President Donald Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?
Recent comparative law studies of democratic erosion suggest not. Neither question directs attention to the most potentially significant repercussions of Comey’s termination. President Trump has the legal authority to fire the FBI director, for example, even if he has violated a longstanding norm by doing so during an investigation into the president’s close allies. But illegality is not a necessary or even common characteristic of antidemocratic change.
The terminology of “constitutional crisis” is also unhelpful. Not only is the concept too vague, it also implies a narrative arc — a sharp, dramatic rupture — that democratic decline doesn’t generally have in practice. There are better questions, ones that are both more difficult, and more troubling, that should be posed today.
Democratic decline is a recurrent phenomenon of the early 21st century. My colleague Tom Ginsburg and I recently mined Polity— a database with information about the democratic attributes of countries worldwide — and identified 37 recent instances in which the quality of a nation’s democratic institutions shrank substantially. Examining these comparative cases, which range from Poland and Hungary to Thailand, Egypt, and Turkey, illuminates the institutional mechanisms of democratic decline. It therefore provides guidance for thinking about pathways along which antidemocratic institutional changes might proceed closer to home.
One lesson is 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.
Many recent instances of democratic decline follow that pattern:
- In Hungary, the Fidesz government of Viktor Orbán used a large parliamentary majority to change the composition of the Constitutional Court to create a new National Judicial Office. It also strengthened the prime minister’s control of supervisory bodies such as the Electoral Commission, Budget Commission, Media Board, and Ombudsman offices. Incumbent officials were removed to make way for Fidesz loyalists, who have facilitated the rise of what Orbán calls — intending the description as praise — “illiberal” or “non-liberal” democracy.
- In Poland, the populist Law and Justice (PiS) party, elected in October 2015, began its tenure by selecting five new judges for the Constitutional Court, while refusing to swear in three other judges who had been properly appointed by the previous government. Two months later, the PiS-controlled parliament enacted an amendment to the Constitutional Tribunal Act requiring a two-thirds majority in the court for its decisions to be binding. In the same month, the parliament also enacted a new media law dismissing the boards of all public service broadcasters and vesting the treasury minister with authority to replace them with pro-PiS leadership. That new leadership subsequently purged journalists who were insufficiently enthusiastic about the government’s agenda.
- In Venezuela, the Chávez regime started on the road to what has no become near-explicit autocracy by deploying fully legal tools. In a display of what Amherst political scientist Javier Corrales calls “autocratic legalism,” the chavista legislature has rewritten that country’s constitution, authorized sweeping presidential powers, narrowed broadcasting media’s independence from political control, and created alternative ways of distributing national funds in a way that bypasses the regime’s municipal opponents. It has used its appointment powers to stack putatively independent watchdog institutions, such as the National Election Council, with regime loyalists, who have proved willing to tolerable widespread violence and intimidation during balloting.
These examples, and there are many more, suggest that the legality of a measure is not a good index of its corrosive effect on democratic practices. Rather, as the Princeton political scientist Kim Lane Scheppele has explained, it is more often the case that democracy is dismantled through an opportunistic patchwork of reforms that are legal, and which might even seem innocuous in isolation. Factions, or individual officeholders, steadily tweak the design of governing institutions in ways that insulate them from challenge.
Won’t the presence of good lawyers within the executive branch prevent the strategic deployment of law (and gaps in the law) against legality? If so, it would clearly be premature to worry about the US case. Alas, it is instead striking that many of the new breed of populist autocrats are lawyers by training. This includes Lech Kaczyński (Poland), Viktor Orbán, and Vladimir Putin. All have teams of (often American-trained) lawyers, willing and able to further their entrenchment in power.
Even in near-total autocracies, many of the institutions of democracy survive — in neutered form
But this process is not a quick or obvious one, at least initially. To be sure, democratic decline is studded by what, in retrospect, can be flagged as turning points. But the arc of decline tends to be incremental and slow. Key moments in the process of decline are mundane and technocratic in character. Military coups, for example, were until very recently declining. Although there has been a spate in the past couple of years (including in Thailand and Egypt), it is no longer the autocrat’s instrument of choice.
It is instead more common to see a steady trickle of institutional erosions. What’s more, even highly compromised democracies such as Russia, and now Turkey, maintain a semblance of democratic contestation and electoral process after more than a decade of democratic backsliding. Moving beyond the democratic-autocratic binary, political scientists have resorted to a new category of “competitive authoritarianism” to capture these hybrid cases.
I think that one reason we expect that democracy will end by way of a “crisis” or a sudden turning point is because we are quick to assume that the narrative of political life will track the arc of fictional accounts of political upheaval. Fiction is dominated by dramatic moments of clarification and revelations, victories and defeats. But real life is not like House of Cards.
There need not be sharp inflection points. Indeed, it is worth reflecting on the fact that democracy is not a simple concept, but is instead both elusive and plural in practice. It relies on drams of transparency, legality, impartiality, and constraint. These are promoted by a range of different laws, norms, institutions, and individual loyalties. All of these rarely vanish all at once. Their evaporation is ineffable and easily missed.
Framing the problem as a matter of “constitutional crisis” is not simply an analytic error. It is also likely to mislead and distort debate systematically: It forces those who are concerned about the health of our democratic institutions to pitch those concerns at a perpetually high-pitched tenor. It allows the enablers of democratic decline to caricature their opponents as paranoid “tyrannophobes.”
Putting aside the question of legality and the terminology of crisis, comparative experience suggests that the Comey firing is important for reasons that go beyond its immediate effect on the investigation of ties between Russia and the Trump campaign. Two vectors are important here.
The implications of the Comey firing extend beyond the Russia-Trump investigation
First, the fate of the Russia investigation, as important as it is in its own right, may matter principally because of the signal it sends to FBI employees. Whether it is now expanded (as Comey apparently wished) or wound down will serve as a message to the FBI as an institution of the extent of permissible independence.
Given the contradictions between the ostensible reasons for the firing in the letter from Deputy Attorney General Rod Rosenstein and the president’s later statements, it would require a remarkable degree of tenacity and tone-deafness to miss the signal of disfavor for certain investigations that issued this week. And equally strong signals will likely continue to follow. There is no particular reason to be optimistic, in particular, about the integrity of whoever is nominated to the FBI directorship next. (Consider, indeed, whether a person of high integrity but with a family to support and a reputation to maintain, would even consider the position).
Perhaps an instinctual repulsion against that signal will shape the bureau’s behavior now, leading to a renewed commitment to investigate the Russia matter. But I think this is unlikely to endure. Sen. Susan Collins (R-ME) is far too quick to suggest that Comey’s firing is not consequential because “[T]he President did not fire the entire FBI,” and that current investigations will proceed without deviations.
Historical experience with the autocratic capture of law enforcement bureaucracies provides no grounds at all for such optimism. Over time, the bureau will be worn down. I have no doubt that many FBI agents have the upmost dedication and integrity to their jobs, but they are human, and can only be asked to respond as such.
Second, a captured FBI will have broader effects on the ecology of oversight mechanisms. Given the lapse of Title VI of the Ethics in Government Act in 1999 — which crafted an independent counsel who was appointed and operated outside of presidential control — the mechanisms for investigations of high level government wrongdoing have narrowed to congressional committee inquiries and special prosecutorial appointments. Among the limitations of these, however, are the direct political accountability of federal prosecutors and the lack of a dedicated investigative staff available for political cases (hence Comey’s need to ask for more funds).
But in the absence of skilled and professional investigators with necessary funding and powers of evidentiary compulsion it is hard to imagine that either past or future instances of high-level impropriety will be effectually investigated by any of these mechanisms. Neutering the FBI rules out one important source of such investigative expertise. It is not clear the political will or institutional capacity to create a substitute investigative body exists.
All this should matter regardless of one’s partisan colors. To see this, consider the following thought experiment. Let’s say you have a benign view of President Trump, and are inclined to credit the reasons for the Comey firing supplied by Deputy Attorney General Rosenstein — or you think the president’s decision was justified on other grounds. You should ask yourself what you would think had the partisan valence of the firing been reversed — say, had Comey been fired by a hypothetical President Hillary Clinton for investigating the misuse of a private email server. Or, more to the point, ask yourself what happens the next time around: What happens when a chief executive you don’t trust fires the lawyer running an investigation into whether that chief executive and his allies have violated the law?
Firing Comey can simultaneously be legal, and also a step toward what some have called an “illiberal democracy” — or toward something even worse. Legislators and bureaucrats have the power to slow down such a degradation, but only if they recognize what is happening, and respond.
Aziz Huq is the Frank and Bernice J. Greenberg professor of law at the University of Chicago Law School. He is co-editor of the book Assessing Constitutional Performance. A version of this essay first appeared on Take Care, a blog analyzing legal issues related to the Trump presidency.
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