Trump’s impeachment acquittal shows how democracy could really die

The Senate’s sham trial revealed a philosophical flaw in American liberal democracy.

Donald Trump’s impeachment acquittal is a warning sign that something has gone deeply wrong in our political system. It shows a kind of subtle corruption of the law that has, in other countries, led to the decline and fall of their democratic systems in their entirety.

Senate Republicans didn’t violate the Constitution’s rules for holding an impeachment trial. They adhered fairly reasonably to the letter of the law and can credibly claim they did all that was legally required of them. But this was a sham trial, one whose outcome was never seriously in doubt. By following the formal rules, Senate Republicans gave this fiction a veneer of formal legitimacy. All of them, with the brave exception of Mitt Romney, weaponized the letter of the law against its spirit.

This kind of corrupt legalism is a common practice among ruling parties in democracies that have fallen into autocracy. That these regimes contain the most direct parallels to what’s just happened in America makes clear the precise way in which our democracy is under attack. We should not fear a coup or seizure of authoritarian emergency powers, but a slow hollowing-out of our legal system to the point where the people no longer have meaningful control over their leaders.

On Wednesday, the United States took another notable step in that direction.

Impeachment’s worrying parallels abroad

To understand the threat from this process, it’s worth looking at a country that has become an autocracy despite retaining a legal code that seems, on paper, fully democratic: Hungary.

“Hungary is not a democracy anymore,” Zsuzsanna Szelényi, a former Hungarian member from Prime Minister Viktor Orbán’s party, told me during a 2018 visit to Budapest. “The parliament is a decoration for a one-party state.”

Orbán and much of his inner circle are not strongmen on the classical model, but devilishly clever lawyers. After winning the country’s 2010 elections in a landslide, they ended up writing new laws and reinterpreting old ones in a way that rendered future elections largely noncompetitive.

The government controls the airwaves and media companies to such a degree that the opposition can’t get a fair hearing. A patchwork of nonsensical regulations makes it nearly impossible for pro-democracy organizations to serve as a check on the government. Tax law and economic regulations are fundamentally political, enforcement cherry-picked in a way that punishes government critics and enriches its cronies.

All of this happens despite a Hungarian constitution that still protects “the free establishment and operation of political parties” and “the freedom and diversity of the press.” The legal trappings of a democracy, including regular elections, a liberal-sounding constitution, and nominally independent courts, mask the actual authoritarianism of the system. It’s how sympathetic Western intellectuals like Christopher Caldwell can visit Budapest and still write that “[Orbán’s] power had been won in free elections” with a straight face.

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The brilliance of this system comes in the way it manufactures its own false legitimacy. The Hungarian government can tell both its citizens and the international community that it is still a democracy. It holds elections that aren’t obviously rigged, in the sense of having falsified ballot counts, to vindicate its claim that the people still rule. In a world where democracy is (for now) the dominant political ideology, that’s valuable for both maintaining support at home and avoiding problems internationally.

The United States is, of course, not Hungary. But the Republicans have treated the impeachment trial as a rough equivalent of a Hungarian election: a parody of its actual thing, a performance that undermines the aim of holding the executive branch accountable while claiming to follow constitutional obligations to do just that.

Any meaningfully fair trial would contain at least two elements the Senate impeachment proceedings lacked, full consideration of the evidence and open-minded jurors. These two defects were, of course, linked: The reason Republicans wouldn’t hear John Bolton’s testimony, despite a book manuscript suggesting he has new and damning evidence against Trump’s defense, is that they had already decided to acquit Trump. Senate Majority Leader Mitch McConnell was quite open about all this before the trial started.

“I’m not an impartial juror. This is a political process. There’s not anything judicial about it,” he said in December.

McConnell put together a “trial” that would guarantee this outcome without flagrantly violating the rules of the Constitution, a kind of narrow legalism that empties out the law of its true meaning.

How the liberal dependence on law is being twisted against American democracy

When we think about the impeachment vote’s broader significance for the health of American democracy, it’s worth keeping the Hungarian model of authoritarianism in mind — and what it tells us about our democratic system’s resilience more broadly.

Liberalism — in the broad philosophical sense of the term, not the partisan American one — loves the law. It aims to use legally sanctioned contests to tame the dangers of deep political disagreement. The poll station and the court hearing replace the battlefield and the street riot as a way of setting the balance of political power.

For a liberal democracy like the United States to work as intended, there needs to be a set of legal procedures that govern how these contests work. Campaign regulations make elections fair, legal codes keep judges from becoming dictators in robes, and legislative rules ensure laws are enacted fairly and openly.

Hungary’s example exposes a flaw in this dependence on such “neutral” procedures: that they don’t just enforce themselves. People interpret the law, sometimes with an eye toward fairness and sometimes without one, but always through the lens of their own values and worldview. When in power, they tend to come up with legalistic ways of justifying the policy or outcome they’d prefer.

This is one of the central theses of a school of legal thought that rose to prominence in the 1980s, called “critical legal studies.” CLS scholars argued that the law is “indeterminate,” that legal texts mean nothing on their own and, instead, are interpreted by judges through the lens of their own particular priorities.

“It turns out that the limits of craft are so broad that in any interesting case any reasonably skilled lawyer can reach whatever result he or she wants,” Mark Tushnet, a Georgetown University law professor and one of the key thinkers in this school of thought, wrote in 1983.

A classic example of this indeterminacy in action came just last month, when the Trump administration argued that the 2002 law authorizing Bush’s invasion of Iraq provided legal justification for their assassination of an Iranian general (Qassem Soleimani). This was obviously not the intent of the 18-year-old law, but enough of an argument can be put together for it to serve as a fig leaf for the president’s preferred policy.

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CLS scholars argue that the indeterminacy of the law often leads to it being used to entrench structures of domination. Court rulings aren’t neutral expressions of legal reasoning but political processes determined by the interactions of involved parties (like judges, attorneys, and interest groups filing amicus briefs). Given underlying asymmetries in social and political power, the law can be used to secure the interests of those in power — even laws that are written with egalitarian intent.

There are problems with the CLS thesis as a comprehensive theory of law. But its essential insight, that people in power can interpret the law creatively to entrench their power, has been darkly vindicated in places like Hungary. It also helps us understand the specific kind of danger the impeachment farce is warning us about.

Republicans will not vote to give Trump dictatorial powers; we will not wake up tomorrow, the day after, or the year after in a police state. The risk, instead, is that the legal procedures necessary for a liberal democracy to work — the fairness of elections, the separation of powers, the protections of minority rights — become hollowed out from the inside, rendered meaningless despite remaining on the books.

We will never stop claiming to be a democracy, but we might end up quietly losing so many different components of one that we ultimately lose the capacity for meaningful self-rule. The American ship of state becomes a version of the ship of Theseus, replaced plank by plank until very few of the original components remain.

Many of these democratic planks, like voting rights and equal participation in elections, have been chipped away at for years. This fake impeachment trial shows that another one has been quietly replaced.