On Marine Le Pen’s Sentence

Is It to the People to Decide if Someone is Fit to Candidate?

Preliminary Note: What follows is a brief political commentary. See it as an application of yesterday’s essay.

French far-right political leader and member of parliament, Marine Le Pen, has been found guilty with her party of having organized a systematic diversion of European Union funds to pay Rassemblement National’s political staff. She has been sentenced to a fine of 100,000 euros, 4 years of prison and, more controversially, a 5-year ban from running for office with immediate effect. Though Le Pen will appeal and a new trial will take place, the delay of the French judicial system indicates that the second trial will not take place before 2026, with the serious possibility that the judgment will be communicated only a few months before the 2027 Presidential elections. In practice, the court’s decision is likely to mean that Le Pen will be banned from running in 2027.

I don’t want to comment on the decision itself. I will just insist on the fact that there is barely any doubt that Le Pen and her party diverted more than 4 million EU funds to pay political staff working for the party without having put a foot in the European Parliament ever. This practice was systematized and dates back before Le Pen took the leadership of the party, while doing nothing to end it, until the President of the European Parliament made a legal complaint in 2016. Finally, there is strong evidence that Le Pen and her acolytes (24 officials in total) chose to lie at the trial instead of recognizing the facts.

Since Monday, the big question that is agitating all the French media and political ecosystem is whether the 5-year ban with immediate effect (that is, starting to be effective before the Appeal court confirms or not the decision) is justified. Based on what I have heard from people more competent than me on this, there is no doubt that it conforms to the current law. To be clear, the law leaves it at the discretion of the judge to decide whether or not the ban should be with immediate effect. The judge is entitled to opt for an immediate effect, in particular if they estimate that there is a significant chance that the convicted will resume their fraudulent practice. This law was adopted by the Parliament in 2016, with the support of Le Pen’s party.

One can argue that the decision is politically wrong, besides the legal aspect. As The Economist wrote yesterday:

“The court’s independence should be respected. Nonetheless, although blocking Ms Le Pen from running for president is perfectly legal, it risks undermining the legitimacy of the next election. That is the wrong trade-off for France. If an appeals court can shorten the ban and allow her to campaign in 2027, it should…

Most countries have laws that can block candidates, but mainly for grave attacks on democracy itself. After the Maidan revolution Ukraine barred officials of Viktor Yanukovych’s corrupt, Russian-backed government, and after its civil war America banned those who had participated in insurrection. Jair Bolsonaro, Brazil’s ex-president, was disqualified for contesting the validity of the election that unseated him in 2022. The crimes of which Ms Le Pen has been convicted are serious, but not of the same order. France’s harsh sentence in this case limits the choice of citizens who are capable of judging for themselves who should get their vote. By creating a mechanism that politicians might be thought to have co-opted, the law encourages talk of conspiracy—especially if, like Ms Le Pen, the barred politician belongs to a party that is founded upon a suspicion of the elites…

But the notion that sentences should take no account of their consequences for politics or governance is misguided. The courts should and do weigh a range of factors, such as their impact on the legitimacy of institutions, including elections. In New York in January, Donald Trump received no punishment for the felonies of which he had been convicted because the American people were deemed to have a right to an unencumbered president. With Ms Le Pen, the French court leant the other way, saying that it had imposed a longer sentence because of the harm she might do in high office.”

Let me focus on the sentence in bold and explain why I think this is a mistake. Polls indicate that a slight majority (53%) of French people consider that Le Pen has been treated fairly and impartially, not based on political motivations. As we might expect, opinions significantly diverge depending on respondents’ political views, as illustrated below (source):

Without any ambiguity, the closer one is to the RN’s views on the political spectrum, the more likely one is to judge that Le Pen has been treated unfairly, with underlying political motivations. This just reflects the unsurprising fact that people are unable or unwilling to evaluate the justification of the court’s sentence in an impartial way. In this context, why should we grant any significance to their judgments? The Economist is wrong that a democracy should not limit “the choice of citizens who are capable of judging for themselves who should get their vote.” In a constitutional democracy, there are rules that permit but also constrain the expression of the majoritarian will —as I explained in yesterday’s essay. The definition of rules and their implementation should be as impartial as it can possibly be. Political motivations and biases are unproblematic as long as they take place within the framework that has been established along a valid and legitimate procedure. This is true in general, and there is no reason why this should not be the case here. In a constitutional democracy, it is not up to the People to decide, by a majority vote, if one can run for office. It is settled by rules and by the persons who are in charge of making sure that they are followed.

Now, we may share the concern regarding the political consequences of the decision. There is no doubt that the far-right will use it to strengthen its narrative about the elites (“le système” as they say) trying to silence the voice of the People. This is the typical populist rhetoric and, sadly, we know that it resonates in many of our fellow citizens’ ears. That’s not a reason to give up on our liberal principles, however. Fear is never good guidance.

The RN and its political view will, in any case have a say in the next Presidential elections, contrary to what Le Pen and her acolytes keep on repeating since Monday. A candidate for the RN will not be barred from running. Of course, Le Pen has the right to a second trial, and many (including me) agree that it would be best if it could take place soon enough to avoid giving the far-right additional reasons for victimization. But, in the midst of all this agitation, we should not forget a basic fact. All this is happening because, at the bottom, a political party led by a political personality aiming at the highest function has been misbehaving with public money. This is serious and doubles down on the fact that part of the rhetoric of this very party for decades has been to attack the supposed “corruption” of the elite. For many citizens, this is not serious enough to override their ideological commitment. Let’s see what the Appeal court decides. But whatever people may think, in the democratic game you have to play by the rules. If not, there is a good case to put you on the bench.