Democracy requires leaving something on the table.  There are times in any electoral system when the ruling coalition will be strong beyond immediate contestation by the losers.  This may be the result of a stable parliamentary majority coordinated through the executive authority of a prime minister.  Or it may result from the alignment of legislative majorities with the chief executive in a presidential system.  In either case, there is the gravitational urge to run the table on power, to set policy preferences in stone, and to disable the minority from any effective subsequent challenges. 

For the period of democratic ascendancy following World War II, the desire to push power to the maximum was held in check by repeat play institutional actors who understood that what goes around ultimately comes around.  Stable, relatively centrist political parties and an increasingly professionalized state apparatus prevented momentary politics from pulling too far from a generalized consensus, notwithstanding the intensity of partisan conflict in any given election cycle.  Playing the long game recognizes interests beyond the immediate.  Moderation, in the words of Joseph Schumpeter, demands “democratic self-control” and, in turn, “this involves a lot of voluntary subordination.”

Nowhere is this more evident than in the question of the use of criminal prosecutions against defeated political foes.  The current democratic world, challenged by populist demands for the immediacy of political rewards, does not well tolerate forbearance, including in the criminal domain.  At present, the prosecution of political opponents is a signal of democratic backsliding.  For example, Istanbul Mayor Ekrem İmamoğlu, the key rival to President Erdoğan in Turkey, has been in prison for most of the current election cycle on suspicious charges.  The government led by Lech Kaczyński in Poland freely brought criminal charges against its opponents, including Wojciech Sadurski, a contributor to the Democracy Project.  In the United States, chants of “lock her up” marked a descent to unprecedented threats in the 2016 presidential election.  In turn, once out of office, President Trump faced local prosecution in New York on charges of paying off a former mistress that strained credulity as a matter of law.

When addressing prosecutions of a president, I previously set out four conditions that allowed for personal accountability without unleashing a storm of political retaliation. First, the transgression must be a recognized legal wrong, termed a malum in se, and not a technical violation of regulatory law.  Second, there must be political independence of the prosecuting authorities.  Third, there must be rigorous adherence to procedural protections of the accused.  Finally, there must be evidence of guilt sufficiently powerful to persuade the court of public opinion, even before trial.  Under this standard, the Trump prosecutions ranged from preposterous to serious.  But as a presidential election loomed, particularly with a polarized electorate, prosecution and retribution took on a central role politically, which is never a healthy development for a democracy.   

The Supreme Court defanged the most obvious risk of political retribution in the presidential immunity decision, invoking the words of George Washington for the proposition that the Constitution must stand against the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” The Court’s holding in Trump, much maligned in favor of the easy invocation that no man is above the law, was limited to the president himself – and probably explains why no efforts have been made to indict former presidents Clinton, Obama, or Biden in the current frenzy.  But that decision does little to stem the rush to the criminal law as the medium to settle political grievances against opposition officials and leaders beyond the president himself. 

In President Trump’s second term, new boundaries have been crossed in the United States.  Where once the president maintained distance from the immediate prosecutorial decisions of the Department of Justice, that restraint seems like a faint memory.  In quick order, we have seen presidential demands for the prosecution of individuals (not crimes as such), improper appointments of federal prosecutors for the express purpose of going after political enemies, and the elimination of broad swaths of professionalism in both DOJ and investigative agencies. 

What will happen when power shifts?  Is there any realistic prospect that conditions will return to the norms of yesteryear?  This is not just an American question but one faced in every country where populist rule has waned.  The unfortunate answer is that it is hard to see any shift in power that does not immediately engage in retribution.  In the U.S., it is almost an article of faith among the activist base of the Democratic Party that the failure of Attorney General Merrick Garland to dedicate full prosecutorial resources to prosecuting Trump was critical in facilitating a second term.

The seemingly inescapable answer is to retaliate while one has the ability.  Partisans will reasonably see the history of the past decade as one of escalation and the last period as one of complete norm busting.  The avenue of escape is to hold back and await the adversaries’ next move, the classic tit-for-tat testing of Robert Axelrod. But the social media-fueled understanding is that each side has exploited control of the criminal justice system to escalate and to capture the electoral system for impermissible ends.  The present state of polarization makes any appeal to forbearance appear simply a failure of principled commitment.  The key to tit-for-tat restraint is the understanding that each side will subsequently hold momentary advantage.  Unfortunately, the lesson of the day seems to be to hit hard when possible before the enemy regains the upper hand.

Increasingly, it is hard to remember that it was not always thus.  There was a time in the not distant past when institutional constraints were generally honored.  Indeed, the responses to the first Trump presidency featured targeted proposals for reclaiming the professionalism of the executive branch, with DOJ independence in the front row of overhauls. Those responses saw the problem as one of institutional failure and the remedy as one of institutional repair.    

In the interim, our politics have coarsened and the discourse is not one of weak institutions but of bad people.  The language of retribution and future individual deterrence has become the norm in Washington and will likely increase as the end of the Trump era approaches.  There is the risk that an activist set of institutional actors will set aside concerns for buttressing institutions in acquiesce to the seemingly inescapable demands for prosecution of the prior Administration.  Nor will they lack material in the increasingly self-enriching and unrestrained aggrandizement of the Executive currently underway.

But restoring a functional democracy requires the re-stabilization of the institutions of governance.  Such a working constitutional order depends heavily, in the words of William Gladstone, on “the good faith of those who work it.” Ready recourse to the criminal law will never strike political opponents as evidence of the needed good faith in the exercise of state authority.  One of the looming challenges for a transition away from populist excess, in the U.S. and abroad, will be resisting the angry claims for immediate retaliation for the many just grievances arising from the misuse of power.  That powerful political demand threatens to overwhelm any politics of forbearance, even though future democratic stability may depend on the latter.