by Javier Corrales
AMHERST, Mass. — The process of democratic backsliding in the United States is proceeding in a recognizable way. Now that the Republican Party has proved that it is unwilling to curb the president’s worst impulses, Donald Trump is turning to the next step in his quest for more power for the executive branch, the opposite of what the founders intended with our Constitution.
Presidents across the world use diverse tactics to achieve unlimited government, but a common approach is to erode the impartiality of the law. The goal is always to use and abuse the law to protect yourself and your allies. This is called autocratic legalism.
The impeachment outcome and the Roger Stone scandal tell us that the process of creating autocratic legalism is already underway. The executive branch seems to have all that is needed to use, abuse and ignore the law to reward loyalists and perhaps even punish critics.
When Mr. Trump began tweeting against the Justice Department to lower the scale of the sentence for his ally Roger Stone, he was fully embracing autocratic legalism. The president has been embracing the principle of impunity to loyalists since the 2016 campaign. At a famous violent rally that year, he told a crowd of supporters: “If you see somebody getting ready to throw a tomato, knock the crap out of ’em, would you? … I promise you, I will pay for the legal fees.” This is the quintessential autocratic cry. Support me, and both the law and I will be on your side.
I witnessed the concept of autocratic legalism while studying Venezuela’s president Hugo Chávez between 1999 and 2013. Mr. Chávez created a system of impunity like no other. His supporters, especially crony capitalists, were allowed to get away with contracts with the state without bids, special access to favorable exchange, protection from tax audits and favorable treatment by the legal system.
The biggest winner from autocratic legalism was of course the president. A famous study found that none of the 45,000 court rulings between 2004 and 2013 challenged the president.
Autocratic legalism is not easy to achieve in democracies, but it is not impossible. Mr. Trump is reminding us how it is done. First, the president needs the ruling party to serve as a legal shield. Check. Then you saturate the legal system with partisan judges. In progress. Next, you begin to interfere in sentences. Now in evidence.
Again, Chávez was a champion of legal pressuring. After packing the Supreme Court in 2004, Chávez began to fire lower-level judges who were out of line. More than 400 judges lost their jobs, while others were imprisoned. One of Mr. Chávez’s most famous political prisoners, the Venezuelan Judge María Lourdes Afiuni, was arrested for ordering the release of a government critic accused of embezzlement. Mr. Chávez ordered Ms. Afiuni’s arrest on national TV. Lower-level judges learned to side with the president if they wanted to keep their jobs and freedom.
Mr. Trump has already demonstrated an affinity for legal pressuring. His recent tirade against Justices Sonia Sotomayor and Ruth Bader Ginsburg for being critical, demanding that they recuse themselves on all “Trump related matters,” betrays an impulse for turning the justice system into a support system.
The subsequent step in autocratic legalism is to use and abuse the law to target critics. This, too, is commonplace today among many countries with democratically elected presidents. In Russia, Vladimir Putin uses anti-corruption campaigns to arrest critics who accuse him of corruption. In Turkey, Recep Tayyip Erdogan has removed elected mayors after accusing them of terrorism. And in early February, the ruling party of Poland, another country in the process of democratic backsliding, passed a law allowing politicians to fine and fire judges whose rulings they consider harmful. Analysts think this law will be abused by the executive branch to turn the legal system into a weapon against critics.
Mr. Trump has engaged in smear campaigns against his critics since Day 1, often questioning their precise legal standing. Barack Obama is the liar under oath (in reference to his birth status), Hillary Clinton is the crook (referring to her emails) and Joe Biden is the corrupt one (his dealings in Ukraine).
It seems that Mr. Trump has already used more than tweets to target enemies. Even before his interference in the Stone case, the administration was already pressuring the Justice Department to go harsh on an investigation of the former deputy F.B.I. director Andrew G. McCabe. Mr. Trump disliked Mr. McCabe for investigating Russia’s role in the 2016 elections.
The United States is obviously nowhere near the dangerous point of using the law to target dissent systematically. To get to this level, more is needed than just a bigmouth president and an enabling ruling party. In Hungary, for instance, President Viktor Orban achieved autocratic legalism after overhauling the Constitution, changing voting rules in Parliament, gaining control of the entire bureaucracy, undermining the autonomy of regional and local governments and scoring impressive electoral victories at the polls. In Venezuela, the state benefited from controlling the media, which helped to minimize debate on these attacks.
This aggressive type of autocratic legalism is not here yet. But the first steps have been taken. There is a reason for its appeal. The duality of autocratic legalism — impunity for loyalists, legal pressure on the opposition — is a useful tool for illiberal presidents because they desperately need the public to turn the attention the other way. By saying that the other side is worse, they can achieve this. If they can prove it with the law, even better.
And once underway, autocratic legalism is hard to stop. By definition, the court system becomes disarmed. Public outcry can help slow down autocratic legalism, but only to a point. While a massive letter-writing campaign in 1937 helped convince some senators to defeat President Franklin Delano Roosevelt’s bill to pack the Supreme Court, it is unclear that Mr. Trump’s supporters in Congress today would budge. The main recourse left is therefore elections. Public outcry against autocratic legalism can work, but only if translates into punishing votes against enablers.
Javier Corrales, a professor of political science at Amherst College, is the author, most recently, of “Fixing Democracy: Why Constitutional Change Often Fails to Enhance Democracy in Latin America.”
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