In the uneasy transition from once-proud democracies to dictatorships – when a country is neither decisively one nor the other, just yet – autocracies almost invariably share a common trait. That is, a prolonged tussle over the gradual eclipse of the rule of law and independent checks and constraints on the untrammelled power of would-be authoritarian rulers.
Ultimately their logic of “l’état c’est moi” is incompatible with the separation of powers and the rule of law, essential pillars of democracy.
The Erdogans, Netanyahus, Modis, Orbans, Bolsonaros… and their would-be imitators such as Donald Trump (or maybe it’s the other way round) ... once entrenched with compliant majoritarian legislatures then begin the emasculation of the independent judiciary and of the equal application of the rule of law.
Often too, as with Trump, and indeed Silvio Berlusconi not too long ago, the bigger picture of reshaping and undermining the legal order is also part and parcel of a personal struggle to evade prosecution for corruption, abuse of power or interfering with elections. The primary purpose of getting into power – back into power in Trump’s case – becomes to capture the judicial system and make yourself untouchable, and his indictments must also be seen in this broader context of a radical power grab agenda.
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‘We will expel the warmongers from our government. We will drive out the globalists. We will cast out the communists, Marxists and fascists’
Binyamin Netanyahu, already long under indictment for corruption, has precipitated a constitutional and political crisis unlike any in Israel’s history by attempting to gut the powers and membership of the independent supreme court. His allies have also done their best to ensure that prime ministers in office cannot be jailed.
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In Turkey, the judiciary is now largely controlled by Recep Erdogan, who has sacked or jailed thousands of judges and prosecutors. Thousands of critics have been jailed just for speaking ill of the president. Corrupt acolytes thrive.
Poland and Hungary have faced EU sanctions over attempts to bring judicial appointments, disciplining and decision-making under political control.
India’s government is battling with the country’s supreme court over prime minister Narendra Modi’s determination to secure greater executive control over the appointment of senior judges.
And in the US, Trump, who this week faced his fourth indictment, began his campaign against the legal order in his first term with the promised packing of the supreme court with ultraconservatives. That has been only partially successful from his point of view – the court and US institutions so far have retained a degree of independence that makes establishing one-man rule an uphill battle.
But, significantly, the court has shown itself sympathetic in principle to Trump’s plans for his next term to concentrate yet more power in his hands by stripping many state agencies of their independence and running them from the White House.
The Georgia indictments, and their characterisation as “political persecution”, are now central to the Trump campaign. Policy differences – abortion, the economy, global warming, drug addiction and medical care, support for Ukraine – are all peripheral to this election in a way that is quite remarkable.
The candidate’s relationship to the law is centre-stage and seemingly all that matters, no matter how brazenly he flouts it. Although he tries to frame it to voters as not being about himself – “they’re coming for you”, he tells them. However implausible, it seems to work, and is in effect merging in Republican minds the cause of Trump in person with his project to rein in the independence of the legal system.
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The vast majority of Republicans (65 per cent) believe he’s innocent, and 70 per cent believe that President Joe Biden stole the 2020 election. Trump is also working on delegitimising the electoral system.
But Trump’s personal power-grab is yet more radical. Assisted by a pliable judiciary, he plans an all-out assault on the separation of powers in the name of a “unitary executive presidency”. In addition to bringing under White House control scores of independent agencies, described by political scientists as “autocrat capture”, he plans to strip job protections from tens of thousands of career civil servants, making it easier to replace them with acolytes if they are deemed obstacles to his agenda.
The former president views the civil service as a den of “deep staters” trying to thwart him at every turn. “What we’re trying to do is identify the pockets of independence and seize them,” says Russell Vought, who ran the office of management and budget in the Trump White House and now runs a conservative policy think tank, the Center for Renewing America.
“We will demolish the deep state,” Trump told a recent rally in Michigan. “We will expel the warmongers from our government. We will drive out the globalists. We will cast out the communists, Marxists and fascists. And we will throw off the sick political class that hates our country.” And rid the country of the checks and balances the Founding Fathers put in place to safeguard democracy.