Why the prosecutor should be acquitted

This last quarter of the year is so intense that, in the end, a trial of the so-called historical kind, what is taking place against the Attorney General of the StateÁlvaro García Ortiz's case is being partially overshadowed by a storm of political and legal news. The resignation of the Valencian president, Carlos Mazón; the beginning of talks between the PP and Vox for agreeing to his replacement; the book of the emeritus king –full of self-justifications and accusations against others-, and the breakdown of the investiture pact with Pedro SánchezThe announcement by Junts has competed for space and attention over the ongoing oral hearing against the prosecutor. However, this case represents a real test for the Supreme Court. There is a great deal at stake in this case. Firstly, for the prosecutor, because he faces a six-year prison sentence for trying to cover up the lies surrounding the negotiations between the Prosecutor's Office and businessman Alberto González Amador, partner of the Madrid president, Isabel Díaz Ayuso. But the challenge is also for the Supreme Court, given that the case on which it will have to rule has never had to go this far. Prestige at stake

To a large extent, the Supreme Court's prestige is also at stake because the trial's progress is highlighting the lack of objective evidence regarding García Ortiz's alleged guilt. Some may believe that the Attorney General leaked the email in which the businessman's lawyer admitted his client's fraud and proposed a settlement. However, no witness has confirmed this, and several journalists have stated that they knew of this message before it became public. Since there is no incontrovertible proof of García Ortiz's guilt, it is difficult to imagine how a guilty verdict could be drafted, and with what arguments. A collection of circumstantial evidence justifies prosecution, but there must be something more to overcome the presumption of innocence.

To get an idea of how things are going in this case, one need only follow the statements of García Ortiz's accusers, starting with by the businessman himself and Ayuso's chief of staff, Miguel Ángel RodríguezThe fact that López Amador presented himself to the judges as a victim of the state apparatus and claimed his dilemma was "to leave Spain or commit suicide" highlights, among other things, the fundamental flaw in his defense strategy. This man is accused of two tax offenses, totaling €350,000 in fraud. The entire controversy arose because, from the outset of these proceedings, he was portrayed as the victim of persecution, which culminated in a proposal from his own lawyer to admit to the crimes in exchange for assurances that he would not receive a prison sentence. Such negotiations are common when tax fraud cases exceed €120,000, as above that amount the acts constitute a crime.

Thus, contacts that could have continued—and borne fruit—between the Prosecutor's Office and the accused ended in an unusual criminal case after Ayuso's cabinet disseminated the claim that the dialogue had broken down on orders from higher-ups in the Public Prosecutor's Office, with the intention of harming the Madrid president. The Prosecutor's Office issued a statement to refute this version of events, but it has not been proven that the parallel dissemination of the email from López Amador's lawyer was the work of the Attorney General.

Institutional conflict?

In fact, The decision to open a trial in this case was approved by the Supreme Court by a vote of two to one.The dissenting magistrate, Andrés Palomo, stated in his separate opinion that, with the accumulated evidence, it was not possible "to attribute the leak of the email to the defendant in a minimally justifiable way." Furthermore, up to six private prosecutions are participating in the trial, seeking prison sentences of between four and six years for the Attorney General. Overall, the ideological profile of these prosecutions is not, generally speaking, close to that of the coalition government led by Pedro Sánchez. Some believe that the objective of this proceeding was to force García Ortiz's resignation. However, he has remained in office, with the support of the executive branch, which also has a great deal at stake in this matter should a conviction be handed down.

The institutional conflict would be serious in this scenario. There is no doubt that the prosecutor would end up filing an appeal for constitutional protection with the Constitutional Court, and that the tension between the Supreme Court and the constitutional body would have another opportunity to surface. The court trying García Ortiz has a theoretically conservative majority. But the presidency—not only of the trial, but of the criminal chamber itself—is in the hands of a magistrate, Andrés Martínez Arrieta, who since taking office last September has sought to bridge the gaps between the different viewpoints within the court. Achieving unanimity in the verdict of this case is a significant challenge in this regard. This is no longer a personal challenge for Martínez Arrieta, but rather for the Supreme Court, which has traditionally always tried to project an image of authority and internal cohesion that usually stems from shared criteria.

Otherwise, we are where we were, but surrounded by increasingly perverse scenarios. The political agenda, as we can see, continues to be dictated by the judicial calendar. Ayuso's partner will soon go to trial. So will the brother of the Spanish Prime Minister. And Judge Juan Carlos Peinado has taken another turn in his investigation and now—following orders from the Madrid Provincial Court—has once again combined the proceedings against Begoña Gómez, Pedro Sánchez's wife, into a single trial so that she can be tried by a jury in a single hearing, instead of two, as he had previously decided. Meanwhile, Junts is applying pressure, but not yet crushing the opposition. And the former Minister of Economy and current President of the European Investment Bank, Nadia Calviño, has presented a book reflecting on her time in government, in which she laments the noise that permeated and still surrounds politics. This is partly why she left. And speaking of books, the one about the emeritus king is a lost cause. The reason for this lies primarily in the idea that the country owes him the arrival of democracy. He should be aware that the monarchy's entrenchment would have been impossible by any other path.