Prosecuting an Authoritarian ex-President

by Varun Gauri

An autocratic president, whom the opposition blames for thousands of deaths, faces a referendum on his rule. The majority rejects him in the election, but around 45% vote for him to remain in office. The would-be permanent dictator begrudgingly departs, yet he retains a fanatically loyal following, especially among the religious right, some business leaders, the security establishment, and voters scared of socialism. Conservative politicians and radical rightists fear his influence, permitting him and his acolytes to remain powerful voices in national politics for many years. That hold on the political right, alongside structural impediments in the national constitution, the opinions of the judges he appointed, and the continuity in office of his regime functionaries make it is impossible for the country to address social and economic inequality and consolidate democratic reform.

A forecast of the United States post-Trump? Perhaps.

A description of Chile post-Pinochet? Definitely.

This year, thirty-one years after Pinochet left office, fifteen years after he died, Chile will hold elections for a constitutional convention to replace the military Constitution of 1980, even though the government is led by a president whose rightist party once supported Pinochet. Following the latest in a series of student-led protests, the country may at last have moved on from “moving on,” now aiming to redress inequality and entrench democracy more deeply in its political institutions.

What took so long?

Pinochet led a regime that killed three thousand people, tortured forty thousand, and exiled many more. In the first democratic decade, most Chileans expressed disapproval of his regime, and the country’s elections were free and fair, yet little action was taken. It is hard for political systems to weaken the grip of former rulers. The Chile scholar Alan Angell notes that “dictators are rarely – if ever – brought to justice unless there is foreign intervention.” They typically leave office with domestic supporters entrenched in the state and political institutions. There are too many veto points, it’s hard to find consensus, people want to forget the whole episode. As a result, external actors must often lead.

In Chile, a precipitating event was Pinochet’s indictment for human rights abuses, under the principle of universal jurisdiction, by a Spanish judge in 1988. Pinochet, recovering from back surgery in a London hospital, was arrested by Scotland Yard. He was released to travel back to Chile in 2000, where he arrived to the acclaim of supporters.  The Chilean Congress stripped him of the title “senator for life,” conferred by the old constitution, but in a center-right compromise, granted him immunity from prosecution, as well as a pension. The Chilean courts then overruled, stripping Pinochet of various layers of immunity conferred by the military and democratic regimes. Despite his advancing age and medical conditions, Pinochet was charged with several crimes in the succeeding years.

Perhaps as important as the court cases, these actions triggered a broader reassessment of Pinochet’s legacy. The National Commission on Political Imprisonment and Torture Report (the Valech report) of November 2004 produced undeniable evidence of human rights abuses in great detail, horrifying even many former Pinochetistas. The armed forces felt compelled to express remorse for past abuses under Pinochet’s leadership. These gestures and investigations emboldened critics and encouraged further probing. Pinochet and his family members were implicated in a series of corruption, fraud, and illicit enrichment schemes, some involving illegal arms trade, drugs, and embezzlement. Pinochet died in 2006 before standing trial, but all these developments, previously unimaginable, led the right to abandon his political legacy. His decline in standing is the background that enables efforts to redraft the national constitution.

Are there lessons from Chile for arguments about whether and how to prosecute ex-President Trump and his accomplices? Trump did not rule for as long, nor with as much power, as Pinochet. He did not write the national constitution. Nor are his crimes as obvious — his casualties, during the covid crisis, were acts of omission. Trump is also weakened, following the failed insurrection on the Capitol. On the other hand, he (or the movement he represents) retains the loyalty of some 30% of the country. And minority rule, the political circumstances that permit a white nationalist like Trump to assume power, may be especially entrenched in the United States, given the hurdles for constitutional amendment.

The first lesson is that the target is investigation and exposure, not necessarily conviction. Pinochet, like anyone, should have faced consequences for his actions. But to prevent another authoritarian episode, the goal is transparency, bringing every crime, peccadillo, and idiocy to the light of day, especially acts of venal corruption, which are embarrassing in democracies. The idea is to make his followers see how chintzy and vulgar the leader was. The will to authoritarianism fades when the leader is tawdry and pathetic.

Second, investigation begets more investigation. For many years, the public did not know, and few even suspected, that Pinochet’s family would be implicated in drug running, embezzlement from a mother’s group, and petty tax evasion. Investigations in the U.S. and the release of the Panama Papers played an important role, but it’s also true that the human rights indictments against Pinochet emboldened journalists, political leaders, and others to probe further. Ongoing investigations made it safer, and more urgent, for individuals to come forward with new information. The current public record of Trump’s malfeasance is bad enough, but much remains unknown, especially regarding his communications with authoritarian governments and domestic white nationalists and conspiracy theorists. His supporters champion the “America first” rhetoric, but what if that turns out to have been the opposite of the agenda he actually pursued?

Third, external or independent actors are important in the investigation of ex-authoritarians. Courts face different incentives than politicians, who must balance the necessity of democratic compromise against the application of accountability to political rivals. In Chile, foreign pressure, from courts in Spain and the UK, encouraged the government to take further steps to try Pinochet in domestic courts. In the United States, it may be useful to cooperate with international observers investigating democratic breakdown under Trump. There is no reason for small-d democrats in the United States to turn down potential international allies. This may be a shock to the sentiment of American exceptionalism, but it’s far past time for the country to learn from other nations, and lean on them when facing a crisis.

Finally, it’s worth repeating that Chile was unable to initiate deep constitutional reform, and address social and economic inequality, until after the authoritarian fell into disrepute. At that point, his former defenders lost their focal point, had trouble coordinating to defend him, and could not claim that his policies aimed to benefit all citizens equally. The point of political power, for authoritarians and their supporters, is to obtain a disproportionate share of special perks, access to business deals and opportunities, and cold cash. Authoritarianism and economic inequality are two sides of the same coin. Exposing the link can vividly illustrate the ways in which democratic transparency and social and economic inclusion are mutually supporting, and enable the agenda of the parties that advocate both.

(The photo is taken from a blog by Ariel Dorfman, which makes an analogous comparison, and which I found after writing this piece: