Only an independent judiciary and free press are preventing the USA going down the path of dictatorship

The only two bodies that are helping to preserve the USA from becoming a Russia or a China under President Donald Trump is firstly its independent judiciary and secondly the freedom of the media.

The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Balances. Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3.

Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch. For example, the President appoints judges and departmental secretaries. But these appointments must be approved by the Senate. The Congress can pass a law, but the President can veto it. The Supreme Court can rule a law to be unconstitutional, but the Congress, with the States, can amend the Constitution. All of these checks and balances, however, are inefficient, but that is by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant. [1]

Now, under President Trump it is this very system that is preventing him as leader of the Executive branch of government from having carte blanch to rule America as he would like to. Whereas in countries like China and Russia, the judiciary is beholden to the executive powers that govern the country – in this case President Xi Jinping and President Vladimir Putin – fortunately in America the judiciary is retaining its independence.

The single most important event to date during the Trump administration was the appointment of Robert S. Mueller III as special counsel on Wednesday, 17 May 2017 by the Justice Department to oversee the investigation into any potential ties and collusion between President Trump’s campaign and Russian officials. As stated in an article in The New York Times (May 17, 2017):

The decision by the deputy attorney general, Rod J. Rosenstein, came after a cascade of damaging developments for Mr. Trump in recent days, including his abrupt dismissal of the F.B.I. director, James B. Comey, and the subsequent disclosure that Mr. Trump asked Mr. Comey to drop the investigation of his former national security adviser, Michael T. Flynn.

Mr. Rosenstein had been under escalating pressure from Democrats, and even some Republicans, to appoint a special counsel after he wrote a memo that the White House initially cited as the rationale for Mr. Comey’s dismissal.

By appointing Mr. Mueller, a former federal prosecutor with an unblemished reputation, Mr. Rosenstein could alleviate uncertainty about the government’s ability to investigate the questions surrounding the Trump campaign and the Russians.

Mr. Rosenstein said in a statement that he concluded that “it is in the public interest for me to exercise my authorities and appoint a special counsel to assume responsibility for this matter.”

While Mr. Mueller remains answerable to Mr. Rosenstein — and by extension, the president — he will have greater autonomy to run an investigation than other federal prosecutors.

As a special counsel, Mr. Mueller can choose whether to consult with or inform the Justice Department about his investigation. He is authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” according to Mr. Rosenstein’s order naming him to the post, as well as other matters that “may arise directly from the investigation.” He is empowered to press criminal charges, and he can request additional resources subject to the review of an assistant attorney general.

Mr. Trump was notified only after Mr. Rosenstein signed the order, when the White House counsel, Donald F. McGahn II, walked into the Oval Office around 5:35 p.m. to tell him. [2]

It seems that President Trump reacted badly to this and it is interesting to read the description in the same New York Times article:

He quickly summoned his top advisers, most of whom recommended that he adopt a conciliatory stance. But his son-in-law, Jared Kushner, who had pushed Mr. Trump to fire Mr. Comey, urged the president to counterattack, according to two senior administration officials.

After a brief discussion, however, the majority prevailed. Aides huddled over a computer just outside the Oval Office to draft the statement accepting Mr. Rosenstein’s decision and asserting the president’s innocence.

By the end, Mr. Trump was uncharacteristically non-combative, according to people close to him.

Mr. Rosenstein, who until recently was United States attorney in Maryland, took control of the investigation because Attorney General Jeff Sessions recused himself after acknowledging he had failed to disclose meetings he had with the Russian ambassador to Washington, Sergey I. Kislyak, when Mr. Sessions was an adviser to the Trump campaign.

The second obstacle blocking President Trump is the freedom of the press (the term “the press” refers to any news operation in any media, not just print.

In the United States freedom of the press is protected by the First Amendment to the United States Constitution. This amendment is generally understood to prevent the government from interfering with the distribution of information and opinions (although this freedom remains subject to certain restrictions, such as defamation law). The first 10 Amendments to the Constitution of the United States became law in 1791, and the First Amendment says, in part, that “Congress shall make no law … abridging the freedom of speech, or of the press…”. That protection from control by the federal government meant that anyone – rich or poor, and regardless of political or religious beliefs – could generally publish whatever he or she wished.

The scope of U.S. press freedom has been determined principally by court decisions interpreting the nuances of the First Amendment. In general, the U.S. courts have held that the press has a “watchdog” role over government and is not subject to prior restraint or registration. On the other hand, defamation, obscenity and publication of national-security secrets have been generally determined not eligible for protection under the First Amendment.

In 1934, Congress set up the current oversight agency of the broadcasting industry, the Federal Communications Commission (FCC). The law vested in the FCC not only “watchdog” functions, but licencing and rulemaking powers, subject to “public interest, convenience, and necessity.” Acting on this mandate, the FCC has sought to promote diversity in content and ownership in the broadcasting industry. [3]

Despite this, the press has come under repeated assault by President Trump. According to another New York Times article (October 12, 2017):

President Trump usually ignores the criticism that comes his way from MSNBC, the reliably liberal cable channel that, his advisers argue, will attack his administration no matter what.

But two reports by the channel’s parent network, NBC News — including a scoop that the president sought to expand the nation’s nuclear arsenal — set off some of Mr. Trump’s most hostile rhetoric yet about the freedom of the press.

[Tweet] “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked,” he wrote on Twitter. “Not fair to public!”

… And Mr. Trump’s notion of suspending licenses — along with his proposal, tweeted last week, that late-night comedians be subject to the “equal time” rule — is essentially unworkable, given how government regulation of the airwaves actually works …The president has already called the news media “the enemy of the American people,” and his tweets about “fake news,” once a reliable prompter of fury, increasingly feel like a part of Washington’s white noise.

Seen-it-all veterans may take Mr. Trump’s recent statements with a few grains of salt. But two former White House officials turned pundits, David Axelrod and Robert Reich, warned of creeping autocracy. And advocacy groups like the Committee to Protect Journalists were moved to point out that such words, issued from the presidential pulpit, can embolden dictators who are more empowered than Mr. Trump to shape or censor coverage.

and the article concludes with the chilling words:

The president often uses shocking statements to steer the focus of coverage. On Wednesday, amid a stalled legislative agenda and reports of West Wing turmoil, he told reporters in the Oval Office: “It’s frankly disgusting the way the press is able to write whatever they want to write, and people should look into it.” [4]

Could the USA become like Russia or China?

Bearing in mind Trump’s comments, it is important to see what the situation is with the press in countries like China and Russia where autocrats have complete political control over the populace. A like-by-like comparison reveals what the US and other democracies could become if the press is controlled by the state.

According to a BBC profile of the Russian media industry:

Television is the main news source for most Russians and is the most powerful sector of the Russian media industry. The main national networks are either run directly by the state or owned by companies with close links to the Kremlin. Most Russians get their news from state-owned TV.

The government controls Channel One and Russia One – two of the three main federal channels – while state-controlled energy giant Gazprom owns NTV. An international English-language satellite news TV, RT, is state-funded and aims to present “global news from a Russian perspective”.

Since the Ukraine crisis, Russian state media have intensified the pro-Kremlin and nationalistic tone of their broadcasts, pumping out a regular diet of adulation for Mr Putin, nationalistic pathos, fierce rejection of Western influence and attacks on the Kremlin’s enemies. Some observers have accused pro-Kremlin TV of spreading disinformation and conducting an information war both at home and abroad.

The article also describes the state of the Russian newspaper industry that is equally dominated by the Kremlin administration:

There are more than 400 daily newspapers, catering for most tastes. The most popular titles support Kremlin policy, and several influential dailies have been bought by companies with close links to the Kremlin.

Russian journalists run the risk of attack and even murder if they delve too deeply into sensitive subjects such as corruption, organised crime or rights abuses. Russia is a regular target for criticism and condemnation from media freedom watchdogs.

A law which came into force in 2016 caps foreign ownership of media outlets at 20 per cent. Since then, foreign companies have either quit the market or else ceded majority control of their Russian operations to local partners. [5]

There is still a degree of freedom of the Internet but this seems to be diminishing. A recent BBC Trending report (November 19, 2017) ‘Can this green blogger become Russia’s president?’ on Alexei Navalny looks at the younger more internet-savvy Russians battling online for Russia’s future and the challenges facing them. For example, there a pro-Kremlin coordinated bot attacks against their Youtube videos. However, social media is managing to have a profound effect in Russian politics.

In China, the situation is almost identical to that of Russia. According to a Freedom House report entitled ‘China – Freedom of the Press 2016’:

China is home to one of the world’s most restrictive media environments. The already limited space for investigative journalism and online commentary shrank during 2015, continuing a trend of ideological tightening since Xi Jinping assumed the leadership of Chinese Communist Party (CCP) in 2012. Censorship of news and internet content related to the financial system and environmental pollution increased as the economy slowed and smog intensified, adding to the topics’ political sensitivity. State-run CCTV remains the only licensed national television broadcaster, and all provincial and local stations are required to air its evening news programs.

Reviewing key developments in the media in 2016, it states:

  • Professional journalists from established news outlets were detained, imprisoned, and forced to air televised confessions. After a number of new arrests during the year, there were 49 journalists and online writers behind bars in China as of December.
  • Liberal, commercialized news publications encountered growing financial and political pressures, while the influence of party mouthpieces and state-subsidized outlets grew. Authorities imposed restrictions on two well-known finance publications that had also reported on corruption.
  • Dedicated internet users continued to employ circumvention technology and other creative tactics to defy and bypass restrictions on free expression. The government responded by increasing efforts to block circumvention tools, including through innovative cyberattacks and intimidation of software developers.

Under President Xi, the Communist Party has tigthened its grip over the state media despite Article 35 of the constitution:

Article 35 of the constitution guarantees freedoms of speech, assembly, association, and publication, but such rights are subordinated to the discretion of the CCP and its status as the ruling power. Moreover, the constitution cannot, in most cases, be invoked in court as a legal basis for asserting individual rights. Judges are appointed by the CCP and generally follow its directives, particularly in politically sensitive cases. There is no press law that governs the protection of journalists or the punishment of their attackers. Instead, vaguely worded provisions in the penal code and state secrets legislation are routinely used to imprison Chinese citizens for the peaceful expression of views that the CCP considers objectionable. Criminal defamation provisions and more informal judicial interpretations—including 2013 guidelines related to “online rumors”—are occasionally used to similar effect. During 2015, the National People’s Congress adopted several laws or amendments that codified existing media controls, increased penalties for political or religious expression, and required technology firms to assist security agencies with investigations: A National Security Law was adopted in July, amendments to the Criminal Law took effect in November, and an Antiterrorism Law was passed in December.

And when it comes to the Internet, state control is just as pervasive:

In addition to blocking individual sites and deleting content, the authorities are capable of imposing localised internet blackouts during periods of unrest. For example, local authorities completely shut down the internet in Aba County, Sichuan Province, for several months in 2015 after Tibetan monks protested against CCP rule.

and the Freedom House report goes on to state there are widespread arrests in the country of journalists and members of religious and ethnic minorities who try to publish information either critical of the CCP or in contravention of the party’s line:

Freelance journalists, writers, online activists, and a range of other Chinese citizens continued to be sentenced to prison or administrative detention, particularly for disseminating information online or sending it to contacts outside China. […]Members of religious and ethnic minorities are subject to particularly harsh treatment for their online activities, writings, or efforts to disseminate information that departs from the CCP line. Several of the journalists serving the longest prison terms in China are Uighurs and Tibetans. In addition to journalists, ordinary Tibetans, Uighurs, and Falun Gong practitioners have been imprisoned for accessing, possessing, or transmitting banned information, or for being related to journalists living in exile. [6]

This article by a Canadian citizen and a Yale graduate, Jiang Xueqin, who is a China-based educator and writer gives a good overview of how the Chinese media enables tyranny and corruption

© Ivan Kinsman

Sources:

1. Constitutional Topic: Separation of Powers, https://www.usconstitution.net/consttop_sepp.html#america

2. The New York Times, Robert Mueller, Former F.B.I. Director, Is Named Special Counsel for Russia Investigation, https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html

3. The Media in the United States > Freedom of the Press, https://usa.usembassy.de/media-freedom.htm

4. The New York Times, Trump’s Attacks on the Press: Telling Escalation From Empty Threats, https://www.nytimes.com/2017/10/12/business/media/trump-news-media-attacks.html

5. BBC, Russia profile – Media, http://www.bbc.com/news/world-europe-17840134

6. Freedom House, https://freedomhouse.org/report/freedom-press/2016/china

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