2019 Wright Memorial Lecture - “Institutions for Protecting Constitutional Democracy: Some Conceptual Preliminaries" by Prof. Mark Tushnet

By Peter Boisseau

The eminent Harvard Law School professor who delivered this year’s Cecil A. Wright Memorial Lecture says Americans can’t rely on the legal system to hold U.S. President Donald Trump accountable for allegedly conspiring with Russia in the 2016 election.

“My general view is that we in the U.S. have to be pretty skeptical about the ability of the law to solve our problems,” Professor Mark Tushnet said in an interview following his lecture, which outlined why constitutional and other legal safeguards – no matter how well designed – are not very good at protecting democracy.

Russia’s interference in the 2016 presidential election and alleged collusion with Trump and his campaign is the focus of an investigation by special prosecutor Robert Mueller. But while many are anticipating his report will be the deciding factor, Tushnet does not expect it will.

• WATCH the 2019 Wright Memorial Lecture video featuring Prof. Mark Tushnet

“The Mueller report might help, but it’s not going to be the end of the problem because the president is already building a case that Mueller is just another politician out to get him,” Tushnet said.

“We are going to have to rely much more on the norms of good political behavior. It’s not that the law is going to be irrelevant to the political outcome, but it’s not going to be the solution.”

While the law has been “reasonably successful in pushing back against Trump,” Tushnet added the president probably has at least two years left in office, and a lot more damage can be inflicted on U.S. democracy during that time.

“And depending on how vigorously Trump’s supporters defend him, the legal outcome may not influence the political outcome enough to make a difference.”

“It’s not institutional design that matters, but political leadership. That is what determines whether anti-corruption investigations succeed,” said Tushnet, the William Nelson Cromwell Professor of Law at Harvard.

A former president of the Association of American Law Schools, Tushnet’s career spans from clerking for legendary U.S. Supreme Court Associate Justice Thurgood Marshall to co-authoring one of the most widely used casebooks on constitutional law.

He told the audience his current research has led him to believe courts and anti-corruption agencies – which he calls “Institutions Protecting Democracy” or IPDs -- only play a small role in preserving constitutional democracies, regardless of whether those institutions are permanent or designed on an ad hoc basis.

In that light, he said legal scholars should probably concede there are better ways to protect democracies than relying on the rule of the law.

“It’s not institutional design that matters, but political leadership. That is what determines whether anti-corruption investigations succeed,” said Tushnet, the William Nelson Cromwell Professor of Law at Harvard.

“And if design doesn’t matter much, maybe we should leave the domain of concern over preserving democracy to political scientists and sociologists. I think that wouldn’t be a bad outcome.”

Coming from Tushnet, that may have seemed like a particularly jarring assessment to an audience largely comprised of law faculty, law students and lawyers.

And it runs contrary to the prevailing narrative in U.S. media and legal commentary that, in the highly polarized atmosphere around Trump’s presidency, the only way forward is to rely on an objective investigation to help restore democratic norms.

Tushnet conceded many other scholars still maintain that high courts and similar institutions have a key role in preventing the collapse of democracies. However, that doesn’t persuade him.

“They may have a theoretical ability to do that, but experience strongly suggests that it almost never actually occurs,” he said.

“That doesn’t mean constitutional courts and these other institutions don’t do valuable work, but it might be that protecting democracy isn’t among the valuable things they do.”

Citing recent events in countries such as Brazil, Tushnet said there are many “conflicts of interest” that can threaten a country’s democratic stability. More broadly, for all democracies, the most obvious conflict is the “law of politics” itself.

“When both the executive and the legislature are controlled by the same party, everybody has an interest in sweeping corruption under the rug,” he said.

“And when they are controlled by different parties, anti-corruption investigations may well be affected by partisanship.”

In such an environment, nothing escapes suspicions of political bias, especially investigations like the one headed by Mueller, a life-long Republican.

“In the U.S., we might ask, can a Republican special counsel be impartial when it comes to investigating a Democrat, or for that matter, when investigating a Republican?”

Political partisanship may be constrained to some degree by professional norms, such as an investigator or agency refusing to be directed to do illegal or unethical things.

Other practices can also help counterbalance political influence, such as the Canadian norm of appointing current or retired judges to head commissions of inquiry, he said.

But inevitably, the judge’s track record as a liberal or conservative will become part of the debate.

The real lesson to be learned is that in a world of political parties, everything is about politics.

“Every choice and decision will be viewed by partisans as potentially the product of some hidden partisan game.”

Watch the video: