I am pleased to welcome Sam Issacharoff to ELB Book Corner, author of the new book, Democracy Unmoored. Here’s the third of four posts:

My previous posts outlined how the populist challenge to institutional authority and the demand for unilateral authority in a populist leader come together to attack state institutions, most notably the election system itself.  Looked at as a form of anti-institutional governance, populism exploits many of the contemporary weaknesses of democracies.  There are many facets to this analysis.  But one unexpected twist is that I now believe that corruption turns out to play a larger role in this story than previously appreciated.

One of the novel arguments of Democracy Unmoored is that the combination of short-termism and freewheeling governance is a powerful breeding ground for outright corruption. In a recurring pattern, the fight over independent authority to investigate and prosecute corruption turns out to be a flashpoint in stemming the consolidation of executive rule.

I’ll start with a definition.  I use a much narrower definition than that present in many American debates over campaign finance. “Corruption” within the contours of this discussion is neither the perception of elite corruption galvanizing support for populism initially, nor the act of an elected government pledging and carrying through redistributive policies.

Rather, there are three forms that are the subject of inquiry. The first is the most conventional: the private capture of public resources. The second is the corruption of the electoral system itself. Finally, and likely most insidious, is an old-fashioned use of corruption as a compromise of bodily integrity, in this case a politics defined by vitriol toward others, infusing the body politic with a dialogue of the faithful against the opposition. This is the most intangible of the trio and indeed, the hardest to root out.

The narrowest definition of corruption as quid pro quo or other forms of pocketing privately what should belong to the public, is the most tractable politically. While all regimes my succumb to individual corruption, the antagonism of populist regimes to institutionalized norms fosters the use of state resources to reward and punish in a more direct and notorious way than seen in normal democratic politics. The question then becomes whether ordinary law may serve as an effective constraint against corruption and, by extension, provide a way of combatting institutional assaults.

The U.S. provides a ready example. Checks on presidential misbehavior are difficult in the face of the presidential pardon power and the centralized command structure of the Department of Justice. Impeachment requires Congress to challenge the president by abandoning political alignment in favor of institutional loyalty, a near-impossible task in our polarized era. In the words of Bob Bauer and Jack Goldsmith: “Neither party wants to open up lines of attack for the opposition.”

By contrast, a number of the legal confrontations with President Trump demonstrate how the ordinary mechanisms of criminal and administrative review can allow dozens of investigations to go forward outside the direct control of the president or attorney general. Civil lawsuits aimed at bank records and comparable evidence of misconduct, or even criminal prosecutions for well established transgressions, such as misappropriation of classified documents or obstruction of investigation, offer current examples.

Anticorruption engages a broader cross-section of the judiciary than the structurally isolated constitutional courts that dominated the post-1989 legal environment. While these regular judicial institutions may ultimately be captured, the process is more laborious than replacing the five or six justices needed to neuter a constitutional court. Further, corruption as an issue may serve to restore some respect for legal norms while not exacerbating the political divides.  At least in theory.

Yet, if democracy rests on accepting the notion of repeat play, criminal liability for acts of state risks turning the normal change of regime into an existential fight for survival for threatened incumbents.  The critical line must fall between official and unofficial conduct – or, as Daphna Renan puts it, the “president’s two bodies.” A prosecution for action that in any way resembles traditional domains of executive privilege or a policy directive would immediately succumb to the fires of modern polarization – such was the fate of the first impeachment of Donald Trump. In policing corruption, scrutiny must focus on the individual in an isolated sense, not encroaching upon the political office that must remain contested terrain. In other words: attacking misbehavior as a matter of individual transgression, not as a matter of political misdirection. 

Using the criminal law to respond to acts of governance, no matter how outrageous, risks fueling political mistrust and angry polarization. Not letting elections lie is the hallmark of autocracies, not democracies.