Most of us think of the sudden, often violent, overthrow of government: the CIA-led overthrow of the Iranian democracy in 1951; Augusto Pinochet’s 1973 military coup d’etat in Chile with the murder of Salvador Allende; the 2013 military take-over in Egypt led by General Abdel Fattah el-Sisi, now president. By that metric, we in the United States feel safe. Such a revolution here can hardly be imagined.
Statistically, however, the decline of most democracies of the last century has been a stutter, a gradual erosion of laws and norms. They’ve happened mostly legally—often leaving democratic remnants, eg elections, in place, blurring the actual loss of democracy. Even Hitler’s rise to Chancellor was conducted through proper channels.
Attorney General Sessions’s unusual decision not to defend the Affordable Care Act in court is an example. It may seem to be just one more relatively innocuous partisan event among the many outrageous events during this administration. But it’s more than that: conducted completely legally and according to proper protocol, it’s a precedent that chips away at an essential function of the Justice Department: defending the law of the land. Furthermore, if the president, through the Justice Department, can pick and choose which congressionally determined laws to defend, he can effectively choose which laws remain on the books, a further blurring of the line between the executive and legislative functions of government.
In May of 2017 (immediately after Trump’s dismissal of FBI director James Comey), University Chicago law professor Aziz Huq wrote an article that is most helpful. After studying “37 recent instances in which the quality of a nation’s democratic institutions shrank substantially,” Dr Aziz concluded that
the road away from democracy is rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers. Often, there are related changes to the designs of institutions, which might be brought about through legislation. Ironically, the law is deployed to undermine legality and the rule of law more generally.Using this lens, many of the events of the last eighteen months begin to take on an additional meaning.
“Fake News”
Trump’s repeated accusations of “fake news”—now picked up by many other politicians, government officials and media, particularly Fox News—are hardly new for a politician. But never, as far as I know, has any president launched such a brutal attack on the media as such, especially based on easily certifiable lies. In addition, the President tweeted that the nation’s news media “is the enemy of the American people.”
This is all constitutionally permissible under presidential power. From one point of view, the President is only using the bully pulpit of the presidency to attack the legitimacy of mainstream-news reporting. In fact, however, he’s attacking the legitimacy of the media itself. Democracy, however, depends on a free press that has, among other functions, the job of reporting on the dark side of power. Just as important, the power of the media depends on the people trusting that it will do its best and if it fails, will issue a timely correction. It’s true that American trust in the media has been falling steadily for decades. However, this sustained attack—led by the President, backed by partisans in the media and politics, and based largely upon obvious lies—is new in our society.
Trump and the Republican attacks on Robert Mueller and his investigation
In May of 2017, Deputy Attorney General Rod Rosenstein (Sessions had recused himself) appointed Robert Mueller—a former director of the FBI with a stellar bipartisan reputation—to conduct an ongoing investigation into Russian interference in the 2016 U.S. presidential election and related matters, government and Donald Trump's campaign.
Soon after the appointment, many Republican politicians began disparaging the investigation. Earlier this year, the House Intelligence Committee Report (“Nunes report”) was approved along completely partisan lines. It was later discredited. Trump calls the investigation a “witch hunt.” Further, the President continues to assert that the House investigation “vindicated him.” It did not. The New York Times reported that Republicans are “pushing the narrative that a cabal of politically biased law enforcement officials set out to sabotage Mr. Trump.”
Turning the House Intelligence committee process into a partisan attempt to vindicate the President, further weakens yet another of our democratic norms.
Pardons
Presidents are legally allowed to pardon whomever they choose. President Trump has chosen to pardon Sherriff Joe Arpaio who was being prosecuted for unconstitutionally detaining immigrants. Pardons are ordinarily given after the judicial process is completed and after investigation by the Federal Office of the Pardon Attorney, which Trump ignored. Although legal, this pardon can be seen as Trump’s arrogation of judiciary powers.
Trump also pardoned Scooter Libby, a member of Vice-President Dick Cheney’s staff, for offenses remarkably similar to the offenses for which Trump’s campaign staff are being investigated. Both the Libby and Arpaio pardons have been widely interpreted as signals to former staff involved in the Mueller probe that they, too, will be eligible for pardons.
Others
Even before Trump’s presidency, Majority Leader Mitch McConnell refused to allow even a vote on Barack Obama’s nomination for the Supreme Court. Trump didn’t instigate this, but it’s a powerful example of what is happening to our democracy.
One of the three candidates being seriously considered for Trump’s Supreme Court nomination is Brett Kavanaugh who has previously argued that “presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.” Kavanaugh’s appointment would clearly give Trump a friendlier Supreme Court in the event of impeachment or other charges. It may well be that Kavanaugh will not be nominated;** there are other, political problems that might delay his conformation. But it's remarkable that he is even being considered without the issue having been raised.
Trump has rejected the unanimous finding of all four intelligence agencies (CIA, FBI, NSA, and the Office of the Director of National Intelligence) that investigated Russian interference in the 2016 election.
Trump’s attacks on the judiciary, his disparaging of the Attorney General, his dismissal of the legitimacy of the FBI, Sessions, and Congress and his unrestrained lying are only a few of the subtle and not so subtle attacks that wear away at elements of our democratic society.
We might remind ourselves of the fable of the frog thrown into cold water who doesn’t notice the gradual rise in temperature even as he’s boiled.
** Tues, Sep 28. In fact, Trump did nominate Brett Kavanaugh. I notice that the Washington Post does finally have an article about this issue.
