Americans have not, in my lifetime, been more vigorously involved in discussions and debate about the rule of law than they have over the past couple of years. Concerns about Congress’s failure to check executive-branch overreach and corruption, the devolution of the Supreme Court into just another partisan body, interference with the apolitical operation of the Justice Department and efforts to delegitimize an independent media have raised concerns that the U.S. constitutional system is at grave risk.
Ian Bassin, executive director for the nonpartisan group Protect Democracy, told me over the summer, “The rise of a U.S. president who fashions himself a strongman in the model of autocrats around the world has been a wakeup call that the guardrails of our democracy may not be as strong as we’d assumed.” He stressed that “America has never had a perfect democracy, but our story has been an ongoing process of perfecting it, and if we want that to continue we’re going to have to learn lessons from this moment and reinforce the guardrails to ensure our republic remains healthy for the next generation.”
On July 4, Protect Democracy put out a white paper, “Roadmap for Renewal,” which began from this premise: “With the country divided, a President lashing out at checks and balances, a Congress abdicating its basic legislative and oversight responsibilities, and a government failing to address the country’s pressing public policy challenges, it is all too easy to despair. And yet, America has gone through worse and emerged stronger for it. Our country’s political course can change quickly. We expect it will do so again.” It made more than 20 recommendations — ranging from rules to insulate the Justice Department from political pressure to efforts to expand access to voting.
If anyone thought threats to democracy would subside, the actions of President Trump and the Republican-controlled Congress over the past few months (e.g., Trump’s criticism of prosecutors during the Paul Manafort trial and ongoing efforts to delegitimize the Russia probe, the White House’s enlisting a Supreme Court nominee in a venomous partisan campaign, Trump’s running up more than 5,000 lies) demonstrate that, if anything, the president’s assault on the rule of law has intensified.
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If you want to understand how perilous this situation might become, spend some time, as I had the opportunity to do on Thursday, talking about threats to the rule of law with those who have seen the dire consequences that ensue when the legal profession and courts are not independent, when the press is harassed and when tribal loyalty is put ahead of institutional responsibility. Participating on a panel on the rule of law at the annual meeting of the International Bar Association (Disclosure: The IBA paid for my travel and accommodations) with Metin Feyzioglu, president of the Union of Turkish Bar Associations; Justice Rimvydas Norkus of the Lithuanian supreme court; and Sternford Moyo, a prominent reformer and lawyer from Zimbabwe, I got an earful about the methods by which authoritarian leaders lay siege to the rule of law, a primary check on their accumulation of power. Each panelist vividly described the consequences that flow from incremental steps to undermine the rule of law. These anti-democratic efforts share a common pattern — assaults on the courts and press, identification of opponents as threats to national security, a steady diet of disinformation and contempt for the messy business of democratic rule and free expression.
Turkey’s situation is particularly striking, partly because its shift to illiberal rule has been so sudden and extreme, and partly because this is a NATO member that U.S. administrations of both parties have let off the hook on human rights in favor of pursuing U.S. strategic interests. The regime in Turkey, as with illiberal governments in Eastern Europe, has sought to co-opt the judiciary and eradicate its independence. Those, such as Feyzioglu, who oppose steps to rob the courts of their independence are accused of acting in league with terrorists. In the absence of a free and robust press, Feyzioglu has traveled to more than 150 villages, towns and cities to sound the alarm about the regime’s anti-democratic agenda. (A positive sign of democratic spirit was seen in the 2017 election, which, despite his massive spending and repressive tactics, Turkish President Recep Tayyip Erdogan barely won.) Mass expulsions of civil servants have ensued while judges and lawyers unfriendly to the regime have lost their positions and been subject to arbitrary arrest.
A delegation from the European Union recently visited Ankara, Turkey’s capital city, and reported that “it is evident that the situation of the rule of law and human rights has deteriorated in Turkey in the last years, especially after the coup attempt of 2016. We have heard of numerous counts of prolonged pretrial detentions, curtailed freedom of expression, poor prison conditions and unfair dismissals. We urge the authorities to release all those persons in de facto pretrial detention, such as Osman Kavala [businessman and human rights activist] among others and to ensure transparent, timely and fair trials.”
Unfortunately, the Trump administration has done little to counteract these trends (although in the wake of the disappearance of Post Global Opinions columnist Jamal Khashoggi, who Turkish officials believe was murdered by Saudi agents in the Saudi Consulate in Istanbul, a Turkish court has ordered the release of an imprisoned American minister, one of many foreigners whom the Turkish government has snatched and detained). Indeed, Trump commended Erdogan on his 2017 election win despite international reports of widespread “irregularities.”
Last summer, the former U.S. ambassador to Turkey, Eric S. Edelman, explained during an interview: “We have operated on the principle that, notwithstanding all the difficulties and the frictions of the relationship, and the occasional obnoxiousness with which the AK Party government has handled its relationship with the U.S., that we should continue to treat them like an ally. And that if we continue to treat them like an ally, they’ll behave like an ally. That clearly hasn’t worked. And that clearly puts us in the position of Einstein’s definition of insanity, which is doing the same thing over and over again and expecting a different result.”
Democratic institutions — whether in the United States, or Poland, or Hungary, or Turkey — do not protect themselves. Extreme polarization creates dysfunction, providing a pretext for strongmen to accumulate power. (“I alone can fix it,” Trump once told us.) Efforts to impede the independence of the courts, to control and discredit the media, to characterize critics as enemies of the state and to consolidate power in the executive are all signs that democracy is at risk.
A U.S. president who is dismissive of democratic norms can influence leaders around the world who contemplate anti-democratic actions. If they effectively get a “free pass” from the U.S. president, as many illiberal regimes around the world have, authoritarian-minded leaders are that much more likely to attack the rule of law.
And sadly, we’ve seen over the past two years that the United States is not immune to the same trends that ravage democracies around the world. The upcoming midterms — in large part a referendum on the administration and the all-too-willing Republican enablers who tolerate his corruption and assault on democratic norms — will tell us how seriously Americans take threats to our constitutional system and if, at the very least, they want Congress to check the president’s lawlessness. We would do well to contemplate the consequences of passivity in the face of a leader who seeks to weaken the rule of law.