The Death Knells of American Democracy?

Part Two of Osita Nwanevu and Quinta Jurecic's debate.

Osita Nwanevu of The New Republic sat down with Quinta Jurecic of Lawfare to debate first principles and discuss how their views of American democracy have shifted over the past five years. What follows is a lightly-edited transcript of the second half of their conversation. You can find Part One of their conversation here.

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Osita: Part of the struggle in combating antidemocratic attitudes today is that we are missing a framework in which we can say, “Here are the reasons why, even if it looks like you're losing this particular cultural battle, there's something about these values that is going to be there for you when you need them.”

Quinta: I think that's right. The core of the question is always going to be whether it’s even possible to provide that case for democracy in a way that grabs people. Over the past five years, I've spent a lot of time trying to get people to care about aspects of the government that are objectively foundational to democracy but are hard to explain. Certain aspects of independence of the Justice Department—I would argue that is foundational to democracy. And it shows up in Locke’s Second Treatise of Government, where you need rules so that people know what it is that they can and can't do, and you're not just subject to the whims of the person who happens to hold power at the time. That is critical if you're going to sustain a democracy, which has to be a system that operates in a predictable way, and you can trust that you’re not going to be screwed over when the next person takes power.

With that in mind, I would argue that Trump's attacks on the Justice Department—firing the FBI director, pushing for investigations of Hillary Clinton and James Comey, trying to get rid of the Mueller investigation—go to the absolute core of what democracy is and what it’s supposed to do. And I’ve had so many experiences where if you're trying to explain to people why that's important, it's not instinctive. People are busy, they have jobs, they have to put dinner on the table.

I had a conversation with a friend who suggested it boils down to Maslow's hierarchy of needs. People will care more about making sure they have food and healthcare than these abstract questions about who can be investigated and under what circumstances by a bureaucracy they don't really know anything about. And I don't really know what to do with that.

I think one way to handle it is to look back to John Maynard Keynes and say that in order for a democracy to be self-sustaining, people need to understand that it will provide for them. And that the economic system under democracy will sustain them so that you can then have the time to think about all these big questions about the rule of law, law enforcement independence, etc. I think that's one option. On the other hand, it strikes me that it doesn't really answer the question because it's just another way of saying, “Well, we need to make sure that people are fed and have access to healthcare. And then they'll understand the big principle.” But it's not quite defining what the big principle is. It strikes me as kicking the can down the road.

Osita: This is part of the reason why I go back to institutions. For me, somebody who was writing a little bit—not as much as you were or other people who were on the beat specifically were—but a little bit about Trump and the Justice Department and the Muller investigation, in the back of my mind I was thinking to myself, “Well, he's just going to get away with this, right? I can write about this. I can tell people about it. We can be mad about it. But just given the way the system has been designed, he's gonna get away with it.” And I think that that's the reaction people have to a lot of things in politics. Even if they don't understand the specific structural defects of the Senate or whatever, there’s a baseline level of cynicism about what goes on in Washington that’s the product of a sense that it’s not responsive to democratic will. That it wasn’t even before Trump got there.

And it's weird that most Americans really do deeply believe in democratic values and were appalled by Trump, upset by his presidency and violations of the law and all of those things, but aren’t willing to think about the fundamental building blocks of the political system. There's not really a sense of urgency about it, as much as people believe in democracy. Our values are in one place and the system is in another, and we just sort of accept as a matter of course that the system is what it is. It’s kinda-sorta like democracy and that’s close enough. I think even beyond what you were talking about, the fact that people have immediate, material needs and want you to talk about healthcare means there’s a baked-in level of ambivalence or resignation about the extent to which the law really applied to wealthy people and powerful politicians to begin with even before Trump was president.

Quinta: I think that's right. In the case of Trump, it's obviously right. If you go back and look at the New York Times reporting on his various business interests, there were just incredible amounts of fraud going on without any enforcement whatsoever. It’s a demonstration of how this guy got a free ride from a number of institutions. As you said, on some level, there is an instinctive sense that this system is not built for the average person. And on another level you can say, “Well, actually, it's a system of representative democracy and every person has an input in this way and the other.” But then if you really look at all the pieces fitting together, I would argue essentially that once Trump fired Comey and the Senate did nothing that was the end of it—of course he was going to get away with it.

And so the problem here I think—and you're seeing this now in how the Justice Department is handling various loose ends of litigation that are left over from the Trump administration—is that you can make an argument that people really need to see that the system is working for them. That this machine can be turned to work for the common good, holding people who have done wrong accountable. On the other hand, there's also a very good argument for the same institutional factors that Trump was attacking pulling in the other direction and saying, “No, no, no, we don't want to do that. That's too politically toxic. We don’t want to investigate Trump. We don't want to prosecute Trump. We want to maintain our independence. We don't want to wade into the political thickets.” There is a genuine tension there. And I take both parts of that argument seriously. I think whatever the “right” answer is, it’s going to be very fact-specific. But I do think you’re seeing it already—not quite as explicit as Obama's “Look forward, not back.” But it is there.

Osita: I think that’s important too, because we have talked so much about the extent to which democracy is threatened by anti-democratic attitudes on the right. But I think that there are a lot of attitudes that aren’t anti-democratic per se, but sort of sit crosswise with democracy. This idea you brought up, that we shouldn't go after Trump or people in his administration and let political bygones be bygones—out of sportsmanship, basically, or the sense that it would be divisive for the country—that is an attitude that undermines the rule of law. It’s not a scary kind of attitude. It's not somebody saying democracy sucks and we want authoritarianism. But it is an attitude that sits above basic democratic values within our political discourse.

Bipartisanship is another one. “The majority of the American people might want X, but we really need to find a way to get this minority of the population on board so we can get a supermajority. That's going to be more legitimate than something we just did on our own, even if we truly represent the majority of the American people on this issue.” Again, that's not an attitude that presents as hostile to democracy. It's something that feels nice and that we're used to in our politics. But I don't think you can see it any other way than as a system of strange virtues that seem to be doing their own part to undermine democracy and prevent us from really protecting or improving our political institutions.

This effort that we are now seeing in Congress, to pass a set of voting reforms that are going to protect the right to vote across the South and that, if it was written properly, might do something about partisan gerrymandering—the thing that's holding that up is this sense that it would be wrong for the Democratic Party to do it on its own, that you have to extend a hand to a party that's been increasingly hostile to basic democratic values. That sensibility seems like its own kind of threat to me. I don't know if you see things the same way.