—Elie Tassel-Maurizi, Emile Noel Post-Doctoral Research Fellow, Jean Monnet Center, NYU School of Law; Junior Lecturer in International Law and Public Law, Paris 1 Panthéon-Sorbonne University, his home institution. Selected as the recipient of the German Kennedy Memorial Fellowship for the 2026-27 academic year at Harvard University’s Minda de Gunzburg Center for European Studies.
Liberal democracies increasingly rely on courts to regulate the conduct of political leaders. Yet every time courts do so successfully, they are accused of interfering with democracy itself. France’s recent Marine Le Pen appeal judgment illustrates this dilemma particularly well.
On 7 July, the Paris Court of Appeal upheld Marine Le Pen’s conviction in the European Parliament embezzlement case, which involved the diversion of €3 million in European funds to finance the ordinary activities of the Rassemblement National rather than parliamentary work. The appellate judgment itself came as little surprise. The first-instance judgment rested on facts that were well known, thoroughly documented, and established during the trial. What remained uncertain was the length of the prison sentence, the period of ineligibility for office, and above all the use of provisional enforcement, which could have prevented Le Pen from running in future elections.
Ultimately, the court imposed a lighter sentence—a reduction that appears to reflect a concern for protecting the voters’ freedom of choice: Le Pen received three years in prison, two of them suspended, and forty-five months of ineligibility, thirty of them suspended. The result is that she remains eligible to run in the next presidential election, particularly as she has announced an appeal before the Supreme Court. By the time the Supreme Court hears the case, she will already have completed the unsuspended portion of her ineligibility period. The prison sentence, which may be served under electronic monitoring, is suspended pending the Supreme Court’s decision on her appeal. The Court has already announced that it will try to issue its decision before the next presidential election, likely in January or February 2027.
Marine Le Pen’s case follows the conviction at first instance of Nicolas Sarkozy in October 2025 over allegations that his 2007 presidential campaign was financed by Muammar Gaddafi’s regime. The appellate decision in that case is expected later this year. Unlike the Le Pen case, however, Sarkozy’s conviction rests on a far more complex factual record involving intermediaries, financial arrangements, and a criminal qualification—criminal conspiracy—that requires proof of intent rather than direct participation in a specific act. In handing down its decision to convict, the trial court relied on a body of converging evidence linking transfers from Gaddafi’s inner circle to Sarkozy’s campaign team.
What has generated the most heated public debate is not the criminal dimension of these cases, but their political implications. These cases concern elected officials accused of wrongdoing committed while exercising public functions. They involve sentences of ineligibility in addition to imprisonment, effectively excluding major political figures from participating in electoral competitions. And they rely on provisional enforcement, allowing sanctions to take effect immediately even while appeals remain pending.
Unsurprisingly, this has revived a familiar accusation: that judges are no longer acting as neutral magistrates applying the law to citizens alleged to have committed criminal offenses, but as political actors using legal procedures and sanctions to eliminate electoral rivals (See, e.g., Ginsburg, Huq, Landau, 2021).
The problem with this argument is that judges did not invent the mechanisms used in the Le Pen and Sarkozy criminal cases. French judges did not grant themselves the power to declare politicians ineligible for office. They simply applied laws adopted by Parliament. Those laws were themselves enacted in response to political, financial, and corruption scandals, often at the initiative of political leaders and with broad public support.
Nor is the French judicial system easily reducible to the image of a politically controlled judiciary. In France, serious and complex investigations are often conducted not by prosecutors, who remain institutionally linked to the Ministry of Justice, but by investigating judges belonging to the judicial authority. Their independence is protected constitutionally and institutionally through rules governing appointments, transfers, and disciplinary proceedings. These safeguards are not absolute, of course, but they are designed to insulate judicial decision-making from political influence.
None of this means that the political implications can be ignored. Criminal proceedings against leading political figures inevitably affect the electoral process and expose courts to accusations of illegitimacy. Comparative experience shows that this problem is not unique to France. The same dilemma emerged in the United States, where criminal proceedings involving Donald Trump were quickly reframed by supporters as attempts to remove a political rival through legal means rather than through elections.
Brazil offers another striking example. The prosecution of Jair Bolsonaro is legally compelling: the allegations concern attempts to subvert a lawful electoral process and are supported by substantial evidence (See Peluso Neder Meyer & Bustamente, 2023). Yet the political consequences have enabled his supporters to portray the proceedings as an effort to remove him from public life by judicial means.
Contemporary democracies increasingly adopt what constitutional scholars call “democratic self-defense” mechanisms designed to protect institutions from corruption, authoritarian capture, and electoral subversion (See, e.g., Howse, 2025). The laws of democratic regulation pursue an understandable objective: restoring trust in democratic institutions by ensuring that elected officials are subject to legal accountability like everyone else. Their purpose is to protect democracy by regulating the conduct of those who govern. Yet the moment these laws, and the application thereof by judges, produce investigations, prosecutions, or convictions, they are denounced as attacks on democracy itself.
This tension can be seen in recent decisions of the French Supreme Court,[1] the French Constitutional Council,[2] and the European Court of Human Rights,[3] which have sought to draw a narrow line between two competing democratic principles: the rule of law and voters’ freedom of choice. A keen awareness of the tension just mentioned may also help explain the Paris Court of Appeal’s decision to reduce Marine Le Pen’s sentence sufficiently to allow her to remain a presidential candidate.
The Court of Appeal, not yet public, may have been applying the principles recently developed by the French Supreme Court, under which restrictions on eligibility must remain proportionate to the legitimate objective pursued and must not unduly interfere with voters’ democratic choice. Had the appellate court confirmed the first-instance conviction in full, the decision might have been vulnerable to challenge before the Supreme Court on those grounds.
The adoption of “democratic self-defense” mechanisms is not self-evident in France, where the political culture has long been marked by distrust of judicial authority. That suspicion has shaped much of modern French public law, including the creation of a separate system of administrative courts based on the idea that the state should not be treated like an ordinary litigant.
And yet the tension remains unavoidable. Judges in France derive their legitimacy not from elections but from the application of the law. Their role is not to assess electoral consequences or political opportunities. If an elected official is found guilty of a criminal offense, judges are expected to convict and to impose the sanctions provided for by law.
So, what exactly are we asking judges to do? Are they expected to exercise restraint—to display what Alexander Bickel famously called the “passive virtues”—and refrain from using legal tools simply because an election is approaching? If so, we risk emptying these “democratic self-defense” mechanisms of their very purpose. After all, they were introduced precisely to place elected officials and ordinary citizens on an equal footing before the law and, where necessary, to exclude convicted individuals from public office.
More broadly, such an expectation risks weakening judges at a moment when they are already under sustained political attack. These debates force us to confront larger questions about the growing reliance on criminal law to regulate political life and about the mechanisms democracies should use to ensure accountability of public officials (For a similar discussion in the Inter-American context, see Merchán-Duque, 2026 here and here). But under the law as it currently stands, one thing is difficult to escape: we cannot ask judges to perform their role and then condemn them for performing it. There is something fundamentally contradictory about that position.
[1] Cass crim., 28 mai 2025, 24-83.556.
[2] Cons. constit., déc. n°2025-1175 QPC du 5 décembre 2025, M. Bernard P.
[3] See, e.g., Paksas v. Lithuania [GC], no. 34932/04, ECHR 2011 (extracts).
Suggested citation: Elie Tassel-Maurizi, We Ask Judges to Punish Politicians. Then We Accuse Them of Governing, Int’l J. Const. L. Blog, Aug. 4, 2026, at: https://www.iconnectblog.com/we-ask-judges-to-punish-politicians-then-we-accuse-them-of-governing/