Lawfare Kills Democracy in Romania – and Beyond

Stephan Marshall

”Constitutional courts provide the necessary means to outflank majorities and nullify their votes.”

— Robert Bork, Coerciving Virtue: The Worldwide Rule of Judges (AEI, 2003)

Romanian authorities seem determined to compound the attack on freedom and democracy they began by cancelling the presidential election in December, after an undesired candidate won the first round. The "detention” of frontrunner Calin Georgescu — along with raids on his supporters’ homes — is a thinly-disguised coup, an obvious lawfare operation designed to intimidate Georgescu and all Romanians and prevent them from electing him president.

The question now is, who exerted the pressure on Romanian authorities for this repression? Pressure to cancel the election came from the Biden Administration in the United States, where the State Department issued a thinly-veiled threat to Romania, instructing them that Georgescu is unacceptable as president of this key NATO member and situs of NATO’s largest military base, because of his desire to end the bloodbath in Ukraine.

But it seems unlikely that the Trump Administration was the instigator of this most recent action. Elon Musk quickly tweeted his indignation. Before that, Vice President J.D. Vance had just delivered a stinging rebuke to Europe’s petty tyrants for their contempt of the very "western values” that they claim so vocally to promote: little things like free speech and fair elections. Of all the outrages he cited, Romania’s canceled election has most shocked the world.

Most likely, the pressure this time came from the European Union, possibly seconded by Britain. Both are determined to continue the killing in Ukraine, even after the impending departure of the Americans. The EU has the financial leverage to force Romania to dance to its tune and multiple reasons to use it against Georgescu.

In this, the EU is simply tightening the same squeeze it has been using against its member states for years, albeit on less momentous matters than elections. When democratic electorates in Ireland or France refuse to ratify new EU treaties or "constitutions”, the EU simply repeats the referenda until the people vote as they are told. Financial leverage is used to punish Poland and Hungary when their democratically elected governments dissent from EU immigration policies (a matter on which the EU has no jurisdictional authority to be formulating policies in the first place).

Now Romanians (along with all Europeans) are likewise being told, even more directly, that they will vote for the right candidates or they will not vote at all.

A more direct and extreme assault on the very concepts of freedom and democracy than cancelling an election and arresting the winner is hardly imaginable. If the newly "acting presidents” Klaus Iohannis and now Ilie Bolojan had teamed up with the Constitutional Court and the army to seize control of the Parliament, jail its members, and declare themselves the ruling juntafor life, it could hardly have constituted a more flagrant coup d’etat. (And Iohannis’ belated resignation — months after his term expired and under threat of impeachment — does not change this.)

But for all his ambitions, Iohannis’ role in this was not driven by lust for power. The same cannot be said of the Constitutional Court — and now of the prosecutors who are harassing Georgescu.

Another source than the EU accounts equally for the coup d’etat, one that Washington has refrained from denouncing and that hardly figures on the radar screen of MAGA supporters or the MAGA media. Yet it is largely American in origins, and it may be even more insidious than the European Union: the Imperial Judiciary.

The epigraph quoted above from Judge Bork (like the title of his book, whence it comes) shows that the trend leading to this coupis not unique to Romania. In fact, it is the culmination of not so much Romanian politics as western ones generally. Perhaps above all — and it is understandable that Romanians may not realize this — it is largely a product of Anglophone and especially American politics: the ever-expanding, quasi-totalitarian rule of judges, lawyers, prosecutors, bar associations, and other legal operatives. For decades, the English-speaking countries and above all the United States have been exporting what the late Kenneth Minogue called "legal salvationism”. Yet even Americans are stymied to rein in judicial power. One can hardly expect the countries to whom it is exported — most of whom have little experience with judicial tyranny — to make sense of it.

One recurring modus operandi ran through the naked power grab that took place in the US during the last 5 years: judicial power. The "Deep State” may or may not be doing tangible harm to people, but the judiciary destroys lives daily and by the thousands. Americans are terrified of their courts, knowing that a summons to court — even an groundless one that results in no punishments or awards — means financial ruin. Innocence is no excuse, because a prosecution alone can destroy your life.

This transfer of power from sovereign people to judicial operatives may be the most dangerous trends in the western democracies. The judiciary, after all, is the branch of government whose job is punishing people with jail, prison, and whatever they come up with. They can do this criminally or "civilly”.

The EU itself has been gradually extinguishing democracy for years by touting "the rule of law”, which really means the rule of lawyers. And the logical progression from the rule of lawyers is, more specifically, the rule of prosecutors — functionaries who build careers by putting as many people as possible into prison. One is now prime minister of Britain, where he is censoring his people and diverting law enforcement away from violent crime and into prosecutiong ordinary Britons for infractions like "hate speech”. Another prosecutor recently won the Democratic Party’s nomination for president of the US. (Numerous other prosecutors occupy theUS Congress and American state governments.)

An oligarchy of prosecutors is far more deadly than any machinations by a bureaucratic "deep state”. And yet we hear nothing about it, even from MAGA Republicans. J.D. Vance judiciously neglected to mention routine violations of America’s own Constitution and Bill of Rights, perpetrated by the very institution that is supposed to be protecting them from violation by others: the judiciary. European leaders were too ignorant or too ashamed to retort with this obvious tu quoque.

Lawfare operations were a major weapon used to prevent Donald Trump from being elected US president. And it may have been under American pressure that similar lawfare is underway in France against figures like Marine Le Pen and a previous presidential candidate, Francois Fillon in 2017.

It is true that the American democracy has survived the lawfare onslaught against Trump and his allies, and Americans rejected the election of a prosecutor-president. But it is not clear that they realize the nature of the danger they avoided.

The Trump Administration now has many evildoers on the run, but as far as I can tell, the judiciary is not one of them. Trump and his housecleaners have said not a word about cleaning house at the almighty American judiciary. They have not said a word precisely because it is almighty.

Romanians need to clean house in theirs before it tightens its grip further on what is left of their fragile democracy. The Romanian state is already poisoned, perhaps irreparably, by this coup. Who can now believe that the Constitutional Court — whose job is to ensure the constitutional integrity of the rest of the state — retains any constitutional integrity itself or respect for constitutional government? It is likely that any president other than Georgescu will be deeply compromised and lack any legitimacy in the eyes of Romanians, and the same is true of any government or parliament that bacquiesces in, or even survives, this fiasco.

Stephan Marshall is the pen name of an American academic historian and political scientist

See also GHILOTINA DE LA WASHINGTON: Șefa celor 18 servicii de informații ale SUA a condamnat ANULAREA ALEGERILOR din ROMÂNIA. Unele națiuni europene ”nu sunt dedicate cauzei și valorilor libertății”, a spus Tulsi Gabbard la Fox News