Accountability vs stability vs independence

The United States’ Federal Bureau of Investigation, or FBI, has raided the residence of the former president, Donald Trump, at Mar-a-Lago in Florida. This is unprecedented in American politics, where ex-presidents have never before been the subject of law enforcement actions due to their actions in office. (One who could have been, Richard M Nixon, was famously pardoned by his successor Gerald R Ford. The decision to do so probably cost Ford re-election in 1976.)

At this time of writing, all is not known as to the why and wherefore of the raid. In the next hours or days, the exact warrant may be unsealed by court order and some more details will be available. The Washington Post has reported that the reason for the raid was the belief that Mr Trump had, in his possession, documents related to nuclear strategy that should have been handed over when he left office. These may not be related to the US nuclear programme; there would after all be even more interest among Mr Trump’s associates in countries like Saudi Arabia about the details of the Iranian nuclear programme, for example.

It is objectively unlikely that the FBI and the US Department of Justice, which supervises the agency, is carrying out a political vendetta. Yet that is naturally what the former president and his supporters in the Republican Party are accusing it of. And that is a dangerous development, true or false.

Two things need attention here particularly from an Indian perspective. First is the question of investigative and prosecutorial independence in a democracy. And the second is the balance between accountability and stability in a republic.

The relative independence of agencies like the FBI and even the Attorney General – the presidential appointee who presides over the Department of Justice in the US – should be a matter for envy in India. Agencies in India have never been truly independent. And now they have turned into completely transparent organs of political power. Within a few hours of Bihar Chief Minister Nitish Kumar leaving the National Democratic Alliance (NDA), entirely reasonable people were speculating as to how the Central Bureau of Investigation (CBI) or the Enforcement Directorate (ED) could be used against him or his party. Other opposition parties from the Trinamool Congress to the Shiv Sena have learned to fear the weaponising of such agencies. And they in turn have used the state police and related-law and order bodies as political weapons against opponents.

In the US, by comparison, the Department of Justice famously refused to cooperate with Nixon’s attempts to shut down the Watergate investigation. Even Mr Trump’s handpicked Attorneys General such as Bill Barr declined to interfere to the degree that Indian politicians (or Mr Trump) would consider normal. Yet this is a fragile and unstable equilibrium built on a few shared norms that can so easily be undermined and unwound.

The destruction of these norms is precisely what Mr Trump and his supporters intend. Perhaps it is deliberate self-protection. Perhaps it is a cynical disbelief in other people’s ethical standards. Perhaps a combination of the two. But the fact is that such norms cannot be upheld when only one side believes in them. The very expression of disbelief in the integrity and independence of the investigative system leads in the end to that system’s loss of integrity and independence. 

The second worry is the very fact of a public investigation into a former and possible future president, an investigation that has the power to end that politician’s career. If Mr Trump is convicted, for example, of deliberately failing to hand over records to the US National Archives, he will likely be forbidden by law from holding any public office in the US again. The ability to end a political rival’s career in this manner is powerful, and thus it has been used sparely in the US. That is one indication why past presidents have not been investigated in this manner.

That doesn’t mean that past leaders can be above the law after they leave office for acts they committed when in power. Clearly if Mr Trump has taken national security secrets, the law must be applied. Yet, the random use of state power against predecessors is deeply disruptive. In India we see this in the supposed investigation into the Gandhis of the Indian National Congress.

It also means that leaders who fear they will be prosecuted if they lose power refuse to give up power. This is what Pompey the Great and Julius Caesar feared as consuls in the ancient Roman Republic, and their fears caused them to hold on to power and send that Republic to its grave.

There is thus a reason why agency independence and a high bar for investigations of past leaders are both vital. Without them, a liberal Republic cannot survive.