France oversteps. Photographer: Xavier Leoty/AFP/Getty Images
France oversteps. Photographer: Xavier Leoty/AFP/Getty Images

The more details that emerge about the wiretapping and arrest of former French President Nicolas Sarkozy, the more disturbing the French justice system's conduct in the case seems to be.

The charges against Sarkozy derive from taped conversations between him and his lawyer, as well as between his lawyer and a judge. Allegedly the judge was asked to provide information about a campaign-financing investigation against Sarkozy in exchange for a nice posting in Monaco. The wiretaps were authorized by investigators pursuing allegations that Sarkozy took up to $70 million from former Libyan leader Muammar Qaddafi in undeclared (and therefore illegal) campaign funds for the 2007 election.

Sarkozy claims the latest charges against him -- for influence peddling and judicial interference -- are politically motivated. Whether that's true or not, there are two problems: First, never before had French police been given permission to record and transcribe phone conversations between a lawyer and a judge (who is also a lawyer). "We were all just shocked," Beryl Brown, who runs a criminal-law practice in Paris, told me. "If lawyers can't talk to lawyers on the phone, certain of confidentiality, we can't do our jobs. It is absolutely incredible."

So upset are French legal professionals that France's bar association is drawing up a petition demanding that a bill on protected correspondence be amended to ensure that conversations between lawyers can never again be tapped.

To appreciate the second problem with the wiretap, let's imagine that, when recorded, Sarkozy wasn’t talking to his lawyer but to an aide. Even then, the wiretapping, which began last fall, should never have been approved.

To do so required accepting the following logic: In order to gather evidence on charges that the suspect collected money from a man who is now dead in order to fund an election campaign that ended seven years ago, we need to listen in on his current phone conversations to gather proof of this illegal activity.

Even in France, where tapping phones for police investigations is commonplace, authorities are supposed to have a reasonable expectation of gathering information directly related to the case they are pursuing. Moreover, under French law, anything that isn't tied to the case cannot be transcribed. Otherwise, investigators can simply go on fishing expeditions and use whatever they discover -- which appears to be precisely what happened in this case.

While Sarkozy may prove to be guilty of taking money from Qaddafi, and he may have tried to undermine the investigation into that alleged crime by suborning a judge -- both serious and pretty despicable crimes -- the decision to tap his phone was indefensible. Whatever else comes the Sarkozy case, it should include a thorough reappraisal of France's overly lax rules on wiretapping.

To contact the author of this article: Marc Champion at mchampion7@bloomberg.net.

To contact the editor responsible for this article: Lisa Beyer at lbeyer3@bloomberg.net.