Can Participatory Impeachment Defend Democracy from Partisan Justice?

Why is it that, in the impeachment trial of Donald Trump, his co-conspirators participated as both judge and jury in the process? This would not be an acceptable way to organise a legal trial, so why does it make sense for ‘political trials’? One answer to the question is simply bad institutional design. So how can we redesign our democratic institutions to avoid this situation, where justice, rather than being blind, is determined by partisan blinkers?

To understand how we arrived here, it is necessary to excavate the assumptions that underpinned the creation of representative institutions. The development of representative democracy was heavily influenced by two deep anxieties. On the one side there was the fear of a tyrant, but on the other side was the fear of the masses. The two functioned in tandem, since it was only with support of the masses that the demagogic tyrant could come to power. The solution was representative institutions, where elections tempered by a variety of checks and balances would ensure the best men would rule, whilst legitimating that rule through a semblance of popular control. This oligarchic-democratic compromise founded on the idea that the elected representatives would be the best among us, with superior abilities of ethical and practical reason, is the unspoken assumption behind why politicians are given the task of judging themselves.

Most of the disciplinary procedures for politicians in representative democracies are founded on the assumption that the politicians at the top of the hierarchy are guided by a formal or informal code of conduct, enforced through self-regulation upon any deviant colleagues. This idea was always somewhat naïve – politicians possess a complex mixture of private, public and vote-seeking motivations. Moreover, it failed to consider the extent to which political parties would become the dominant actors in representative democracy, constraining the extent to which individual representatives could exercise their own free judgment. The Impeachment Trial demonstrates what happens when this assumption meets a political system in which one of the major parties has radicalised.

It is not only in the US that this is a problem. Similar dynamics characterised the impeachment of Dilma Rousseff in Brazil. In comparative perspective the US has quite strong checks and balances upon a rogue President. In Westminster systems, like the UK, there are almost no powers to constrain a rogue Prime Minister (who maintains the support of their party). This has led to a situation in which government ministers can now break the ministerial code with impunity simply because the PM refuses to enforce it. Democratic institutions appear to have few guardrails against a major party when it radicalises in an authoritarian direction. Developing these guardrails is an urgent task. This would involve reconstituting procedures, like impeachment, intended to identify breaches of democratic norms to withstand bad faith or a hyper-partisanship at the very top.  

One way would be to address any misdeeds through the judicial system. However, liberal democracy already has a tendency to sublimate the political to the legal and economic, and it would be unwise to further exacerbate this tendency. Criminal acts by politicians should be prosecuted through the judicial system. Nevertheless, we may reasonably hold higher expectations of politicians’ behaviour than that they avoid criminality. Investigating whether a politician has behaved inappropriately in a manner that has breached public trust should not require the same conditions as a legal or civil trial. Specialised procedures are required for political misdeeds.

An alternative proposal is to involve citizens in deciding whether politicians have erred or not. A randomly-selected group of citizens could make this judgement after hearing the evidence, just like in a legal trial. There has been an explosion of democratic innovations  involving randomly-selected citizens in politics. These processes have shown over-and-over again that the public is very capable of assimilating complex information and making informed and considered judgements when given the opportunity and time to do so. Nevertheless, these democratic innovations have largely focused on two issues: improving the deliberative quality of opinion- and will-formation (through, for example, deliberative polling) or selecting officials by lot rather than election. There has been little exploration of how these same processes may be harnessed to involve citizens in parliamentary oversight and disciplinary procedures.

This is a little surprising because in Ancient Athenian democracy, which has been a touchstone for much of this democratic reinvention, citizens played an active role in judging cases of political controversy and maladministration through their participation in the Heliaea. Yet, as Pierre Rosanvallon has observed, in modern democracies such functions have been taken from the public and folded into parliaments or outsourced to the media, leaving elections as the only mechanism for citizens to discipline politics. I argued that, when public organisations lose their legitimacy to act as ‘neutral referee’, then it is appropriate to give randomly-selected citizens powers of arbitration. Other ‘counter-governance’ mechanisms can strengthen public powers of prevention and oversight. These ideas were developed in relation to public administration but might function even better for politics.

One argument for keeping the hoi polloi out of professional self-regulation is the epistemic advantage enjoyed by professionals. The public may not be as well-placed as medics to decide whether a doctor has engaged in medical malfeasance, for example. But this argument is less tenable for political issues, such as whether Donald Trump incited a riot or Priti Patel bullied her staff. It is hard to argue that the public is not well placed to decide whether something is a breach of public trust. Citizen participation is no panacea, but trying Donald Trump for impeachment in front of 100 citizens rather than 100 senators would have avoided some major issues that plagued this process. Citizens may be partisans but are not, on average, as partisan as politicians. It is less likely that lay citizens would have already made up their minds before hearing the evidence (as was obvious from the public statements of the senators), and replacing senators with a citizens’ jury would have obviated the concerns that impeachment was wasting valuable legislative time, which led to an artificially truncated process. Participatory reform of democratic oversight could play a key role in re-establishing control over our increasingly oligarchic political systems.