//  5/11/17  //  In-Depth Analysis

President 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 suggests not. Neither question directs attention to the most pertinent repercussions of Comey’s termination. For illegality is not a necessary, or even common, characteristic of antidemocratic change. Worse, the very terminology of “crisis” presupposes a narrative structure that democratic decline singularly lacks 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 twenty-first century. My colleague Tom Ginsburg and I recently mined Polity data to identity 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 hence provides guidance for thinking about pathways along which antidemocratic institutional change might proceed closer to home.

Taking this comparative perspective, a threshold lesson is that the road away from democracy is rarely littered with overt ruptures in the formal rule of law. To the contrary, the modal contemporary path away from democracy under the rule of law relies centrally on actions within the law. Central among these legal measures is the disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers and related legislative reforms of institutions’ designs.

Consider here some examples of how personnel decisions, sometimes coupled to legislative amendments to institutional mandates, have played a role in clear cases of democratic decline.

  • 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, and 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 “illiberal” 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-third majority for the Court’s 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 install pro-PiS leadership. That new leadership “promptly conducted a purge of journalists and media works suspected of lacking enthusiasm for the government’s political 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 Javier Corrales calls “autocratic legalism” the chavista legislature has rewritten the constitution, authorized sweeping presidential degree powers, narrowed broadcasting media’s independence from political control, and created alternative vehicles for the local disbursement of national funds in a way that bypasses the regime’s municipal opponents. It has used its appointments powers to stack putatively independent watchdogs institutions, such as the National Election Council established under the 1999 Constitution, with regime loyalists willing to tolerable widespread violence and intimidation during balloting.

These examples, which could be amplified, 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 legal reforms, many of which might seem innocuous in isolation. As Scheppele correctly argues, it is only by situating a personnel decision or legal reform in its larger institutional context that its most salient effects become apparent.

A second lesson of comparative experience follows seamlessly from this last observation: The idea of a “crisis” or a “constitutional crisis” suggests first that illegality (and unconstitutionality) will be a leading signal of democratic decline, and second that such illegality will be a stark and sharp shock to the existing system. Neither of these premises tracks the observed dynamics of democratic decline.

There is often no singular moment of crisis that is democratic decline recognizable as such. Such 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 democratic decline, like those canvassed above, are mundane and technocratic in character. Decline itself is rarely sudden and complete. Military coups, for example, were until recently declining as an autocrat’s instrument of choice.

It is instead more common to see a steady trickle of institutional erosions of the kind experienced by Hungary and Poland over the course of several years. 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 erosion. Political scientists have resorted to a new category of “competitive authoritarianism,” beyond the democratic/autocratic binary to capture these hybrid cases.  

The expectation of a “crisis,” or sudden turning point, may derive from narrative expectations calibrated by fictional accounts of politics in crisis. But real life is not “House of Cards” or “The Siege.” Democracy is not a simple concept, but rather elusive and plural in practice. It relies on drams of transparency, legality, impartiality, and constraint. These rarely vanish all at once. Instead, their evaporation is ineffable and easily missed.

Framing the problem as a matter of “constitutional crisis” is not simply an analytic error, It is likely to mislead and distort debate systematically: It forces those who are concerned about the ruddy health of our democratic institutions to pitch those concerns at a perpetually high-pitched tenor. It allows the enablers of democratic decline to paint 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 not solely because of its proximate effect on investigations of ties between Russia and the Trump campaign. Two vectors are important here.

First, the fate of the Russia investigation, as important as it plainly is, may matter principally because whether or not it is now expanded (as Comey apparently wished) or wound down will provide a signal to FBI employees of the extent of permissible, and even desirable, politicization. Given the contradictions between the President’s earlier statements about Comey’s behavior and the ostensible reasons for the firing in the Rosenstein letter, it would require a remarkable degree of tenacity and tone-deafness to miss the signal of disfavor for certain investigations that issued yesterday But equally strong signals are sure to follow.

Perhaps an instinctual repulsion against that signal will shape the Bureau’s behavior now. But I think this is unlikely. Rather, Sen. Susan Collins of Maine is too quick to suggest that Comey’s firing is not consequential because “[t]he President did not fire the entire FBI,” and that any ongoing investigation will proceed without deviations. Historical experience with the autocratic capture of law enforcement bureaucracies provides no grounds at all for such optimism.

Second, a captured FBI will have effects on the ecology of oversight mechanisms. Given the lapse of Title VI of the Ethics in Government Act in 1999, the mechanisms for investigations of high level government wrongdoing have narrowed to congressional committee inquiries and special prosecutorial appointments under 28 C.F.R. §600.1.  Writing on this blog, Nikolas Bowie recently explained the pros and cons of these instruments.

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 as an oversight institution rules out one important source of such investigative expertise.  It is not clear the political will or institutional capacity for 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 Rod Rosenstein. 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, that is, when a chief executive you don’t trust fires the lawyer running an investigation into whether that chief executive and his close political allies has violated the law.    

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