In the aftermath of Justice Department inspector general Michael Horowitz’s report on FBI misconduct during highly sensitive investigations of Hillary Clinton’s emails, we might turn to an unlikely source for wisdom: Alexis de Tocqueville.
In the midst of any contemporary agitation, it’s always useful to turn to Tocqueville. And he can offer plenty of resources for us to think about our contemporary scandal-ridden Washington, its breaches of the rule of law, and its accompanying investigations. Rumors of wrongdoing and federal inquests are nothing new. They usually find presidents at one point or another during their tenure in office: Watergate, Iran-Contra, Whitewater, Lewinsky, Valerie Plame, and now the accusations of Russian collusion with the Trump campaign to influence the outcome of the 2016 election. The Obama administration largely escaped, though it may not have been for lack of evidence on certain matters. But to classify properly the power of scandal and investigation in our time requires thinking about how a modern democracy will hold itself accountable to the sovereignty of the people. We should labor for a republican remedy to the disease of executive-branch abuses of power. The bureaucratic remedy we have instead sought has only made us sicker.
Special Prosecutor Tocqueville
Near the end of Democracy in America, Tocqueville addressed the issue in a chapter entitled “What Sort of Despotism Democratic Nations Have to Fear.” Passages in this chapter are prescient in their description of what we now call the administrative state. Tocqueville fears that a tutelary “protective power,” one that “is absolute, thoughtful of detail, orderly, provident, and gentile,” will come to rule democracies. This power, strangely, is exercised under the shadow of the sovereignty of the people, to guide and keep them free. Such consolidated rule will concede to the people a popular vote at regular intervals knowing that it, ultimately, holds the only authentic authority.
Bent to its will, we regard its operations as beneficial to us democrats. Tocqueville notes that Roman emperors held an “immense and unchecked power.” This authority was abused “to deprive a man arbitrarily of life or property,” but, Tocqueville observes, those victimized were only a few; most were left alone. Modern democracy’s despotism, he says, will be different because the political fact of equality will make us into persons very different from those who lived in the age of aristocracy.
Such despotism emerges because persons who are “alike and equal” will tend to drift into their own worlds, Tocqueville observes. We trust our own opinions, believing them equal to everyone else’s — except for when we don’t. Equality tends to strip from us firm religious, traditional, or even community support for our opinions, inducing us to fall prey to the power of anonymous public opinion generated by various experts. Not wanting to be separate from everyone else, we hurriedly scurry under the cover of expert opinion, or what we perceive those around us to be accepting as authoritative.
How does this connect to federal investigations? As Tocqueville demonstrates, equality is the norm of democracy and supports its tendency to centralize. One energizer of said equality and the accompanying centralization of government is the executive leader, who will flatter the people with his belief in their equality. From the great powers the prince accumulates to himself will come an ever-flowing string of abuses on his part and allegations against him and his ministers by opposed partisans.
Citizens who perceive their government to be in constant turmoil might conclude that political freedom isn’t worth it.
Would we not also get vast, regular, encompassing investigations into the ways and means of those exercising power? Two tracks shape the modern presidency: There is a President’s particular agenda, whose broad outlines are usually clear enough to us; and running alongside that agenda — at times overtaking it — there are scandals and multiple lines of congressional and prosecutorial inquiries into what happened. We are never quite sure of the factual basis for such investigations. Most of us struggle to even keep straight who’s doing the investigating, but we are subjected to daily stories, interviews, press conferences, hearings, motions, grand juries and indictments, seeming to confirm that something untoward happened and that something should be done about it. The experts lead us.
The investigations we witness, conducted by independent and now special prosecutors and congressional committees, don’t necessarily break presidential administrations or offending agencies. But they are a near-permanent fixture, directing and influencing the works of a presidency. This owes in large part to the size of the administrative state, and the arbitrary ease with which its directives can be over or under-enforced. We struggle to know who’s in the right.
Unable to assess culpability and accountability, we may or may not be aware of the damage being done to the rule of law. The ubiquity of scandal alienates citizens from their government, lowering their trust in its intentions and workings. And the biggest fear is that citizens who perceive their government to be in constant turmoil might conclude that political freedom isn’t worth it. It’s just too much trouble. This is the beginning of apathy, which, Tocqueville warns, is the road to tyranny in a democracy: Indifferent citizens are easily cowed subjects.
Think of the defenses proffered to the House Government and Oversight Committee by various officials of the Internal Revenue Service during the scrutiny the agency faced over its obstructing many conservative organizations from obtaining non-profit status. The effect was to strangle in the crib a crucial part of civil society. The agency’s rules for scrutinizing applications seemed to afford IRS agents working in the Exempt Organizations section the authority to harass whomever it pleased. Yet the record that emerged indicated that these agents proceeded in bad faith, even if many of these agents were surely operating under the belief that such harassment was supported by their bosses (and ultimately President Obama). In the end, the groups that suffered obtained a financial settlement. There were no arrests, impeachments, or even public humiliations of various kinds. Lois Lerner resigned; she also took her full pension.
Tocqueville informs us that other vices peculiar to democracy, such as our aversion to formality, also emerge in our parade of administrative inquisitions. Democratic man goes straight for what he wants, sloughing off any bit of formality that he believes foolishly stands between him and his preferred object. However, as the late Justice Antonin Scalia was at pains to tell “living constitutionalists,” formality is the rule of law. It protects those who are weaker, says Tocqueville, because it shields them from the discretion of the powerful. Moreover, it acts as a break on our energies and impulses, requiring us to raise our conduct to socially expected norms. This is never more true than with regard to law and the workings of government. We shouldn’t be surprised, then, when observances of formality wane in our administrative probes.
Certain legal formalities are dismissed not only in the heat of an inquest — Horowitz’s report serves as a significant reminder of that — but also in the rules that govern its formal establishment. For a tutorial, you need only read what is widely regarded as Scalia’s masterpiece dissent in Morrison v. Olson (1988). Scalia lost the ruling 7–1, but his dissent on the constitutionality of the now-defunct Independent Counsel Act argued that the independent counsel it established was a prosecutor, though limited in jurisdiction, who stood outside of the executive branch while exercising executive power subject to virtually no accountability. The separation of powers had become an afterthought, Scalia intoned. This awesome degree of power in the hands of a prosecutor could enervate the president.
On one level, the independent counsel was a work of formality that provided clear legal authority to an investigation. However, the amount of power that an independent prosecutor had seemed to invoke the maxim: Let justice be done though the heavens should fall. Wasn’t this ultimately the downfall of independent counsel Kenneth Starr’s probe? As his investigation broadened in scope, as approved by then–attorney general Janet Reno, it became almost incomprehensible. Citizens started to nod with the Clinton administration: What is this about? When will it end? The upshot is that Justice Scalia’s dissent recalled the separation of powers, a core constitutional feature. We should build on it and other constitutional norms when it comes to redressing executive-branch misdeeds.
We should respect the separation of powers when it comes to redressing executive-branch misdeeds.
Reflect on the informalities of the current Robert Mueller investigation. Special Prosecutor Mueller was appointed to investigate “any links and/or coordination between the Russian Government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.” Appointing a prosecutor to find a crime with no real description or factual basis of being committed is something that strikes deep at the unwritten norms that anchor our Constitution. Not surprisingly, haste seems to cover the Mueller investigation from its inception. Andrew C. McCarthy, a former federal U.S. attorney and frequent contributor to NRO, has been masterful on this point. He argues: “In appointing Mueller on May 17, 2017, deputy attorney general Rod Rosenstein failed to comply with federal regulations that control special-counsel investigations.” Rosenstein tried to correct for this on August 2, 2017, with a memo, but roughly four-fifths of that document has been kept secret. Why? Is the factual basis relied upon by Rosenstein to support a special-counsel investigation now embarrassing in light of subsequent disclosures?
Mueller indicted three Russian businesses, one of which, Concord Management and Consulting, now wants to defend itself in court. Its lawyers have requested all documents from Mueller that support the claims made in the indictment. The response of Mueller is indicative, I think, of a lack of legal seriousness. The special prosecutor’s lawyers have argued that Concord was not properly given service of process, i.e., the means by which they know to appear in court. Now Mueller stands on formality! But that’s laughable, as McCarthy argues: Concord’s lawyers are literally in court and ready to defend their client. Will Mueller’s team have to prosecute a defendant that it seems to have indicted for show and had nowhere near the evidence needed for a conviction? If not, will he cut Concord from the indictment, thus communicating legal weakness in his overall case and signaling what many already think: that this is a political investigation searching for any evidence that can be used to cut down the Trump administration? Absent hard evidence of real collusion between Russian officials and the Trump campaign, what is likely to be the result of Mueller’s investigation?
Tocqueville’s fear of informality is that it would induce revolution in democracy. When those in government no longer respect law and its conventions, they unleash constant change in the carrying out of their purposes of the moment. Formality looks impotent and foolish to men driven to revolution. The retreat of law is made possible by the pursuit of politicized ends as “political necessity is turned into a dogma, and men lose all scruples about freely sacrificing particular interests and trampling private rights . . . in order more quickly to attain the public aim envisaged.” The real danger, we are told in the penultimate chapter of Democracy in America, is that revolution becomes permanent, “eternal.”
And that must be our fear. The best outcome at this point for the constitutional health and stability of our country will be for Congress to weigh any findings from Mueller’s investigation to decide if it should use its great tools under the Constitution to check abuses of power in the executive branch. If Republicans decide no further action is needed, then they will have to face the voters for that decision. Should Democrats, assuming they obtain a majority in the 2018 elections, attempt to impeach President Trump, they too will answer politically for that choice. In the end, we need a republican resolution of Congress taking on the executive branch — both in this situation, and for the inevitable abuses of authority in future presidential administrations.