[lg policy] Sujit Choudhry from the Center for Constitutional Transitions on Eric Holder’s Tweet in the Contexts of a Disintegrating Democracy

Fri Mar 9 15:54:31 UTC 2018

 Sujit Choudhry from the Center for Constitutional Transitions on Eric
Holder’s Tweet in the Contexts of a Disintegrating Democracy
By
Brian Harris <http://releasefact.com/author/releasefact/>
-
March 8, 2018
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Professor Sujit Choudhry is an internationally renowned scholar whose
research addresses a wide spectrum of issues in comparative constitutional
law
<https://ceocfointerviews.com/interviews/CenterforConstitutionalTransitions17.htm>
and politics. This includes constitutional design as a tool to manage the
transition from violent conflict to peaceful democratic politics,
constitutional design in ethnically divided societies, federalism,
decentralization and secession, semi-presidentialism, constitutional courts
and transitional justice, official language policy, minority and group
rights, bills of rights, constitutional design in the context of
transitions from authoritarian to democratic rule; constitution building
processes, security sector oversight and basic methodological questions in
the study of comparative constitutional law. He has also written
extensively on Canadian constitutional law.

His most recent publication <https://works.bepress.com/sujit_choudhry/> is
a book chapter that is planned for release in *Constitutional Democracies
in Crisis*? In particular, Choudhry focuses on a tweet by Eric Holder, the
former Attorney General under President Obama, that was published to his
followers in December of 2017. In it, Holder called any potential
termination of White House Special Counsel Robert Mueller an “absolute red
line.” He also suggested that, should anything happen, peaceful
demonstrations should ensue. “If removed or meaningfully tampered with,
there must be mass, popular, peaceful support of both. The American people
must be seen and heard – they will ultimately be determinative,” Holder
wrote in his tweet.

According to Choudhry’s dissection of Holder’s tweet, the Attorney
General’s call to action is based upon two concepts – one being the
symbolic “red line,” or an uncontroversial constitutional boundary in
American democracy, and the other concept being that Holder leaves it up to
the American people to determine whether officials have indeed abused their
authority and transgressed said boundary. What is more, Choudhry underlines
that Holder insinuates that the reaction of the American people will
determine how the issue is resolved – that is, whether the crossing of the
red line will be upheld or reversed.

Choudhry points out that Holder’s tweet is built on the idea of
“constitutional self-enforcement, built around the concept of a focal
point.” And as constitutions are governing expectations of officials and
citizens that revolve around the appropriateness of the behavior of public
authority by focusing on focal points, or constitutional rules.
Furthermore, violations of these constitutional rules does not warrant a
court to label them as such, and Choudhry expresses a sense of surprise in
Holder’s tweet. He writes, “Indeed, it is striking that Holder, once the
nation’s chief law enforcement official, does not even mention a legal
challenge to attempts to obliterate Mueller’s authority, even in a
supporting role.”

According to Professor Choudhry, another example of a focal point is a
presidential term limit that, in the United States and across the world,
limits an individual to a total of two terms as president. He goes on to
write that an autocrat would want to break that focal point – or
constitutional rule – by attempting to stay in office for longer “declaring
a state of emergency, dissolving the legislature, and/or suspending
elections.  It is clear when this is happening, and more often than not,
attempts to do will lead political opponents to mobilize against such
attempts, and bring citizens into the streets.”

Choudhry writes that when taken within a specific context, Holder’s ‘red
lines’ can be considered an example of a democratic failure. He further
writes, “Disregarding term limits are one example of a more general
category termed the self-coup or *autogolpe*, which is an attempt by
directly elected executives to extend their power once elected, invoking a
democratic mandate from the people.  Another is the outright
unconstitutional seizure of power without any electoral legitimacy, in a *coup
d’état* (for example, by the military).  A third is blatant electoral fraud
by incumbents to maintain the façade of democratic legitimacy.”

Sujit Choudhry is an internationally recognized authority
<http://www.indiawest.com/news/global_indian/u-c-berkeley-law-professor-sujit-choudhry-co-edits-new/article_163b28d6-e9a6-11e6-a1f5-f7dfdfa8c09d.html>
on comparative constitutional law and politics whose research focus spans
across a wide variety of comparative constitutional law and politics
issues. He combines a wide-ranging research agenda with in-depth field
experience as an advisor to constitution building processes, including in
Egypt, Jordan, Libya, Nepal, South Africa, Sri Lanka, Tunisia, Ukraine and
Yemen. He has lectured or spoken in over two dozen countries.

Choudhry’s other involvements include an I. Michael Heyman Professorship of
Law at the University of California, Berkeley. His prior engagements
include working as constitutional advisor to emerging democracies across
the world, during which he amended existing constitutions and drafted new
ones. He is currently also a member of the United Nations Mediation Roster
and consultant to the World Bank Institute at the World Bank and the United
Nations Development Program.

Choudhry has also been a constitutional advisor for over two decades. He is
expert in facilitating public dialogue sessions with civil society groups
and other stakeholders, leading stakeholder consultations, performing
detailed advisory work with technical experts, training civil servants and
bureaucrats, engaging party leaders and parliamentarians, and drafting
technical reports and memoranda in the field.

Choudhry is the founding director of the Center for Constitutional
Transitions <http://www.constitutionaltransitions.org/> that to date has
collaborated with over 50 experts from more than 25 countries. It partners
with a global network of multilateral organizations, think tanks, and NGOs.
He is currently also a member of the United Nations Mediation Roster and
consultant to the World Bank Institute at the World Bank and the United
Nations Development Program <https://www.wzb.eu/en/personen/sujit-choudhry>.

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 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com
http://ccat.sas.upenn.edu/~haroldfs/

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