When President Trump asked Ukrainian President Volodymyr Zelensky to open up a case on his political opponent Joe Biden, the only thing unfamiliar about the request from a Ukrainian perspective was that it was coming from a U.S. president.
Ukrainian presidents have used their prosecutor generals to prosecute their rivals for corruption since the country was founded in 1991. If there was one constant in Ukrainian politics before the election of Zelensky, it was the use of graft to enrich the top elite — and the threat of selective prosecution to keep that elite in line.
Ukraine’s watershed 2019 elections were an effort by Ukrainians to put an end to corruption and the selective justice that sustained it, but behind the facade of Ukraine’s formal institutions, there have always been elements of a “blackmail state.” Thus, in seeking the criminal investigation of a rival, Trump administration officials weren’t fighting corruption in Ukraine — they appeared to be reactivating corrupt networks for their own political gain.
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Bringing back the blackmail state
Nearly 20 years ago, secret recordings from the offices of Ukrainian President Leonid Kuchma were leaked to the public. While not as historically consequential as the recently released record of the conversation between Zelensky and Trump, this was big news. My research, for instance, looked at what these recordings showed about corruption in countries like Ukraine — and the role of the prosecutors general.
Here’s what they revealed. Behind the formal facade of the government was an informal system of rule in which the president and his subordinates monitored, encouraged and partially controlled graft — including bribery, embezzlement and self-dealing of state contracts.
Ukraine’s law enforcement apparatus did little to enforce the law. The prosecutor general, the minister of internal affairs, and the heads of the Tax Inspectorate and the Security Service (the former KGB) were all recorded in the president’s office. Their conversations aimed to make sure the revenue of corruption was duly shared up the chain of command. And these law enforcement bodies kept a compromising record of the crimes and corruption (“kompromat”) that enabled the selective prosecution of anyone within the elite who showed disloyalty or took too much for themselves. Essentially, the recordings revealed that Kuchma controlled the country via a combination of graft and the threat of selective prosecution, through kompromat and blackmail.
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These moves undermine the rule of law
Ukraine’s prosecutor general, who has the exclusive right to bring criminal charges, played a central role in this system. With this legal monopoly, the prosecutor general could then prosecute the president’s political rivals. More important, the prosecutor general could also grant de facto immunity from prosecution to a corrupt but loyal elite. That’s exactly what Ukrainian prosecutor generals have done for the past 20 years.
This helps explain why the Ukrainian prosecutor general’s office has been a primary impediment to the establishment of the rule of law, the promotion of which has been a central pillar of U.S. foreign policy. At a minimum, legal experts define the rule of law by the principle that “like cases should be treated alike.” Selective prosecution is the very opposite of the rule of law. As distilled by Peruvian President Óscar Benavides in the 1930s, it operates on the principle that “for my friends, anything. For my enemies, the law.”
The real problem lies with the informal rule of Ukraine’s presidents
Scholars have shown that informal institutions such as those in Ukraine can be very sticky. Two Ukrainian revolutions — in 2004 and 2014 — didn’t end the widespread corruption of Ukraine’s elite, or the role of the Ukrainian prosecutor general in protecting that elite from prosecution.
Petro Poroshenko’s prosecutors are a case in point. A year after taking office in 2014, President Poroshenko installed a loyal lieutenant, Viktor Shokin, as prosecutor general. There was broad pressure from the international community to push out Shokin for his failure to prosecute corruption. But Poroshenko just replaced him with another lackey, Yuri Lutsenko, the leader of Poroshenko’s political party in the legislature and a man who didn’t even have a law degree. Under Lutsenko, there were no high-level corruption prosecutions either, and he stymied efforts to establish an independent corruption court.
This should come as no surprise. The problem was not with one individual prosecutor or another, as the prosecutor general simply does what the president wants. The problem was with Ukraine’s president, and the broader informal institutions that presidents have used to govern the country since its founding.
Ukraine is hardly unique in this regard. Research has shown that in China and other nondemocratic regimes, anti-corruption investigations are simply a palatable way to prosecute political rivals and tip the scales of the law in favor of incumbent politicians and authoritarian rulers. The selective prosecution of political opposition is a dominant feature of competitive authoritarian regimes.
Zelensky promised to turn over a new leaf
All this puts the recent efforts of the Trump administration to pressure the new government of Ukraine into perspective. Zelensky just won an election on the promise of tearing out Ukraine’s corrupt system by the roots. Zelensky and his political party in parliament just pushed through reforms of the prosecutor general’s office to make it less vulnerable to political pressure and graft. Privatization of land and other reforms are in progress to shut off the many ways corrupt officials have exploited state assets in the past.
The Trump administration, in its push to get the Ukrainian government to investigate Burisma Holdings, the firm whose board Hunter Biden served on, was not rooting out corruption in Ukraine. With the help of people such as U.S. envoy Kurt Volker, who knew how to navigate Ukraine’s shadows, the Trump administration was trying to reactivate that old corrupt system for its own ends.
Pressuring a government to put its legal system in the service of political ends through selective prosecution of cases is not part of a “wider context of rooting out corruption.” On the contrary, it is precisely what keeps these countries corrupt.
Keith Darden is an associate professor at the School of International Service at American University.
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