South Korea Has a Warning About Donald Trump’s Trial

The criminal trial of former President Donald Trump is an unprecedented moment for the U.S. — but across the globe, South Korea has already convicted its fair share of former presidents.

Three of the last four presidents were investigated by prosecutors over the span of a decade. Roh Moo-hyun, from the liberal party, died of suicide while he and his close circle were investigated for bribery. Lee Myung-bak and Park Geun-hye were convicted and sentenced to prison over bribery and abuse of power. Yoon Suk Yeol, the current president of South Korea, played a key role in the indictment of Park Geun-hye as prosecutor general at the time, and his achievement catapulted him to the stardom he needed to run for the presidency.

With the U.S. now facing its first criminal trial of a former president, I called up Nathan Park, a fellow at the foreign-policy focused Quincy Institute and a left-leaning Korea watcher, to ask how the U.S. can learn from Korea’s long history of locking up past leaders. Park, who is critical of the current Yoon administration, discussed the consequences of prosecuting leaders, how to prevent it from becoming a political weapon and why a future president should consider pardoning Trump if he does get convicted.

Once lauded as victories for democracy over corruption, the prosecutions have now thrust Korea into a new and paranoid era, with government officials riddled with fears of lawsuits and criminal charges. Even worse, it makes lawmakers afraid to admit fault for fear of their apologies being used against them in court.

“On a very ground level … you can sense it from government officials that they’re freaking terrified to do anything outside of the manual,” Park says. “Everything they do is extremely defensive.”

This interview has been edited for length and clarity.

Park Geun-hye’s impeachment and conviction was seen as a democratic win at the time — but now it seems like we’re stuck in a loop of non-stop prosecution of the opposition party. What have the political implications been like since her sentencing?

What happened afterward is pretty unique and pretty wild. What it did was it legalized politics. Not legalized as in going from illegal to legal, but legalized as in politics became sort of lawfare. It became more about, Did you break the law? Did you not? Can you prove this in court? Can you not? And the people who are the most powerful in this lawfare are the prosecutors. What ended up happening is that the Prosecutor General — Yoon Suk Yeol — the most powerful prosecutor of them all, became the president on the strength of that. He became a political star first by prosecuting Park Geun-hye.

On a very ground level, I have been feeling — just because I do a lot of work and business in Korea — you can sense it from government officials that they’re freaking terrified to do anything outside of the manual, and everything they do is extremely defensive. Korean government used to be a very, very efficient thing relative to other governments. Now it’s still more efficient than other governments, but you can feel that the gears are slowing down a little and a lot of it is the fact that even minor officials are completely terrified of doing something that is outside of the manual and potentially prosecuted for some reason or another.

The other thing that happened is that Yoon Suk Yeol is also afraid of the same thing happening to him. So the other side of the coin is that you end up having an administration that never compromises and never admits any fault. And I think you really see that in the aftermath of the Itaweon disaster, which was this really unbelievably awful thing. And what happens is nobody apologizes, nobody resigns. They just generically say that, “Oh, we’re sorry this happened.” This is all sort of like the litigious mindset where the moment you admit fault you feel like you’re exposing yourself to a potential liability.

Is that because once you do expose yourself to liability, people will try to prosecute you and use that against you in court? 

Yeah, because now, instead of normal politics, the expectation is that everything will be reduced to a lawsuit and indictment. So in that sense, one could argue that prosecuting leaders was a negative.

Do you think that politicians see prosecution as an opportunity now? Do they see the prosecution of a president as an opportunity to gain strength?

Oh, absolutely. In Yoon’s case, it was absolutely the direct motivation. He leveraged these prosecutions to become a political star himself.

I have a hard time imagining that this could happen in the U.S., just because of the way our justice system is structured. But imagine someone making a gubernatorial run or presidential run on the strength of being a strident opponent or prosecutor of Trump.

Or you could do it on the other side too: Someone who decides that, OK, this is going to be my star moment, and I’m going to be the next star Republican politician and try to leverage it that way.

We’ve now seen three former Korean presidents out of four be investigated. One died of suicide, and the other two were sentenced to prison. How concerned are you that the process has become politicized and used as a tool of retaliation?

I think there is a right way and wrong way of doing this. The short version is that if the legal process is rigorous and the crime seems very plain and obvious, then there is more legitimacy behind it. And the more it seems like a fishing expedition, the more it seems like, “OK, we struck out on this theory. So let’s try another theory. And another theory, another theory.” If it looks like that, that undermines democracy, because it’s starting to look like persecution.

And I think that’s what really distinguished the investigation of Roh Moo-hyun versus the investigation of Park Geun-hye and Lee Myung-bak. The crimes of Park Geun-hye and Lee Myung-bak were really obvious. They weren’t hard to understand. And it was pretty well established what they did in terms of a paper trail. Whereas the Roh Moo-hyun case is more like, there really wasn’t any evidence connecting him directly to any bribes. And it was fairly clear that it was driven by sensationalism. And it was driven by a desire to humiliate Roh Moo-hyun.

People are not stupid, they can sense if a prosecution is driven by legitimate needs versus a desire to target somebody. And the difference is when the legal process is done in a rigorous way versus sort of this sensationalistic fishing expedition sort of way.

How about the post-Park Geun-hye era? I know Yoon at one point wanted to investigate the past Moon administration and has been cracking down on Lee Jae-myung, his main political rival. And in recent months, there also have been murmurs of wanting to impeach Yoon by his opponents. Do you think there’s more of a weaponization and distrust against prosecutions of politicians since Park’s conviction? 

I think it’s still in flux. It’s kind of interesting, but I do think they still trust the legal system. And when someone is vindicated, then they take it seriously. Like, for example, Lee Jae-myung was in danger of getting arrested pretrial, and the judge denied the arrest warrant. And that was a big moment because in people’s minds, that sort of indicated that the criminal case against Lee Jae-myung was pretty weak. Whenever that kind of news plays out, people see that as the legal system working, it’s sorting out the people who committed crime versus people who did not.

Why do you think the Korean public still has so much trust in the courts, despite all the political chaos that the prosecutions of presidents might cause?

When you look at just the straight-on level of trust in government in OECD surveys, South Korea actually scores really low, much lower than the U.S.

My basic thesis is this: Koreans overall have much lower trust in government than Americans would. But I think that lower trust is actually the flipside of high expectations. Koreans have a high standard of what the government is supposed to do. And when you meet that standard, I think Koreans will lend a great deal of trust, regardless of the fact that their baseline of trust is rather low. I think that’s what goes on with Koreans.

And I think that works the same way as I described: If the process of prosecuting a president seems vindictive and without real standards, then it will be seen as a type of persecution. If the process of prosecuting the president meets the high standard that people set, then people accept the fact that this is how justice is carried out.

Donald Trump is on trial now. How does the U.S. avoid the politicization of prosecutions that has happened in South Korea?

I think the process should be rigorous, and there needs to be a clear distinction between people who have threatened democracy versus other categories of crimes and violations. Basically, I think that there’s a danger in this “whatabout-ism” in the sense that the attempt to end democracy on January 6 is seen as the same thing as Hunter Biden’s laptop. When you start giving both sides the same coverage when they belong to different categories altogether, I think that is what invites the legalization of politics. It incentivizes people to dig up whatever small little dirt you can dig up and say, “No, you're just as bad as we are.” So I think there needs to be a clear denunciation and clear demarcation of what is so truly offensive that it merits prosecution against the president versus not.

Who should we trust to make that distinction though? 

Now I’m traveling in a more idealistic direction, but my general sense is that people are not dumb and an engaged and civil society can see this through. They can understand what’s real and what’s not as long as they’re fed good information.

What should the U.S. learn from South Korea as it embarks on the prosecution of a former president? 

I think the prosecution of Trump has been handled well. Moving cautiously and making sure that everything as a legal matter is perfectly tied out — I think it’s very good.

In my view, it seems pretty clear that Trump’s side is the one that’s putting on this clown show. And on the other side, the prosecution is conducting themselves with professionalism. That really will be the most important thing.

The same thing happened with Park Geun-hye. Park Geun-hye’s attorneys were clown shows. Rather than trying to make a serious argument, they would show up draped in a flag and give a long speech about how everybody’s communist. She already lost credibility as a general matter, but she could not — much like Trump — get good, professional attorneys to represent her. So in the eyes of the public, she lost pretty quickly.

I also want to touch upon one thing: The fact that Korea prosecutes a lot of presidents is usually coupled with the fact that they’re pretty quickly pardoned in just a few years. There are differing opinions on this, but I sort of fall on the side that maybe it’s not such a terrible thing. There is sort of a ritualistic aspect to the law, right? You go through the process of going through a trial, being sentenced and going to prison like everyone else, and you’re not above the law. You go through this process to feel some level of catharsis but you don’t permanently alienate the people who supported that president by giving them a pardon and not letting them die in prison basically.

Is that something the U.S. should emulate? 

It is. It wouldn’t be so terrible, especially because U.S. criminal law is relatively unique in the sense that the penalties are incredibly harsh. This is a very strong criticism I have as a criminal lawyer, that everything in the U.S. is punished with way too much prison sentence. So especially with Trump, if some of these charges stick, I don’t see him getting anything less than like a 20-year term because they’re serious charges. He’s not a young man, obviously that means he’ll die in prison. And I don’t think you want to go down that road. It would be fine for him to, for example, be convicted, maybe spend three to four years in prison. If his health deteriorates, maybe pardon him and let him at least have his final days look dignified.

And that’s what South Korea did with Lee Myung-bak and Park Geun-hye, right? 

That is definitely what they did, especially with Park Geun-hye. Park Geun-hye’s health was genuinely bad and she also had genuine fans that if she should die in prison, she would have been a martyr. I mean, she's already a martyr a little bit but even more so than now.