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No Consequences

Elite impunity has created a crisis of democratic legitimacy Thanks for the memories! | Obama White House Archives

It keeps happening. At a rally in April, North Carolina congressman Madison Cawthorn assured voters that, should Republicans retake the House, they would “investigate Anthony Fauci and send him to jail for lying to Congress.” That same month, a Republican gubernatorial candidate in Minnesota called for the imprisonment of the Minnesota secretary of state. Kari Lake, erstwhile news anchor and likely the next governor of Arizona, has made it a hallmark of her campaign to call for the arrests of a variety of journalists and political opponents. These demands have become increasingly common since 2016, when Donald Trump threatened to jail Hillary Clinton in a live TV debate, and often led his rallies in chants of “Lock Her Up.” Trump himself is now the subject of at least four criminal investigations, although it seems unlikely that any of them will end with the former and potentially future president getting locked up. A considerable amount of American political rhetoric now consists of threats to imprison political opponents, and some substantial portion of the public seems to relish the possibility. Something has gone very wrong in the legitimacy of political opposition and democratic procedures; not for the first time, but in a particularly sudden and virulent way. How did we get here?

The history of our political conjuncture is the history of elite impunity. By “impunity,” I mean the ability to cause harm without facing consequences, a form of injustice predicated on an underlying structure of inequality. For most of human history, impunity was a feature of sovereign power: divine kings could not be sued, wars and executions were sovereign prerogatives, and the sovereign was the source of law, thus not subject to it. But sovereign impunity was incompatible with a democratic, constitutional order. The English Bill of Rights of 1689 constrained the powers of the monarch and made the government an entity subject to the law. (Many economic historians believe this constraint meant that the state would not arbitrarily violate property rights or default on its debt without recourse, and thus England became a safe place for investment). A central goal of the French Revolution was to establish a single, unified public law that applied to everyone, as Louis XVI learned to his considerable distress. Article VI of the U.S. Constitution establishes itself as the supreme law, implying that everyone and everything must be subject to it, but a long series of Supreme Court cases have applied and argued over the common law concept of “sovereign immunity,” meaning the inability for the government to be sued without its consent.

The doctrine of sovereign immunity remains contested, but by the nineteenth century in most constitutional polities the problem of impunity had been pushed into non-democratic spheres, like military and finance. Today we are most familiar with impunity in the context of mass violence: the Rome Statute of 1998 that established the International Criminal Court stated that the signatories were “determined to put an end to impunity,” though the Court has had little success. Within a month of its entering into force in 2002, George W. Bush signed the American Service-Members Protection Act, also known as the Hague Invasion Act, asserting that the United States would not allow its personnel to be subject to the ICC. Twenty years later, the United States still is not a participating member of the ICC; neither is Russia, China, or India. The problem of impunity in international law remains so intractable that the International Refugee Committee has declared that we live in an “Age of Impunity.”

My own research on impunity and financial crises finds that impunity tends to be the result of three problems: culpability, in that elites or heads of state are seldom personally responsible for any crimes; precedent, in that the human imagination for wrongdoing consistently outstrips laws and regulations; and scale, in that most legal systems are better equipped to handle individual crimes instead of social ones. Together, these problems create extralegal or a-legal spaces where social harms are perpetrated on a very large scale, benefiting a very small group of people, but nobody is legally at fault.

From the eighteenth century onward, the increasing complexity of economic and political institutions and the increasing abstraction of governance has tended to diffuse impunity from individuals to impersonal forces like “markets.” Moreover, in economic or political contexts, harms are more difficult to assess than in contexts of actual violence, and for that reason, popular perceptions of impunity can be at least as destabilizing as actual instances of lawbreaking without consequences. Since impunity and democracy tend to be incompatible, repeated episodes of elite impunity can sediment over time, eventually producing crises of political legitimacy. Hence the world around us.

A central fact of American political life today is that much of the Republican electorate and an increasing number of their elected officials publicly claim that the 2020 election was stolen and that the Biden administration is illegitimate. Continued liberal panic over the danger of Trump’s “Big Lie” feeds the proleptic fear that the 2024 election will itself be stolen. Justifiable though that panic is, it obscures the point that our current legitimacy crisis has been unfolding for decades. After all, the Democratic electorate, party officials, and media outlets spent the Trump years claiming that Russians meddled with the 2016 election, and that Trump might be an illegitimate puppet of foreign powers, ultimately culminating in the circus of the Mueller report, which emphatically did not result in Trump behind bars. Before that, the Obama years were characterized by the racist “birther” conspiracy, widely propagated by Trump, and the belief that his administration was an illegitimate foreign (Muslim) takeover. Some readers may remember the conspiracy theories around the Diebold voting machines in Ohio in 2004, which seem quaint now, but felt entirely more plausible then, given that in 2000, George W. Bush really didsteal an election.

But the legitimacy problem may have started as early as 1992, when after twelve years of Republican rule that remade the shape of class conflict and inequality, Bill Clinton was elected with 43 percent of the vote. Many Republicans believed that Ross Perot cost them the election, and Senate Minority Leader Bob Dole claimed that Clinton did not have a “mandate” to govern. Newt Gingrich certainly acted accordingly after 1994, and although I am not aware of a widely held belief that the 1996 election was “stolen,” the Clinton years were characterized by right-wing anti-government violence, two government shutdowns, and, of course, impeachment. This narrative points to the profoundly depressing conclusion that George H.W. Bushmay have been the last “legitimate” president of the United States.

The legitimacy crisis shapes and is shaped by the perception of impunity. If you think the government is illegitimate, you will probably think that it is committing crimes and getting away with it. If you think elites are doing terrible things and not being held accountable, you will probably begin to lose confidence in the legitimacy of government and the rule of law. These are fertile conditions for conspiracy theorizing, a paranoid style of politics, and what the political theorist William Connolly calls an “ethos of cultural revenge.” But as much as Ross Perot and Newt Gingrich contributed to the long-running delegitimization of American democracy, and as much as Watergate or Iran-Contra may have set the precedents of presidential impunity, probably few people’s political subjectivity today is constituted by those moments. Instead, the crucial episode for understanding the present conjuncture of impunity and legitimacy was the first Obama administration.

The Bush administration deliberately and knowingly lied in order to perpetrate a war that probably killed well over a quarter-million people. It presided over a regime of surveillance, torture, and the apparently permanent degradation of civil liberties, and it concluded by bailing out bankers who precipitated a global financial crisis that cost tens of millions of people their jobs and homes. From Obama’s victory in November 2008 through the first months of his presidency, the media speculated wildly about the possibility of investigations, prosecutions, and truth-and-reconciliation commissions. The Obama administration did none of those things. No one was prosecuted for torture, and Guantánamo Bay remains in operation today. Surveillance, secrecy, and extra-judicial killings all intensified. The banks and the auto industry got bailed out, the bankers got their bonuses, and only one, Kareem Serageldin of Credit Suisse, went to prison, and only for thirty months. Instead of either truth or reconciliation, the Obama years brought insufficient recovery followed by austerity, persistent unemployment, the significant reduction of Black wealth, widening inequality, and a decade of economic output that lagged persistently behind its potential.

The Bush administration was egregious; the Obama administration was typical. By 2007, most countries in the OECD had arrived at some variation of a neoliberal consensus, in which two rival political parties (or blocs of parties) contended over a relatively narrow policy space committed to balanced budgets, limited welfare programs, market solutions, privatization, and globalization. Whichever party was in power when the 2008 crisis hit bailed out its banks and lost power to its historic rival party by 2012 (Germany is the sole notable exception): from Republican to Democrat in the United States in 2008, but also in the UK, where Gordon Brown’s Labour government bailed out its banks and implemented crippling austerity, only to lose to David Cameron’s Conservatives in 2010. In Ireland, Micheál Martin’s Fianna Fáil bailed out its banks (Anglo-Irish Bank turned out to have been cooking its books), which blasted a hole in the government budget, necessitating an IMF bailout. The bailout came with austerity, and Fianna Fáil lost to Enda Kenney’s Fine Gael in 2011. In France, Nicolas Sarkozy’s center-right UMP presided over multiple rounds of austerity and then lost to Fran?ois Hollande’s Socialists in 2012. In 2011 and 2012, governments also fell in Italy, the Netherlands, Portugal, and Spain. As the philosopher said: and so on.

In each case, the historic rival continued the bailout and austerity policies of its predecessor, thereby precipitating a generalized crisis of democratic legitimacy. PASOK, one of the two main parties in Greece, was annihilated at the polls, from 44 percent in 2009 to 12.3 percent in 2012 and 4.7 percent in 2015. Its collapse gave us a dreadful new word: PASOKification, to describe the implosion of these historic centrist parties in the wake of the 2008 crisis. In Italy, the economist Mario Monti presided over an unelected technocratic government from 2011–2013. Belgium went 589 days without being able to form a government of any kind, which actually produced bettereconomic outcomes because they had no government to enact austerity measures. By November 2016, Hollande’s approval rating stood at 4 percent, and the following year the former investment banker Emmanuel Macron became president of France at the head of an entirely new political party.

With the center delegitimated, the space of politics was briefly open to radical contestation. Greece was again the limit case: after the collapse of PASOK, the 2015 election was won by Syriza, then standing for a coalition of the radical left, but the Golden Dawn, a collection of explicit neo-Nazis, also emerged as the third largest political party. Hungary’s Viktor Orbán was an early warning: in November 2008, Hungary got a $15.7 billion loan from the IMF to “restore confidence in Hungary’s financial markets,” under the condition that “cuts in budgetary expenditures” followed. The Hungarian Socialist Party presided over one year of crippling austerity before Orbán’s Fidesz party trounced them in the 2010 elections. Fidesz won enough seats that they were able to pass a new constitution the next year, and Orbán is still prime minister today, busy implementing what is usually called “illiberal democracy,” persecuting minority groups and repressing journalists, academics, and the judiciary.

In this way, the much-bemoaned rise of “populism” filled the void that opened when the price of bailouts and austerity destroyed the old parties. That open moment of potential (Bernie Sanders or Donald Trump? Jeremy Corbyn or Boris Johnson?) has now conclusively been won by the right, and most of the left projects have been crushed. Where older parties have survived, their ideology and composition have radicalized. In this way, the politics of the legitimation crisis are moving toward a conclusion: a global rightward turn, authoritarian and xenophobic, explicitly opposed to democracy as such, enthusiastic about the use of state violence against political opponents, who by definition do not represent legitimate opposition.

There has been a lot of blustery talk lately about the possibility of a second American civil war. The first one looms large in the otherwise limited American historical imaginary, providing an iconography and set of examples whose commonality can be mistaken for typicality due to the absence of a wider repertoire of knowledge and analogies. Writers on the theme of a second civil war seem to have in mind the wistful heroism of Ken Burns documentaries instead of the squalid reality of modern civil wars, in which semi-criminal militias grindingly perpetrate massacres and ethnic cleansing for years or decades without a decisive endpoint. It may instead be useful to remember that intractable crises of legitimacy, even in democracies, have often ended in purges instead of wars.

The concept of a political purge is indelibly associated with Stalin and the Soviet Union, which codes them as foreign and aberrant. Many purges were indeed the violent acts of establishing purported unity in dictatorships, like the many Soviet purges or the Nazi “Night of the Long Knives” in 1934. Others were violent but not dictatorial, like the French épuration légaleof 1944–1949, in which about fifty thousand Vichy officials and Nazi collaborators were stripped of their offices and civil rights, and nearly eight hundred people were executed, including Pierre Laval, the former prime minister. Others were neither violent nor dictatorial, as in the “lustration” in Eastern Europe in the 1990s, when former members of the communist security apparatuses were investigated and removed from public office, especially in the Czech Republic, Hungary, and Poland.

Although never called “purges,” there have been at least three, possibly four, moments in American history when the political order was recast after the removal of some large group of opponents. The first was the removal, expulsion, and flight of the Loyalists from the American colonies before the framing the Constitution. The second was the refusal of the congressional majority after the Civil War to seat Southern senators and representatives until 1868, which allowed for the two-thirds vote needed to pass the Thirteenth and Fourteenth Amendments. The third was the violent racist overthrow and suppression of Reconstruction state and local governments, and especially Black politicians, that allowed for the establishment of the Southern Jim Crow system. The bipartisan enthusiasm for the suppression of communists and socialists from American public life during the twentieth century might constitute a fourth. From at least the Palmer Raids in 1919–1920 to the persecutions of the House Un-American Activities Committee, the use of state violence, deportation, and incarceration strangled the political left. Truman’s “Federal Employees Loyalty Program,” for instance, fired some twenty-seven hundred federal employees and led to the resignation of twelve thousand more, during its peak years, between 1947 and 1956.

Whether called a purge or not, the systematic judicial removal of political opponents from public power has frequently been a component of transitional justice, when new regimes seek to establish the legitimacy of their new political order on the basis of stability and unity. Stability and unity have been in short supply thus far in the twenty-first century. When Republicans call for the arrest of their opponents, they are not calling for a civil war; they are calling for a purge. Likewise, when progressives imagine the January 6 committee removing Trumpian allies, or perhaps creating an opening to impeach Clarence Thomas, they, too, are envisioning a purge. But in the decision of purge-or-be-purged, it is easy to guess which American political party is likely to opt for which choice.

The opportunity to restore legitimacy through ending impunity came and went between 2008 and 2012. To be exceedingly clear, I am not predicting a purge and certainly not calling for one. Instead, the lack of legitimate prosecutions and investigations to restore a public sense of justice and faith in the rule of law has created a hole in our political imaginary, now filled by investigations or calls for arrests. There is a specifically American variant to these political pathologies, but the legitimacy crisis is international, as was the fallout of 2008 and the subsequent politics of austerity. There was no justice for the Iraq War, the 2008 crisis, the austerity years, and as a result the world around us is constituted by the frantic, inchoate desire to hold someoneaccountable for something, and how utterly powerless most people are to do just that.