On October 21, 2025, images circulated of former French President Nicolas Sarkozy leaving his Paris residence to begin serving a prison sentence for his conviction in a 2007 campaign financing scandal. The image was a striking one, and although the trial concerned acts committed before his presidency, the episode highlights how judicial accountability of political leaders remains one of the most sensitive and contested questions in constitutional democracies. In presidential and semi-presidential systems, determining whether – and how – a presidential figure may be held criminally responsible tests the fragile balance between the rule of law and political legitimacy. France provides a particularly revealing case study, yet similar tensions have emerged elsewhere: the prosecutions of Donald Trump in the United States and Jair Bolsonaro in Brazil likewise raise the issue of whether criminal proceedings against former presidents may lead to their disqualification from future elections.

These developments inspire both hope and concern – hope that they may strengthen the principle that no one stands above the law, and concern that judicial intervention might reshape the democratic arena through its timing and impact on electoral competition, thereby fueling populist backlash. Ultimately, they pose a fundamental question: can courts hold politicians accountable without themselves making political judgments?

The April 2024 conviction of far-right leader Marine Le Pen — widely seen as a leading contender in the 2027 presidential election — offers an even sharper illustration of this dilemma. The Paris Criminal Court found her guilty of misusing European parliamentary funds by employing party staff with money intended for Members of the European Parliament’s assistants. She was sentenced to a prison term, a fine, and five years of ineligibility from public office, the last, a sanction that took immediate effect. Although the ruling is under appeal, its potential consequences are far-reaching: if upheld, it could profoundly alter the landscape of French democracy for years to come. Never since the establishment of the Fifth Republic has a judicial ruling so directly influenced the horizon of democratic choice.

What unites the two French cases, beyond the fact that both involve courts judging presidential figures, is the immediate enforcement of their sentences, both executed without waiting for appeal. While such provisional execution rests on established precedent in French law, it was not the courts’ only possible course of action. For this reason, both rulings have reignited debate over the legitimate limits of judicial intervention in electoral politics.

The question is not new. Over the past decade, France has witnessed a steady normalization of judicial scrutiny of its highest officials, including former President Jacques Chirac, convicted in 2011 for embezzlement. What was once an unwritten norm of political deference toward former heads of state has given way to a new culture of legal accountability. This shift has been strengthened by a growing public demand for the exemplarité of public officials — that is, the expectation that they display moral and civic conduct worthy of serving as a model for others — following a series of scandals in the 2010s. It was in this context that the 2016 law, enthusiastically supported at the time by Marine Le Pen herself, made ineligibility a mandatory sanction in cases of corruption and misuse of public funds.

By contrast, the United States has rarely done so — with the notable exception of Nixon — and the norm of presidential accountability has weakened amid today’s intense ideological and affective polarization. The multiple indictments of former President Trump — for election obstruction, mishandling of classified documents, and election-related racketeering — have thus exposed deep tensions between law and politics, raising questions about the limits of presidential immunity and the judiciary’s ability to remain impartial in a partisan climate. In both countries, courts are increasingly expected to step into a role that political institutions have struggled to fulfill: enforcing ethical and legal responsibility at the highest level, a development that underscores the uneasy transformation of the judiciary into a guardian not only of legality but also of political viability.

The democratic significance of these cases lies in their ambivalence. On one side, they embody a victory for the rule of law - the affirmation that no public authority, however high, is beyond accountability. On the other, when judicial decisions coincide with electoral cycles or determine who may compete for office, the boundary between legal responsibility and political exclusion becomes dangerously blurred. In such instances, democracy may be defended by means that also constrain it.

One possible response to this democratic dilemma is to strengthen the legitimacy of judicial intervention. As Richard Fallon suggests, legitimacy has three dimensions: legal, sociological, and moral or political.

Legal legitimacy depends on the quality and depth of judicial reasoning, with a higher standard of justification required when judges exercise broader discretion. In both the Le Pen and Sarkozy cases, the courts offered detailed and well-reasoned explanations for their decisions to order immediate enforcement. Yet the innovative use of the concept of “democratic public order” to justify Le Pen’s immediate ineligibility illustrates a form of judicial creativity aimed at protecting democracy from actors perceived as threatening its core values — while also revealing the inherent paradoxes of militant democracy, a contested model based on the idea that certain democratic freedoms may need to be legally constrained in order to safeguard democracy from internal threats.

A similar line of reasoning appeared in Sarkozy’s case, though more unexpectedly, as he was not seeking public office. The court nonetheless invoked the exemplarity of public officials, while insisting that the judgment concerned the acts of a private citizen. Here, the judicial argument appears weakest: by stretching legal reasoning to assert moral authority, the courts risk undermining their sociological legitimacy — that is, public confidence in their impartiality and restraint.

Both judgments are far from unjustified. On the contrary, they display an exceptional effort of reasoning and pedagogy — remarkable in the French context, where judicial style is often characterized by brevity and formalism (though less so in trial courts). They also stand out for their innovation and audacity, reflecting a shift from a strictly criminal law rationale toward a broader democratic justification. In that evolution lies both their strength and their fragility in terms of legitimacy.

Ultimately, the judicial accountability of presidential figures should be neither uncritically celebrated nor dismissed as judicial overreach. Democracy matures not when presidents are shielded from the law, but when institutions can hold them accountable without forfeiting public trust. Only under such conditions can judicial responsibility serve to reinforce, rather than destabilize, the democratic order.