On August 8th, for the first time, law enforcement agents raided the home of a former president on suspicion of criminal activity. The ensuing legal conflict between former president Donald Trump and the US Department of Justice has revealed the mechanisms of democratic backsliding and democratic erosion as they permeate our political institutions.
FBI agents, following the raid of former President Trump’s residence the Mar-a-Lago club in Palm Beach as part of a criminal probe by the DOJ into alleged removal of government records, reportedly seized 33 boxes worth of material, including several documents labeled top-secret, secret, and confidential. A recent development has seen Trump and his lawyers file a lawsuit in the U.S. District Court for the Southern District of Florida, the content of which, among others things, suggests that the raid was politically motivated, asks that a court-appointed special master be appointed to review the seized documents, and finally, moves to block the DOJ from further review of the material until the special master has been appointed. In a written statement following the filing of the suit, Trump wrote that “This Mar-a-Lago Break-In, Search, and Seizure was illegal and unconstitutional”.
Such rhetoric has fanned the flames of hostility amongst Trump’s most fervent supporters. U.S. Magistrate Judge Bruce Reinhart – the judge who signed off on the original search warrant – has been met with a torrent of antisemitic hate speech and death threats. This tension has not been improved whatsoever by Trump’s comments, which include decrying the raid as deliberate political persecution and calling for Judge Reinhart to recuse himself due to unsubstantiated claims of democratic party affiliation. Similar attacks from Trump and his base have been directed towards the FBI in the aftermath of the Mar-a-Lago raid. Experts have reported that attacks and vitriolic behavior of this nature has become increasingly common; In 2014, the U.S. Marshals Service reported 768 incidents classified as “inappropriate communications” aimed at judges and court employees. Last year, this number was appallingly high at over 4,500 reported incidents. But this should not come as a surprise; Trump’s initial campaign dramatically shifted the perception of appropriate political discourse and prompted growing political polarization. Inflammatory rhetoric and threats are now common across the political spectrum.
One very obvious consequence of this pattern of behavior from Trump and his associates is a weakened power of the judiciary. Trump, as a former popular elected leader, is able to use his influence in the public sphere to pressure judicial officials in a form of executive aggrandizement. That is to say, the gradual weakening of checks on executive power. Threats of violence force in response to unfavorable rulings force public servants to abide by the rules set by the executive and their associates. In addition, his use of legitimate legal channels allows him to disrupt a criminal probe. Though Trump is no longer the executive, his public and political influence allows for him to affect democratic processes and institutions before he will attempt to regain his position. This deliberate targeting of individual judges and members of law enforcement weakens the checks that can be placed on his behavior. In addition, such rhetoric serves to further political polarization, a key factor in the United States’ continuing democratic erosion and in Trump’s electoral strategy. As the base listens to their leader’s claims of political persecution, faith and trust in institutions drops as partisanship grows.
Another way of understanding this sort of development however, is through the lens of constitutional retrogression. Constitutional retrogression can be understood as the incremental decay of the quality of elections, speech, and associational rights. Similar to executive aggrandizement, a mechanism by which constitutional regression can take place is through the weakening or elimination of institutional checks. This appears quite obviously in Trump’s rhetoric – it directly targets our public institutions as dens of corruption and agents of political persecution. Such notions go back to Trump’s first mentions of the “deep state” and “draining the swamp” and continue now with Trump’s claims asserting the illegal and unconstitutional nature of the Mar-a-Lago raid. We can further call back to Trump’s election denialism, undermining public perception of democratic processes and decreasing the quality of elections.
Another mechanism by which constitutional retrogression takes place is the degradation of the public sphere. For the operation of democracy to perform well, citizens, understood as decision-makers, need a solid bedrock of information from which to reason and produce certain choices. Trump’s use of public influence to spread misinformation, which subsequently echoes through an entire media apparatus, thus degrades the prospects for this sort of bedrock of information, insofar as bad information is propagated while potentially accurate information (typically the type which reflects poorly on Trump) is made out to be some sort of sham.
The public influence accrued by Trump and the political polarization encouraged by his style of campaigning and form of political discourse thus helps him to have a significant effect on democracy even when he is not the incumbent President of the United States. While his ability to promote democratic erosion and backsliding is constrained to form that is mostly discursive and otherwise taking place through legal battles at the moment, the serious effect this has on public servants cannot be overstated. As we look forward then, we must pay close attention to Trump’s relation to democratic erosion; things could change for the worse.