Deborah Daniels: Undermining our institutions is a threat to democracy

I am becoming more and more distressed about the undermining of our democratic institutions—the underpinnings of our democracy—and its implications for our future.

We used to pride ourselves on being a “nation of laws, not men.” We upheld our civic institutions as the glue that held our society together and gave our country credibility on the world stage as we stood against autocratic societies.

Now, people openly applaud political commentary that denigrates the U.S. Department of Justice and other institutions that are vital to a healthy democracy. There is continued railing about the “deep state,” seeming to suggest that nonpolitical, career public servants are bad for the country and that only highly political (Republican) appointees should work for federal agencies.

The first significant attack on the courts by a public official was that of President Obama in his 2010 State of the Union address, where he publicly blasted the U.S. Supreme Court’s Citizens United decision—in the presence of the court. This was a marked departure from past presidential practice. Regardless of its makeup or our disagreement with its decisions, we always knew as a society that respect for the court was critical to our democracy; the president was expected to set that example.

Watching the address, I was stunned. Practicing lawyers are taught the importance of respecting an independent judiciary, even when judicial opinions are contrary to what we might prefer or believe. Now, public figures openly accuse judges of political bias when they disagree with the outcome of a case. Media routinely mention the appointing president when reporting on judicial decisions, implying bias based on that fact.

During my years in law enforcement, I understood that it is as important to pursue wrongdoing by one’s political compatriots as it is to prosecute wrongs by those on the other side of the aisle. But now, the Justice Department is shrilly accused of political bias when it brings a clear-cut case against a former president for illegally retaining highly classified documents and seeking to obstruct the FBI’s investigation into the facts of the case. The same accusations are being made about the election fraud indictment issued on Aug. 1.

It astonishes me that some of my political friends applaud this criticism, buying into social media hype and extremist rhetoric and parroting the false claims of the accused in both cases because he is of the same political party.

The most recent indictment highlights our society’s departure from the single most important thing that has always set us apart from autocracies and even some other democracies: the peaceful transition of power after a presidential election. Despite overwhelming evidence that President Biden won the 2020 election, many leading Republicans, at the urging of the losing candidate, continue to insist that the election was fraudulent. And some of the chief advocates of overturning a valid election were lawyers—the people whom Alexis deTocqueville described as “the most powerful barrier” against “the unreflective passions of democracy.” Several have now earned the title “unindicted co-conspirator.”

Their actions and those of the ex-president culminated in the attempted insurrection on Jan. 6, 2021, following attempts by various Republican officials, state and federal, to undermine the electoral system in order to declare their candidate the winner. According to congressional testimony, the former president even tried to get the Justice Department to allege nonexistent fraud in order to have legitimate state electoral results overturned. These are the hallmarks of autocracy.

Our “great experiment” is fragile. By allowing the undermining of our civic institutions, we threaten our democracy’s very survival.•

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Daniels, an attorney with Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments to ibjedit@ibj.com.

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