“I merely took the energy it takes to pout, and I wrote some blues.” -Duke Ellington
Everything is political. But not everything is political in the same way.
In liberal democracies the law is the outcome of contests of power and political negotiations that are uneven and yet constrained by constitutional procedures; it is executed by governments that cater to the constituencies that helped them to win and to hold office, and among these constituencies business has what Charles Lindblom long ago called a “privileged position”; and the distribution of its benefits is demonstrably shaped by the distribution of power in society. The situation is far from egalitarian.
At the same time, in liberal democracies the law is administered by competent civil service professionals working in bureaucratic agencies with specialized missions, and it is adjudicated by well-educated legal professionals working in judicial institutions that are insulated from partisan politics and that operate according to established legal norms and procedures irrespective of the particular persons whose cases they are called to adjudicate. Or, to put it more precisely, in liberal democracies this is the way things are supposed to work, according to legal norms that are themselves embodied in laws, rules, and long-standing practices.
Of course things never really work the way they are “supposed” to work. At the same time, there are situations where “normal” discrepancies between facts and norms become truly concerning, and sometimes even rise to the level of serious political crisis.
Romania is an interesting case.
Romania has long been plagued by bribery and corruption scandals in judicial, police, and civil service institutions related to zoning, building and utility payments, taxation, public procurement, and criminal investigation. The NGO Transparency International has consistently given Romania low ratings on its corruption index; in 2017, Romania ranked 59 out of 180 countries. In recent years public corruption, and especially corruption within the ruling Social Democratic Party (SPD), has become a major political issue, repeatedly bringing hundreds of thousands of citizens into the streets in protest.
Since 2002 the Romanian government has had a National Anticorruption Directorate (DNA), and since 2013 the chief prosecutor of the DNA has been a woman named Laura Codruța Kövesi. Kövesi has made a name for herself as a crusader against corruption. Her office has successfully prosecuted dozens of high-ranking public officials, including a former Prime Minister, and it currently has a case proceeding against Liviu Dragnea, the head of the SPD.
Dragnea holds no position in the government. But he is the power behind Prime Minister Viorica Dăncilă and her government. A few months ago, the SPD Justice Minister, Tudorel Toader, declared that Kövesi has exceeded her powers and called upon the independently-elected President Klaus Iohannis to fire her, a procedure reserved to the President according to the Romanian Constitution. Iohannis refused, regarding the move as an obvious obstruction of justice.
On May 30, Romania’s constitutional court ruled, in a 6-3 vote, that Iohannis is constitutionally obliged to follow the government’s instruction to fire Kövesi. The court issued the following statement: “The president has refused to issue the dismissal decree . . . which has blocked the justice minister from using his authority related to the prosecutors’ activities . . . The constitutional conduct that must be followed is for the president to issue the dismissal decree.”
Kövesi has become a lightning rod of controversy in Romania, and Eastern Europe more generally, as a symbol of the struggle to defend the rule of law at a time when is currently under siege. And the attacks on Kovesi have raised serious questions about the “illiberal” direction of Romanian politics. She reflected on these concerns in a November 2017 interview worth quoting at length (the interviewer’s questions are italicized):
MPs are debating a draft law that could see the government have more control over appointing prosecutors. Can I have your opinion on this?
Currently a draft law is [being] debated within the Romanian parliament regarding the status of magistrates. If voted, it will have a serious negative impact on the independence of justice and it will result in a political control over the prosecutors’ activity. Let’s think of an example: if the prosecutors were subordinated to the executive power, how could they ever open investigations against a member of the government, or against someone else who is a high official and also a member of [a] political party. Would there be any guarantees that there would be no repercussions against the magistrate who opened or finalized the investigation? In my view, the independence of justice is not a privilege for the magistrate, it is a fundamental principle in a democratic society. Only an independent justice as a system can ensure a fair trial. Only an independent justice can enforce the law equally for everybody.
How is your fight against corruption going? Is this government making your job harder?
You might know that once Romania joined the European Union, we as a state adopted a set of European values and principles. The investigations carried out by DNA have been received with a lot of hope and trust by our society. It is also true that they have mobilized an entire system formed of politicians and businessmen who feel threatened and who are interested in maintaining their control on the public resources. This is the reason why the entire justice system has faced unbelievable attacks from fake news, to hiring companies specialized in intimidation and harassment. There have been repeated attempts to limit the efficiency of our investigations, such as initiatives amending the legislation, reducing the tools used by the prosecutors, or denials of listing the immunity of the politicians charged with corruption offenses. I couldn’t say that currently all the politicians of the Romanian government or parliament are completely committed to the fight against corruption.
Do you feel personally in danger as a result of your job?
My entire activity as chief prosecutor of DNA has been governed by the law, and I have always been honest and fair. So this is why I’m not afraid of doing my job.
Do you think your job has become politicized?
Absolutely not. We are independent in our activity. According to our jurisdiction, we investigate high-level corruption crimes and as a result we sometimes investigate politicians. It must be said that we do not investigate them because they are politicians, but because they hold public positions. The fact that the courts have ruled final conviction decisions in our cases is proof that our investigations are conducted according to the law, and that they are based on solid evidence. I hope to be able to tell you in future that we are still independent, and I also hope for this draft law – which is an attempt to reduce the magistrates’ independence – to be rejected in the parliament.
If the Constitutional Court’s support for the government’s effort to fire her were not enough, last week Kövesi was brought up on disciplinary charges for professional misconduct, accused of “using a superior and aggressive tone for . . . prosecutors, inadmissible in relation to the minimal standards of ethics and deontology of a magistrate, capable of generating a sense of indignation among public opinion and a legitimate doubt about respect for the principles of the supremacy of the Constitution and the laws and the impartiality of prosecutors.”
Apparently Kövesi is insufficiently respectful of the powers that be.
Kövesi’s fate as Prosecutor is now uncertain, and with it the independence of the agency she heads.
In response, a group of 37 civil society groups concerned about the rule of law recently signed a letter to President Iohannis, calling on him to delay any action about Kovesi, and to hold talks with independent groups, legal professionals, and leaders of all political parties before taking any action. “These talks must also look at the future of the anti-corruption fight, the independence of the judiciary, respect for rule of law and the role of the constitutional court,” the signatories wrote. “We consider these consultations to be necessary because Romania has reached a critical moment in its history, when our place in the European Union, democracy and the rule of law are intentionally threatened by those who are elected or appointed to defend them.”
Iohannis has not (yet?) complied with the Court decision. If Iohannis fires Kövesi, then the SPD government can appoint a replacement without any Presidential check. Given the SPD’s consistent effort to block investigations and prosecutions of official corruption, such a replacement is likely to curtail the activities of the DNA. If Iohannis continues to refuse to fire her, it is likely that the SPD and its allies in the Parliament will impeach him. A constitutional crisis looms.
In the face of this looming crisis, on Saturday, June 9, the PSD organized a pro-government rally held at Cale Victoria in central Bucharest. Bogdan Neagu neatly sums up the event: “Romanian Absurd: A Ruling Party That Calls a Protest Rally.” As another commentator notes:
Romania’s government would like you to believe that hundreds of thousands of ordinary people took to the streets of the country’s capital Bucharest on the evening of June 9, demonstrating against alleged abuses being carried out by the judiciary and the secret services: what the government likes to call ‘the parallel state’. Indeed, according to television news channels loyal to the government, it was the biggest public demonstration the country had seen since 1989’s revolution.
The truth is rather different.
In fact, the ‘demonstration’ was a carefully stage-managed event which drew on the vast resources of both the country’s ruling political party, the Social Democrats (PSD), as well as those of the Romanian state itself.
Extra trains were laid on by CFR, Romanian railways, to ship thousands of obedient pensioners and civil servants into Bucharest, the Romanian capital. Coach and transport companies had their vehicles requisitioned by PSD-controlled local councils under threat of losing municipal contracts. Bucharest’s mayor, the spiky Gabriela Firea, welcomed the hordes. Roads in the north of the capital were closed, and the huge public square in front of the government building, Piata Victoriei, was off-limits to anyone but the PSD faithful. The government building itself was draped in an enormous Romanian flag. Parliament handed its vast car park, usually reserved only for dignitaries, over to the PSD for the day.
Not everyone present wanted to be there. On a portal specially created by a human rights NGO, hundreds of stories were published telling of people being forced to attend the demonstration else they lose their jobs, including teachers and medical staff. For many people in Romania’s small towns and villages – where mayors are all-powerful – the threats were real.
Indeed, for a demonstration which ostensibly set out to protest against alleged abuses being carried out by a rather vague, foreign-controlled ‘parallel state’, all the event managed to do was confirm the fact that it is the ruling party itself which has now captured almost the entire Romanian state. Reductio ad Ceausescum is all too easy on occasions such as this, but the comparisons are valid: there is now almost no separation between the ruling party and the Romanian state. It is no longer a government, it is a regime.
It does not (yet?) seem true that “there is almost no separation between the ruling party and the Romanian state.” But the line separating the two is increasingly blurred. It is obvious that the current ruling party is determined to use its power to limit the independence of investigative and judicial institutions, thereby insulating itself from both legal and political challenges. It is also obvious that it is happy to embrace the rhetoric of an angry populism, and to demonize its opponents, in order to mobilize political support.
I was in the Romanian city of Sibiu while the pro-government demonstration took place. I watched it on TV with my Romanian friends (and benefited from Adrian Miroiu’s patient explanations of the intricacies of the Romanian constitution).
Bucharest’s SPD Mayor Gabriela Firea opened the rally, declaring that the event was organized “to defend dignity and freedom” and asserting that “Victoriei Square belongs to all Romanians. It shouldn’t be confiscated by people paid by interests that are contrary to the interests of our country,” implying that anti-government protesters who regularly assemble there were in the pocket of “foreign interests” who are enemies of Romania (supporters of the government have frequently demonized George Soros). Senate President Calin Popescu Tariceanu, who will become interim President if Iohannis is impeached, likened the DNA to a “new Securitate.” And SPD leader Dragnea delivered a long-winded harangue against Kovesi, the DNA, and the President, declaring that Romania was being overtaken by a vengeful “shadow state,” “parallel state” or “deep state” that was determined to subvert the “will” of the Romanian people,” and explaining that the government supporters chose the color of white for the rally because “white symbolizes cleanliness and that’s what we are doing. We are cleaning the country of the filth these rats have been spreading.”
Attacks on the independent prosecutor. The extreme partisan politicization of the administrative of justice. The denunciation of independent public servants as members of a “deep state,” and the framing of investigations of official corruption, malfeasance, or obstruction of justice as efforts to “subvert the will of the people.” The declaration that manifest corruption is “purity,” that the manifestly corrupt seek to “drain the swamp” and “eliminate the rats” and that the critics of corruption who seek to defend constitutional democracy are corrupt enemies of democracy, indeed vermin, who themselves ought to be investigated, prosecuted, punished.
Does this sound familiar, fellow American readers?
Think about it.
I dedicate the music below to Dragnea and his friends and to his American counterpart, Donald Trump, and his friends and family, with special shout outs to Scott Pruitt, Betsey DeVoss, Jared and Ivanka, and of course Paul Manafort.
(Johnny Cash, Folsom Prison Blues)
(Keb Mo, Folsom Prison Blues)