After acquittal

Richard Nixon was once asked, in an interview by David Frost, whether in the broader public interest the president could take illegal actions. Nixon infamously replied that, if “the President does it, that means it is not illegal”.

Threatened with a president who saw himself as above the law, the institutional might of the American republic triumphed in preventing Nixon from mocking the rule of law in America. A good account of how strong democratic traditions allow a country to censure a leader who tries to walk the path towards absolute power.

With Trump it’s been a different story.

As I pointed out in these pages last month, Trump’s acquittal in the impeachment trial was a foregone conclusion. Cementing Trump’s belief that the Constitution gives him “the right to do whatever I want”.

The Republican Party has acquitted a man who fell so squarely within the letter of the Constitution’s impeachment criteria that it is a wonder James Madison himself didn’t rise from the crypt to vote for conviction. In doing so, they have emboldened Trump’s belief that he is above the law.

When something like this happens, when constitutional principles are brushed aside for partisan brownie points, the law transforms from a system that keeps power in check to a sceptre of unchecked abuse. Applicable how and when Trump wants.

The chaos of unaccountable power began with Trump cleansing his staff of those who he felt were disloyal to him.

First went Colonel Vindman, a member of the White House staff who was required to testify in the impeachment trial because he was on the call with the President of Ukraine. He was marched out of the White House and told to leave a day after the acquittal. His brother, guilty of nothing but being a sibling, was dismissed from his post at the National Security Council.

Next to go was Gordon Sondland, the ambassador to the EU. Also guilty of nothing but trying to uphold the law.

To be sure, it is reasonable that the President doesn’t want to be surrounded by people he can’t trust. But there is a diplomatic way of going about that, or, there is a way that signals to the entire country that people are being punished for doing what the law commanded them to do. Trump chose the latter path. Like all true autocrats, loyalty is what matters most to Trump. More than adherence to principles, integrity, or the rule of law. For the President, loyalty to him is greater than loyalty to the law.

Nothing exemplifies this better than the trial of Roger Stone. Stone is a man with a Richard Nixon tattoo who has been charged with lying to the Congress. He is a loyal Trump supporter. Which is why the President became directly involved in influencing the sentence that his own Justice Department would recommend for Stone’s crime. The sentence recommendation changed only because of Stone’s relationship with the President. The practice was corrupt enough to cause four career prosecutors to resign.

With all this unfolding, it is easy to laugh at the idealism of moderate Republicans who defended their decision to acquit because they felt the impeachment trial by itself would chasten Trump. That didn’t happen. His response is nothing like Bill Clinton’s restrained speech after his acquittal where he spoke of reconciliation.

What is happening in America is something from which students of constitutional law and democracy should learn. Trump’s acquittal shows that the Constitution, at the end of the day, is an aspirational document. It guarantees nothing if the political will does not align with its principles. It can rise and fall with the spirit of the times.

I have written before that unwritten norms are just as important to maintain a constitutional democracy as written ones. It is the erosion of unwritten norms, piece by piece, that has resulted in where things stand in the US today. It began when the Republican Party abdicated its traditional gatekeeping role and allowed Trump to win the nomination for president. It continued when they broke from tradition and stalled the right of the Democrats to nominate Merrick Garland for a seat on the Supreme Court. Finally, it culminated in the Republicans blocking witnesses from the impeachment trial and ripping apart norms of democratic tolerance by branding Democrats as traitors.

It is necessary for our country, a country that has struggled with a history of unchecked power, to make sure that we learn from these events around the world. That is what smart nations do.

First, we must recognise that it is not enough to have institutional safeguards to guard against some power. We must have checks on all power. No one, no institution, can be an exception to this. Being wary of all forms of power is the hallmark of liberal democracy. That is what we must be aiming for.

Second, we must become better at seeing the signs that pave the way towards unchecked power. The incremental elimination of unwritten democratic norms in the name of ‘necessity’ or ‘emergency’ should be foremost in sending alarm bells ringing in our minds. Adherence to democratic principles must be above adherence to partisan loyalty. Our political parties keep abandoning this concept. We must remind them of it at every opportunity. They compromise on principles to gain power.

At some level, our Constitution, unfortunately allows for this. The 18^th Amendment got one thing wrong. It should not have made internal party dissent in parliament a legitimate excuse to expel someone from a political party.

Finally, we must stop branding our political opponents as traitors. No democratic system can further itself until political parties start seeing each other as equally legitimate players in the system.

While it is true that our problems are different from the problems in the US and it is impossible to make an apple to apple comparison, it is also true that the scourge of unchecked, unaccountable power has been a bigger problem for our country than theirs. It has now risen in India and in other countries around the world. We cannot allow it to return here. We need to learn to prevent it by seeing the signs of its rise early and nipping it in the bud.

Autocratic power creates a ripple effect. That ripple will come for us. We must be ready.

Published in The Express Tribune, February 25^th, 2020.

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