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Former U.S. president Donald Trump speaks to supporters at a rally to support local candidates at the Mohegan Sun Arena on Sept. 3 in Wilkes-Barre, Penn.Spencer Platt/Getty Images

Beneath the furious disputes that emerge each time the U.S. judicial system advances toward Donald Trump lies a question with important implications for the country’s future: How should the law treat a former president?

The country’s constitution seems to offer a clear response, declaring that “all men are created equal.” History and legal practice have suggested differently, with presidents generally spared judicial recriminations.

Mr. Trump, however, has been implicated in numerous legal actions since his departure from the White House. Prosecutors across the country are examining him, his company and his administration for violations related to taxes, elections and, now, the sanctity of U.S. secrets.

A judge’s order this week to appoint a “special master” to review classified documents seized from Mr. Trump’s Florida home argues explicitly that his case should be treated differently from that of others. As a former president, the stigma associated with the document seizure – and the illegal conduct it imputes – “is in a league of its own,” wrote Aileen Cannon, a federal-district court judge in southern Florida who Mr. Trump appointed.

The search of a former president’s home was “undeniably unprecedented,” and “the investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness.”

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That argument drew heated criticism. It amounts to “unequal application of the law,” Andrew Weissmann, a scholar at New York University School of Law who is former general counsel of the FBI, wrote for The Atlantic. “The law, it seems, is simply different for Trump and his close allies.” Justice Cannon’s order is “extremely weak in its legal analysis,” Jennifer Rodgers, a former federal prosecutor, wrote for CNN. Even William Barr, attorney-general under Mr. Trump, told Fox News that “the opinion was wrong.”

Justice Cannon has effectively created a new type of privilege for a senior office-holder, one that risks being claimed by others in power, said Alexander Tsesis, a constitutional scholar at Loyola University Chicago. “It’s shocking,” he said.

“I never would have imagined that this would occur in the United States. We’re a nation of laws, not men.” The implications, he said, go well beyond the U.S.

“To think that a nation that has been so critical to the development of democracy throughout the world to backslide like this is a real punch in the stomach.”

The response to the judge’s order has been coloured in part by Mr. Trump’s success in appointing a large number of judges to key positions, including three Supreme Court Justices and hundreds of other federal judges – including Justice Cannon. Those appointments have altered the balance of institutions such as the Supreme Court, which has begun remaking the U.S. legal landscape.

Justice Cannon, too, has shown a willingness to shape the law. In her order, she also effectively told federal prosecutorial authorities “that they must desist from certain kinds of investigative activities” related to Mr. Trump, said Samuel Issacharoff, a constitutional scholar at New York University School of Law. That ruling is “rather extraordinary, if not completely unprecedented.”

But Prof. Issacharoff, who has written extensively on law in democracy, said there are risks to prosecuting a former president.

“By and large, democracies that jail their former heads of state are referred to collectively as former democracies,” he said. “Anybody who says this is just a citizen like any other is foolishly naive.”

With Mr. Trump, a man who received 74 million votes in 2020, caution “is compelled, if democracy is to survive,” Prof. Issacharoff said. The documents case forms part of a much larger question for the U.S. political and legal system to determine “whether the United States manages to digest and expel Trump from its democratic system – or whether it is the beginning of the end,” he said.

Mr. Barr, the former attorney-general, argued against prosecuting Mr. Trump in the documents case, saying such a step would be too politically divisive. “Even if they can technically make the case, there’s another step, which is, prudentially, do they want to do it?” he said. “I hope they don’t do it.”

There are no easy answers, said Aziz Huq, a University of Chicago Law School constitutional scholar. The U.S. legal system has conferred upon sitting presidents a measure of immunity from prosecution.

Former presidents present a more complicated case. Countries that use the courts to advance political agendas have tended to spiral into authoritarianism.

That principle is not difficult to honour when the former president “is generally honest and law-abiding,” Prof. Huq said.

What, then, should happen to Mr. Trump?

“In a world in which you have a candidate who is genuinely favoured by a substantial number of the electorate but who is also someone who at the very least pushes on the boundaries of legality – there is a profound tension between democracy and what is often called the rule of law,” Prof. Huq said.

The legal tangles that have arisen around Mr. Trump bring the U.S., he said, into ”new territory.”

“We haven’t seen this kind of conflict before. And we don’t know how the public, how officials, how elected people – how any of them will react to different sorts of actions from now on.”

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