Prosecute the populists?

MOSCOW — Until the cease-fire, the world’s attention was trained on Israel’s air strikes on Gaza, which may have suited Prime Minister Benjamin Netanyahu, who is facing trial on corruption charges. And Netanyahu is hardly the only populist leader in legal peril. From Austria to the United Kingdom to the United States, similar investigations are under way. Have democracies finally found the means, and the willingness, to vanquish their domestic enemies?

To answer that question, let us begin by looking at the poster child for anti-democratic populism: former US president Donald Trump. He is in the crosshairs of prosecutors in both New York (for potential tax and other business-related crimes) and Atlanta (for his efforts to overturn the 2020 US presidential election).

Some of Trump’s closest associates also have targets on their backs. Rudolph W. Giuliani, the former mayor of New York City who became Trump’s personal lawyer, is facing a federal criminal investigation into his dealings in Ukraine.

If he is charged, Giuliani, who rose to prominence in the 1980s as a mafia-fighting federal prosecutor, will not be the first Trump crony to face criminal prosecution. He will follow Trump’s campaign chairman, Paul Manafort, and his first national security adviser, Michael Flynn. The difference is that, with Trump no longer president, Giuliani cannot count on a pardon.

To Trump’s acolytes, such investigations are utterly illegitimate: the prosecutors are representatives of a “deep state” bent on protecting the corrupt elites from a Trump administration that heroically stood up to them. Trump’s detractors, meanwhile, may be feeling schadenfreude: after years of open contempt for US law, Trump and his cronies are finally getting their comeuppance.

If only.

Most of the prosecutors who have investigated Trump and his associates have done so as if on tiptoe. At times, it seems that they are seeking not just a smoking gun, but a smoking cannon and a neatly stacked pile of dead bodies. Prosecuting anything less wouldn’t be worth the onslaught from Trump World.

More broadly, it may be premature to conclude that America’s democratic institutions have proved their resilience by weathering the Trump stress test. A newly unsealed court document revealed that, last year, Trump’s Department of Justice (DoJ) secretly obtained a grand-jury subpoena to identify a Twitter user who had been mocking US Representative Devin Nunes, a close Trump ally.

Under President Joe Biden, the DoJ withdrew the subpoena. But that doesn’t change the fact that career prosecutors at the DoJ did not balk at carrying out the Trump administration’s lawless order.

This left Twitter’s lawyers to stand up for the rule of law: “Twitter is concerned the subpoena may not be supported by a legitimate law enforcement purpose,” the company’s motion stated. In that case, “there cannot be any need — let alone a compelling need — for the government to unmask the user”. Moreover, Twitter’s motion urged the court to conduct a “searching analysis” to determine whether the subpoena “violates the First Amendment”.

This was hardly the only instance when the DoJ accommodated the Trump administration’s legally questionable demands. Even when top officials refused, there were those who were willing to flout their obligations.

For example, in the Trump administration’s last days, the DoJ’s acting attorney general, Jeffrey A. Rosen, refused to go along with a harebrained scheme to force Georgia lawmakers to overturn the state’s presidential election results. But the Trump administration nearly ousted Rosen over his resistance — a plan hatched in cahoots with the then-head of the DoJ’s civil division, Jeffrey Clark.

So, yes, America’s legal institutions have ostensibly snapped back to duty, but they clearly bent very far under Trump. How can we be so sure that they won’t bend again — or even snap — in the future?

Meanwhile, in the UK, Prime Minister Boris Johnson is under investigation for numerous ethical improprieties. This implies that the rule of law is alive and well, even if the wheels of justice move slowly. And yet, again, there is reason to doubt that they will always move forward.

Johnson has initiated a number of investigations of his Cabinet colleagues — the most prominent concerning allegations that Home Secretary Priti Patel bullied her staff. Ultimately, Johnson’s independent adviser on the code governing ministers’ behaviour determined that Patel had violated it — a finding that would usually lead to a minister’s resignation. Yet, Johnson overruled the independent inquiry’s findings. As for investigations into his own improprieties, Johnson has stonewalled.

A similar story is unfolding in Austria. Chancellor Sebastian Kurz has often manipulated and undermined investigators and prosecutors. He has called a corruption probe triggered by the so-called Ibiza Affair — when the leader of Kurz’s far-right coalition partner was caught on video offering to trade lucrative public contracts for cash — “deeply flawed”.

Kurz himself is now being investigated for allegedly committing perjury during the Ibiza Affair investigation. But the timing of the investigation — a moment when Kurz’s popularity has cratered — is probably not a coincidence. The scandal broke in 2019, but it is only now that Austria’s judges and investigators have had the courage to challenge Kurz.

Populists claim to base their strength on representing the will of the people, including demands for security and “law and order”. But the truth is that populism is fueled by human weakness — timidity, mendacity, and cupidity — from which legal institutions are not immune. And while populism may be sputtering in many places, human weakness is an infinitely renewable resource.

Nina L. Khrushcheva, professor of International Affairs at The New School, is the co-author (with Jeffrey Tayler), most recently, of “ In Putin’s Footsteps: Searching for the Soul of an Empire Across Russia’s Eleven Time Zones”. ©Project Syndicate, 2019. 

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