Thaci, a former commander of the Kosovo Liberation Army was elected president of Kosovo in February 2016 and took office on April 7, 2016. Trump was elected in November 2016, and took office on January 20, 2017, so their terms largely overlapped.

During his presidency, Thaci developed a friendly and productive relationship with high-ranking US officials who viewed him as the one person who could move Kosovo forward as an emerging democracy in the Western Balkans.

In November 2018, I had the pleasure of attending a speech given by Thaci to US governmental officials, foreign ambassadors, policy analysts, dignitaries, members of the public and media outlets at the Atlantic Council, a well-reputed Washington think-tank.

“His key point, which he delivered emphatically, was that despite the horrors of the war with Serbia, which Kosovo will never forget, Kosovo was prepared to negotiate a final and permanent settlement agreement with Serbia, and that the time to do so is now. He was roundly applauded,” I wrote at the time.

Two weeks later, President Trump took an unusually proactive position by writing directly to Thaci and his Serbian counterpart Aleksandar Vucic, imploring them to sign an agreement and suggesting that they would be invited to the White House to commemorate it.

However, at the same time, Thaci was dogged by allegations that he had committed war crimes and crimes against humanity as initially claimed by Council of Europe human rights rapporteur Dick Marty in his infamous report of 2010 titled ‘Inhuman Treatment of People and Illicit Trafficking in Human Organs’.

Marty’s report, which was adopted by the Council of Europe in January 2011, and a subsequent investigation ultimately led to the creation of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office in The Hague, which opened for business in 2017. The court is designed specifically to prosecute former Kosovo Liberation Army fighters, while having no jurisdiction over Serbian war criminals, and is generally loathed in Kosovo.

One of the key reasons for creating the court in a far-away location was the fear of witness intimidation if any of the high-level cases, like Thaci’s, were prosecuted in Kosovo.

American prosecutor Jack Smith, who had been a top-tier prosecutor at the US Justice Department, took office as the chief prosecutor at the Specialist Prosecutor’s Office in The Hague in September 2018, and spent the next two years continuing the investigation of Thaci and others.

On June 24, 2020, while the investigation was still underway, Thaci was in route to Washington at the invitation of President Trump to meet with him and Serbian President Vucic at the White House on June 27 in an effort to bring the two sides closer together, a historic opportunity.

However, at the very same time, Smith’s office issued a press release stating that an indictment had been filed against Thaci (and three other KLA veterans), causing Thaci to return home immediately, and the White House meeting to be cancelled, surely a lost opportunity for normalising relations between Kosovo and Serbia.

The press release was unauthorised because the pre-trial judge had not yet confirmed the indictment, thereby breaching statutory confidentiality. It can be surmised that Smith was wary that Thaci had become aware of the indictment and might be trying to abscond. 

But the indictment was subsequently confirmed on October 26, 2020, charging Thaci and three others with numerous counts of war crimes and crimes against humanity, including murders, and made public on November 5, at which time Thaci resigned the presidency. Arrest warrants were then served on the four defendants on November 4 and 5, and they were delivered to the court in The Hague and placed in detention. Thaci and the others have pleaded not guilty to all charges.

Since then, all four have remained in detention during the entirety of pre-trial proceedings and during the trial itself, which began on April 3, 2023 – a period of over 1,150 days as of this writing, except for a few short visits to Kosovo for compassionate reasons.

The court’s rules of procedure require that detention be reviewed every two months. The last review for Thaci, the 12th, was on December 15, 2023, and his detention was continued by the trial panel for another two months. The panel determined that there continue to be risks that Thaci will obstruct the judicial proceedings and commit further crimes, and that no alternatives exist to prevent the risks.

He will probably continue to be held in detention indefinitely as the trial continues. It has been estimated that the prosecution’s case will not be concluded until spring 2025, at which point the defence will present its case. By then, the days in detention could be approaching 1,600.

Moreover, on December 1, 2023, shortly before the recent review of detention, the trial panel determined that Thaci, while in detention, was interfering with the prosecution’s witnesses through third parties such as visitors.

It also determined that Thaci was disclosing confidential information about witnesses through third parties and was providing his visitors with instructions about how witnesses should testify. The panel then ordered restrictions that strictly limited Thaci’s internal and external communications.

Trump hits back at Smith

With all the above in mind, let’s travel across the ocean to the United States, where former president Donald Trump is running for re-election as a Republican after having lost in 2020.

Trump has vigorously contested the outcome of the 2020 election since then, despite all reliable evidence to the contrary, including numerous court rulings around the country. His insistence on winning the election is commonly referred to by his opponents as the ‘Big Lie’.

In 2023, Trump was charged in four very serious criminal cases at both the state and federal level, including an astonishing 91 felony counts against him. (A felony carries a minimum penalty of more than one year in prison, and up to a maximum penalty of life in prison.)

“For the first 234 years of the nation’s history, no American president or former president had ever been indicted. That changed this year,” Politico outlined succinctly in a brief summary of these cases, both state and federal.

“In New York [state court], he faces 34 felony counts in connection with hush money payments to a porn star. In Florida [federal court], he faces 40 felony counts for hoarding classified documents and impeding efforts to retrieve them.  In Washington, D.C. [federal court], he faces four felony counts for his efforts to overturn the 2020 election [the January 6th coup attempt]. And in Georgia [state court], he faces 13 felony counts for his election interference in that state,” Politico explained.

The prosecutor in the two federal cases is, of course, Jack Smith, who left his position in The Hague to become Special Counsel for the US Department of Justice in November 2022 with a remit to oversee the investigations of the two federal cases against Trump, and to file indictments if warranted.

If Trump is convicted in one or more of these cases, he could serve lengthy prison sentences. (He has also been sued in several important civil cases, but even if found guilty he would not be subject to any time in prison.)

Trump has pleaded not guilty in all four cases, and so far, he has never spent a day in detention. And it is my understanding that Jack Smith has never sought to have Trump held in detention while awaiting trial, like Thaci.

Trump’s cases are scheduled to go to trial at various times during 2024, prior to the election in November 2024. But Trump is attempting to delay the federal trials until after the election, on the theory that if he wins, he could then order the federal Justice Department, which he would control, to dismiss the cases.

Trump’s lawyers are also arguing in court that he and all presidents are immune from federal prosecution for any crimes that may have been committed while in office which would render the January 6th coup case moot. This argument, which Smith is opposing with all his legal skill and which has never been addressed before, is working its way to the US Supreme Court, but it is unclear when a definitive ruling will be issued. In the meantime, the case is on hold.

Moreover, Trump has relentlessly, virtually daily, criticised the prosecutors, the judges, their families, the witnesses and anyone else who contradicts him publicly.  Smith is his favourite target; he has repeatedly called the prosecutor “deranged”. As recently as the day after Christmas here in the US, Trump publicly said Smith should “rot in hell”.

Trump has a huge political following, which thrives on his rhetorical antics, and he is way ahead of all his Republican political challengers in our exceedingly complex electoral system. He argues that the cases against him are Democratic “witch hunts” intended to impede his run for the presidency, and his supporters cheer him on. (Even though the election is not until November 2024, the campaign is in full swing.)

The courts have struggled with how to deal with his verbal excesses; the situation is unprecedented in US law. America has a very strong constitutional provision protecting free speech (the First Amendment), and virtually all speech is legally protected. The situation is particularly problematic because Trump is running for president, and is holding rallies, giving speeches and interviews just about every day. And he finds it difficult to control himself.

At Smith’s request, the trial judge in the case involving the January 6 coup attempt has imposed a so-called gag order intended to curb Trump’s bombastic attacks on witnesses and others – although not on Smith himself – and the order was largely upheld by an appeal court on December 8. But the order applies only to this particular case.

And what is the recourse if Trump violates the order? He could be held in contempt of court and ordered to pay a fine – an ineffective deterrent, given his wealth. Or he could be placed in jail, which is highly unlikely given that he is the leading Republican candidate for president of the United States.

So here are two presidents, each under indictment by Jack Smith in very serious cases, and their legal situations are about as dramatically different as one could imagine. Regarding the rule of law, it appears that the court in The Hague is following its legal procedures precisely, while in the US, generally seen as the bastion of the rule of law, the legal situation has descended into chaos.

Judge Dean B. Pineles is a graduate of Brown University, Boston University Law School and the Kennedy School of Government at Harvard University. He served as an international judge with EULEX from 2011-13. In addition to Kosovo, he has extensive rule-of-law experience in other countries. His book, ‘A Judicial Odyssey, From Vermont to Russia, Kazakhstan and Georgia, then on to War Crimes and Organ Trafficking in Kosovo’, was published by Rootstock Publishers, Montpelier, Vermont (2022).

The opinions expressed are those of the author only and do not necessarily reflect the views of BIRN.