Aziz Huq on the Comey Firing

The Comey Firing in (Comparative) Context
Aziz Huq
Take Care
May 11, 2017

President Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis?  But are these even the right questions to pose?

Recent comparative law studies of democratic erosion suggests not. Neither question directs attention to the most pertinent repercussions of Comey’s termination. For illegality is not a necessary, or even common, characteristic of antidemocratic change. Worse, the very terminology of “crisis” presupposes a narrative structure that democratic decline singularly lacks in practice. There are better questions—ones that are both more difficult, and more troubling—that should be posed today.

Democratic decline is a recurrent phenomenon of the early twenty-first century. My colleague Tom Ginsburg and I recently mined Polity data to identity 37 recent instances in which the quality of a nation’s democratic institutions shrank substantially. Examining these comparative cases—which range from Poland and Hungary to Thailand, Egypt, and Turkey—illuminates the institutional mechanisms of democratic decline. It hence provides guidance for thinking about pathways along which antidemocratic institutional change might proceed closer to home.

Taking this comparative perspective, a threshold lesson is that the road away from democracy is rarely littered with overt ruptures in the formal rule of law. To the contrary, the modal contemporary path away from democracy under the rule of law relies centrally on actions within the law. Central among these legal measures is the disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers and related legislative reforms of institutions’ designs.

Aziz Huq