in exchange for his influence, regardless of whether that influence is “real” or merely “presumed.”
Sarkozy’s trial in the case kicked off on Nov. 23, 2020. The morning the case began, the French newspaper Libération ran Sarkozy’s face on the front page, next to the headline: “Bismuth, please rise.” Unlike Chirac, Sarkozy attended the trial, earning him the unglamorous distinction of being the first French president to attend his own trial since the 1945 treason trial of Philippe Pétain, prime minister of France turned head of state of Vichy France. France 24 reported that Sarkozy smiled through his mask and schmoozed with prosecutors during recesses. But the former president vigorously asserted his innocence. In the weeks leading up to the trial, Sarkozy firmly told reporters, “I am not a crook”—a perhaps unintentional echo of Richard Nixon.
Sarkozy put forth a collection of defenses. During his pretrial interviews with investigators, he was insistent that there “was not a single cent at play” in the exchanges with Azibert. Lawyers’ associations and others sympathetic to Herzog have also long denounced the surveillance as an attack on attorney-client privilege, comparing the wiretaps to “drift net” fishing. At trial, Sarkozy argued that the conversations between him and Herzog didn’t amount to a “pact of corruption”—the calls were just “chit-chat” between two “brothers.” He conceded that he considered rendering a “service” for Herzog, who had spoken to him about Herzog’s friend Gilbert Azibert. But this wasn’t anything out of the ordinary, Sarkozy said; he’d had similar exchanges “a hundred times in his life.” And either way, he and Herzog didn’t even come close to actually doing anything beyond just chatting.
Prosecutors saw it otherwise. The case was run by France’s national financial crimes office, whose agency head accompanied the line prosecutors at trial. “The importance of the matter” justified his presence at trial, he argued. Prosecutors maintained that Sarkozy was caught up in a “pact of corruption.” Per the letter of the law, it doesn’t matter whether or not the quid pro quo yielded anything tangible.
The prosecution also tried to shoot down Sarkozy’s protestations that investigators had been overzealous in their pursuit of him. As France 24 has explained, Sarkozy had long maintained that “the French judiciary have been waging a vendetta against him as payback for his attempts to limit judges’ powers and telling them they were being too soft on delinquents.” (French judges and prosecutors both belong to the judiciary; the national financial crimes office includes both prosecutors and investigating judges.) The head of the financial crimes office defended the impartiality of the probe and hinted at some hypocrisy on Sarkozy’s behalf: “Like anyone in our country, a former head of state has rights which should be respected,” but Sarkozy also ought to respect his presidential role as “the guarantor of the judiciary” and to “respect the law.” Put another way, it’s a bit rich to drone on about the independence of the judiciary when you’re on trial for attempting to bribe a judge. Prosecutors recommended that Sarkozy, Herzog and Azibert each get four years in prison, two on a suspended sentence.
On March 1, the judges in the case convicted the trio and sentenced them to three years in prison with two on suspended sentences. The presiding judge, Christine Mée, mentioned that the remaining one year can be served out via electronic monitoring bracelet. According to French reporter Vincent Vantighem, Mée told the court that the body of evidence proves the existence of the pact of corruption. She lambasted Sarkozy’s behavior: The facts of the case “are particularly serious having been committed by a former President of the Republic, who was the guarantor of the independence of the judiciary.” Sarkozy’s plot was an “attack on public confidence.” He “made use of his stature and the political connections that he had built so that he could reward a judge for having served his personal interest.”
French newspapers called the decision a “scathing ruling” and “a thunderbolt[.]” Sarkozy’s lawyer dismissed it as “totally unfounded and unjustified,” saying that her client is “calm but determined in the pursuit of demonstrating his innocence.” Sarkozy has also gone on a media tour since his conviction. He gave a front-page interview with the right-leaning Le Figaro, telling the paper that the prosecution neglected to offer up any proof, “just a bunch of circumstantial evidence.” This evening, he will have a prime-time TV news slot.
The French presidency is perhaps closer to the American model of the office than it is to other European heads of state. As I’ve written previously, “Sarkozy—like his predecessors and successors—was elected directly by the people, not installed by a legislative body;” France has both a parliament and a directly elected president. Plus, as I wrote, “former presidents get special treatment in France: A departed président de la république automatically gets a seat on France’s constitutional court.” But Sarkozy’s litany of criminal problems has exposed significant cracks in the tradition of presidential reverence in France. Chirac was also convicted, but he was 79 years old and in ill health at the time of his trial, not to mention that the charges were for conduct completely unrelated to his time in the presidency. Sarkozy has been the subject of incessant criminal probes, many of which relate directly to presidential campaign misdeeds. The prosecutorial zealousness hints that the unwritten protection conferred on France’s ex-presidents has eroded.
The decline in the societal lionization of the office might have something to do with Sarkozy’s behavior while he occupied it. Sarkozy had what the New York Times referred to as a “stormy” end to his second marriage while entering office and then “almost immediate[ly]” married a celebrity model and singer; he stormed off the set of an interview with CBS correspondent Leslie Stahl when she pressed him on his marital woes; and he famously told a man who refused to shake his hand to “get lost, dumb ass.” He was charismatic and sharp, but also extravagant and not traditionally presidential. His successor, Francois Hollande, tried to course-correct the presidency and made a big deal out of being “Monsieur Normal.” But this might have further degraded the status of the office, bringing the presidency back down to earth.
Unlike Trump, the bad behavior for which Sarkozy has been convicted came after he left the presidency. L’affaire Gaddafi and l’affaire Bygmalion concern pre-office and mid-office behavior, respectively. It’s very much an open question how much Sarkozy knew about either scandal and whether he will ever be convicted in either case. But l’affaire des écoutes is different; Sarkozy became Paul Bismuth only after he departed the Elysee Palace. If Donald Trump were to commit a crime today, the hand-wringing about the propriety of prosecution would likely be less than it is for bad behavior during his campaign and the presidency.