Robert Mueller’s investigation has captured the attention and, at least for some, hopes, of the American public. Though past investigations have weighed heavily upon the minds of many citizens, few, if any, have moved at such a rapid pace. Nor, in short, have they revealed a plot as dark as Mueller’s. Put simply, Russian interference had tainted the hallmark of liberal democracy: competitive elections. The United States, the supposed bastion of democracy, had been duped by an authoritarian. On a visceral level, Mueller’s indictment of thirteen Russians for “engag[ing] in operations primarily intended to communicate derogatory information about Hillary Clinton, to denigrate other candidates … and to support Bernie Sanders and then-candidate Donald Trump” is devastating (17). After all, how can the U.S. defend democracies abroad if it cannot protect its own? Though little evidence suggests direct collusion between Russia and either campaign—the indictment describes the Trump campaign as “unwitting”—faith in the desirability and legitimacy of our democracy clearly has been harmed (4). Unfortunately, other facets of American democracy, not merely their reputations, have been damaged as well. The veneer of bipartisan respect is cracking, institutions risk losing legitimacy, and elections will forever carry a hint of uncertainty. In short, the initial effects of the Russian interference, however small, have snowballed to contain nearly all of American politics.
Huq and Ginsburg posit in “How to Lose a Constitutional Democracy” that American democratic erosion will likely include damage to “competitive elections, liberal rights to speech and association, and the adjudicative and administrative rule of law necessary for democratic choice to thrive,” the first facet, competitive elections, is of particular import (Huq, Ginsburg, 6). Huq and Ginsburg extend the definition to encompass all of “the civil and political rights employed in the democratic process, and the availability of neutral electoral machinery, and the stability, predictability, and publicity of legal regime usually captured in the term “rule of law”” (Huq, Ginsburg, 8). Though the tangible impact of interference on the election is unclear—it is unlikely, in all honesty, that Russia tipped Pennsylvania or Wisconsin—the aftermath meets the criteria previously described. Victory margins now must face additional scrutiny and, at least by the loser, skepticism. The mere suggestion of impropriety, interference, or collusion will have an outsize impact on the American psyche and voter behavior. That loss of confidence may erode public confidence in elections and, in extreme cases, the stability of democracy.
Beyond the tangible, the Mueller investigation, and responses to it, may jeopardize the “rule of law.” Though the investigation is moving at a rapid pace relative to historical analogs, it is unclear when, or how, it will conclude. Put simply, the Russian interference and subsequent investigation exploit a gap in the Constitution and established legal frameworks; there is little, if any, clear guidance on how and when to end an investigation. Though President Trump allegedly has considered firing Mueller, it remains possible that the investigation continues indefinitely in search of a crime—collusion—that may have never occurred.
An independent, special counsel, by definition, requires independence, but some may find that a prolonged investigation can erode democracy rather than buttress it. When investigators go beyond their intended jurisdiction—in spirit or effect—they risk becoming partisan figures. At that point, the investigation becomes seen as a politically-motivated, ultimately quixotic effort against a democratically elected president—much like the Bill Clinton investigation eventually became. Such situations jeopardize the legitimacy of future independent counsels, leaving their work in a sort of limbo; they simultaneously serve as a necessary check on authoritarians, yet risk damaging a fairly elected victim of circumstance. Following this framework, an executive always has a convenient excuse: that the investigation is a “witch hunt.” Even Senator Bernie Sanders and his staff, when politically expedient, have questioned the veracity of Mueller’s findings, with his former campaign manager saying “The factual underpinning of that in the indictment is what? Zero. I have not seen any evidence of support for Bernie Sanders” (Dovere). Both statements clearly denigrate the rule of law, as does a runaway investigation. Both, therefore, erode democracy.
As the Mueller investigation grows more polarizing, major parties have followed suit (CITE). It is likely, therefore, that Congress will continue to provide prominent examples of constitutional reversion and democratic erosion. Increased polarization—in part due to disagreements about Trump’s legitimacy—makes compromise unlikely and progress difficult. In response, both Harry Reid and Mitch McConnell have lowered standards for nominees, and President Trump has mentioned removing the Senate filibuster. Each parliamentary tactic allows for blatant partisanship rather than encouraging nominees and legislation representative of the entire nation. Done under the guise of necessity, however, each is an excellent example of “stealth authoritarianism,” and fits within the Huq and Ginsburg framework. Though each move is understandable in isolation, the scholars note that “It is only by their cumulative effect that retrogression occurs” (Huq, Ginsburg, 17). Democratic erosion began in the Senate and has continued ever since; Russian interference merely accelerated it.
Though the overall electoral impact of Russian interference is probably low, its effect on American democracy has been far greater. Because the specter of foreign influence looms, it is likely that many Americans will have less confidence in their democracy and, by extension, may distrust their opposition. Because the Mueller investigation faces an uncertain future and unclear conclusions, Trump, Sanders, or Congress, risks setting a dangerous precedent: dismissing its findings as partisan. Mueller himself could become a threat to democracy if his investigation is biased, prolonged, or ineffective. Ultimately, however, one must note that interference exacerbated, rather than facilitated, American democratic erosion. Though American liberal democracy remains strong, foreign involvement has, in short, weakened electoral, legal, and institutional frameworks necessary for its maintenance.
DOVERE, EDWARD-ISAAC. “Bernie Blames Hillary for Allowing Russian Interference.”POLITICO, 21 Feb. 2018, www.politico.com/story/2018/02/21/bernie-sanders-trump-russia-interference-420528.
Huq, Aziz Z., and Tom Ginsburg. “How to Lose a Constitutional Democracy.” SSRN Electronic Journal, 2017, doi:10.2139/ssrn.2901776.
United States, Justice Department, Mueller, Robert S. “Case 1:18-Cr-00032-DLF.” Case 1:18-Cr-00032-DLF. Case 1:18-cr-00032-DLF, https://www.justice.gov/file/1035477/download.
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