[Prefatory Note: This is slightly modified text of an earlier post that seeks to takeaccount of responses from friends, and gave me the opportunity to express these somewhat contrarian views in a clearer way, as well as correct some mistakes. This version will also be published by Sharq Forum in Turkey.]
A Reflection on the June 24th Turkish Elections
In the days before the Turkish elections there were evident clashing fears and hopes mixed with predictions that mirrored these passions, and anticipated some kind of upset of the Erdoğan game plan for the future of the country. The long simmering intense hostility to Recep Tayyip Erdoğan seemed to have finally found its political voice in the person of a former high school physics teacher, Muharram Ince, the CHP candidate with his own gift of inspirational political oratory that created a feverish enthusiasm at his pre-election rallies, and there were reasons to believe and hope that Turskish citizenry was ready for a change after 16 years of AKP governance.
The Turkish economy was believed to be in terrible shape as signaled by the international fall of the lira, the pre-election spike in the cost of staple foods, high unemployment, and a dangerous shortfall in foreign capital needed to neutralize the effects of balance of payments deficits on high interest rates that make borrowing money very expensive. Beyond this there seemed to be present a prevalent a kind of political fatigue, a feeling even among former supporters that this controversial leader had held the reins of power far too long for the good of the country, that he badly damaged the international reputations of Turkey by over-reacting to the failed coup of 2016, that he was weakening the secular ethos of the Ataturk legacy while shifting power, influence, and wealth to emergent business elites spread around Anatolia and among the friends of the AKP, that he was inflicting an expensive gigantism on the country in the form of a presidential palace, world’s largest airport, proposed Istanbul Canal, giant mosques, a third bridge over the Bosporus, a generalized urban blight. Additionally, Turkey’s military campaigns in Syria and Iraq were responsible for a dangerous nationalist fervor as well as exhibiting hostility to legitimate Kurdish grievances and aspirations, as well as being a major cause of the massive refugee influx of recent years.
To evaluate this intensely negative portrayal of Turkey as it has played out in Europe and North America it is essential to take account of the concerted and powerful anti-Turkish international campaign that depicts Turkey as in the grip of evil political forces that made it the most illiberal of democracies led by a brutal and unscrupulous autocrat, making it a totally unsuitable and unreliable NATO ally that even dares to flaunt U.S. alliance leadership. This campaign, not ever acknowledged as such, brought together the Fetullah Gũlen network, anti-AKP think tank Kemalists spread around the West, secular leftists united with militant Kurdish activism, an Armenian movement seeking validation from the present Turkish government for its genocidal victimization of over a century ago, and influential Zionist elements disseminating to its influential supporters a steady stream of anti-Turkish propaganda as evident in the material on the websites of such well-funded U.S. NGOs as the Middle East Forum and Gatestone Institute, featuring such notorious personalities as Daniel Pipes and Alan Dershowitz.
This anti-Turkish campaign has been effective in (mis)shaping the outlook of international public opinion and of the liberal governments of the West. It expressed itself most dramatically, and for Turks unmistakenably, when adopting a wait and see approach to the failed coup in 2016, disclosing a thinly disguised wish in the West for regime change in Ankara that disturbed many knowledgeable people in Turkey, including many in the political opposition. It also continues to give the most negative interpretation to the Turkish response to this violent challenge, even ignoring the evidence by discounting the attribution of responsibility to the Fetullah Gũlen movement, by referring to its role as perpetrator only as ‘alleged.’ More seriously, while unreservedly condemning the post-coup roundup of Turks, including many journalists and academics, it never mentions the degree to which the Fetuallah Gũlen movement operates by stealth, and had for years deeply penetrated all public institutions of Turkish society with its devoted cultic followers, including the military, security, and intelligence sectors. These realities in Turkey are usually conceded by even the most ardent of Erdoğan’s domestic adversaries, but are never mentioned in the international discourse, even in such venerable organs of opinion in the West as the New York Times, The Economist, and BBC.
I share the critical view that the Turkish government used the pretext of security to go after a variety of enemies that had little or nothing to do with the coup attempt, but I also acknowledge that almost any government would respond strongly, and from its standpoint, rationally, if faced with a penetrating adversary that operates secretly and showed a willingness to stage a bloody coup to gain its ends of seizing power and taking over the Turkish state. I am old enough to remember the Cold War atmosphere in 1950s United States that obsessed about the alleged Communist tendency ‘to bore from within,’ leading to McCarthyism, a farreaching witch hunt that discredited and severely harmed many innocent and decent persons, weakening the morale and security of the country. I can only imagine the excessive kind of protective measures that the U.S. Government would have taken in that period if the Communist movement had actually tried to take over state power by recourse to a violent coup scenario, especially if perceived as working in tandem with the Soviet government. This refusal of international observers to contextualize the security challenges facing post-coup Turkey is an unmistakable display of an intense anti-Erdoğan bias that distorts perceptions and exaggerates criticisms.
It is in this highly charged atmosphere that the people I know best in Turkey by and large approached the recent elections. There was a mood among many secular opponents of Erdoğan that his game was about to come to a welcomed end, and this view included some highly regarded early high profile advisors and officials who had earlier worked on behalf of the AKP, and its charismatic leader. This mood translated into a consensus prediction that the alliance of parties would get enough votes to prevent Erdoğan from receiving the 50%+ votes he needed on June 24thto receive the mandate in the first round of voting to become the president charged with managing the constitutional shift from a parliamentary system to what Erdoğan himself was calling ‘an executive presidency.’ This rejection by more than half of Turkish voters would have meant a second round of voting between Erdoğan and whoever came in second, presumably Ince, to determine who would be the next president of Turkey. The expectation was that if Erdoğan didn’t win a majority in the first round, then he provided a fairly easy target in the runoff election as the opposition parties had agreed in advance to unite if such an eventuality came to pass. If this had happened, the parliamentary system would likely have been restored and retained, and the executive presidency would never become a reality.
The second fervent hope of the opposition was that the AKP would go down with their master, undoubtedly winning more seats than any other party, but still falling short of what would be needed to exercise majority control in the Turkish Parliament. It was anticipated that this outcome would be desirable even if Erdoğan were to be elected president as it would greatly diminish his ability to dictate legislative outcomes to Parliament. The more respected public opinion polls also gave credence to these expectations, although there was disagreement about whether Erdoğan might squeak by in the presidential vote either immediately or in the second round of voting, there was a fairly high level of agreement that the AKP, despite its alliance with the far-right MHP, would still not have a governing majority, and hence would be unable to get its way on key issues, including the constitutional revision.
The first question the morning after is what went wrong with these expectations. My initial attempt at an answer harkens back to my presence in Cairo shortly after the fall of Mubarak in early 2011. For various reasons I had wide contact with a range of influential persons in Cairo almost all of whom were affiliated with the secularized upper middle class. These folks, while offering a variety of analyses of the Egyptian political scene, shared a hope that in the post-Mubarak circumstance an inclusive democracy would become possible and desirable, and this was mainly understood to mean at the time a willingness to encourage the inclusion of the Muslim Brotherhood as a minority presence in the Egyptian Parliament. It was also coupled with the expectation of electing one of their own, Amr Moussa, former Foreign Minister and Secretary General of the Arab League, as the next president when elections were scheduled to occur in 2012. Egypt had a runoff arrangement similar to the one in Turkey, but Moussa never made it to the second round, having won only 12% of the vote, and the Muslim Brotherhood shocked the secular elites by achieving a political majority, initiating a sequence of events that pushed the country back to renewed secular authoritarianism in a harsher form than what was experienced for 30 years under Mubarak.
This underestimation of the grassroots strength of the MB illustrated for me the political myopia that often misleads modernized elites living in a dominant city in their country to believe that the future will unfold as they and their friends hope. I have dubbed this tendency ‘the Cairo Syndrome,’ and although less pronounced in these 2018 Turkish elections than it had been in Egypt, it certainly played its part in aligning advance expectations with wishes. In case my assessment is read as exhibiting Orientalist sympathies I can report the same phenomenon was operative in the U.S, just prior to the 2016 presidential elections when Trump’s victory shocked and brought intense grief to almost all the people in my social circle, as well as shame to the most sophisticated national pundits who earn their living by predicting political outcomes, often relying on abstruse algorithms to wow the public, and then shamelessly, without admitting their mistaken assessment, pronouncing after the fact why what happened was bound to happen.
The more illuminating concern is why with all that seemed to work against Erdoğan, he not only won but ran more than 12 percentage points ahead of the AKP, suggesting the persistence of his personal popularity as compared with the weakening of support for his political party. In fact, Erdoğan did not lose any individual support if this election is compared to the prior 12 elections where he had also always prevailed to varying degrees. Part of the explanation is the depth and passion of his base among the poor and pious, and those resident in the non-Kurdish parts of Eastern Turkey or in the interior of the country. The only places where Erdoğan and the AKP finished a distant second was along the Western coastal fringe of the country, including the lead city of Izmir. Despite the inspirational nationalism and modernizing agenda of Ataturk, and his still robust legacy (his picture is still by far the most imposing and common presence in offices, public buildings, and middle class homes), Turkey was and remains culturally very rooted in Islamic cultural and religious traditions in ways that give Erdoğan an authentic aura as the supreme representative of Turkishness that transcends the whys and wherefores of political debate.
And then there is the phenomenon of national pride, just as Erdoğan stood up so triumphantly against those who staged the coup, he has stood tall against the world, including the United States and Europe. He has brought much progress in the social and economic spheres to the poor and materially disadvantaged, and helped give Turkey a strong regional and global role that it had never achieved previously in the republican era when its leaders seemed content with their role as a passive junior partner of the West, and in recent decades of the NATO configuration. In a turbulent region and world, Turkey has made some substantial contributions to global public goods that are rarely mentioned: the civilianization of governance overcoming a deeply embedded military tutelage emanating from the Ataturk approach; an extraordinary refugee policy that has settled 4 million Syrians and Iraqis fleeing their countries (far more than all of Europe combined, which has regressively responded to its much smaller numbers by giving rise to a resurgence of the pre-fascist extreme right); humanitarian missions to Somalia, Rohingya, and elsewhere that have brought needed world attention to distressed and victimized people otherwise neglected; a high ranking among countries with respect to per capita expenditures for humanitarian assistance; a serious challenge to the geopolitical manipulation of the UN at the Security Council under the slogan ‘the world is greater than five’ frequently repeated by Erdoğan
On balance are the election results good for Turkey? It is not an easy question to answer, and a meaningful appraisal must await indications of how the newly constituted presidential system operates and whether the economic challenges can be effectively addressed. It is not encouraging that governing and legislating seem dependent on agreement with the MHP, an ultra-nationalist political formation, hostile to Kurdish aspirations, and militaristic. Also, Turkey faces an array of difficult internal and international problems, especially serious inflation and a weakened international currency, as well as a disturbing dependency on agricultural imports. These problems seem to have no short-term fix, and would likely magnify societal tensions if an IMF or EU type of austerity regime were to be instituted, or if ignored by a head-in-the-sand posture. Alternative electoral outcomes would also not have generated quick solutions, except that the well funded anti-Turkish international campaign might have celebrated and solidified results more to its liking by pouring capital into the country to meet the deficit, to build confidence in a new compliant political order, and to fight inflation and capital flight, and such steps would probably have quickly produced a stronger lira, at least temporarily.
What Turkey does have now, which it has failed to do during the prior AKP years is to develop a responsible opposition that puts forth alternative policy proposals. Muharram Ince, the forceful presidential candidate of the CHP opposition who by his showing in the election, running seven points ahead of his party, seems to have the leadership capacity and approach needed to create an atmosphere in Tuirkey that is more conducive to the sort of political debate and policy friction that makes constitutional democracy perform at its best. Ince, like Erdoğan, relies on populist and colorful rhetorical language that matches Erdoğan’s own crowd mobilizing style that may have the effect of creating more democratically oriented negotiations and collaborative solutions within government, especially with respect to the altered parliamentary role, in response to national policy challenges.
In this world of ‘elected dictators’ let us not demean the impressive democratic achievement of these Turkish elections that belie the irresponsible mutterings of those most disappointed who irresponsibly contend that the outcome was rigged. Surely, a political personality as accomplished as Erdoğan, if exercising the sort of dictatorial powers that his detractors claim, could have done a better job if these accusations were grounded in fact—rigged elections can be usually identified by huge margins of victory, by excluding unwanted parties from qualifying for participation, and by giving the anointed leader the kind of control in the legislative branch that would smooth the work of rulership. The Turkish elections delivered none of these results that are associated with dictatorial rule, voting proceeded without violence, and the polling places were internationally observed and without any notable irregularities reported—the margin of Erdoğan‘s victory was less than 3%, the Kurdish HDP received 11% of the vote allowing it to cross the 10% threshold that not only meant parliamentary participation but denied the AKP its much desired majority, and the AKP ran significantly behind Erdoğan suggesting a pattern of split voting and a lack of the sort of party discipline that is an unmistakable feature of a true autocracy. Closely contested elections of this sort only occur in societies where proceduraldemocracy associated with the primacy of elections is allowed to function even if flawed in various ways , often giving wealthy donors disproportionate and anti-democratic influence. Of course, Erdoğan had the benefits of long-term incumbency, as well as the fruits of his strenuous efforts to tame hostile media, and this unquestionably tilts the process to an uncertain degree, but is a general feature of party-driven politics in the contemporary world and is rarely allowed on its own to cast doubt on the legitimacy of electoral results.
Even if these flaws are corrected, or at least mitigated, procedural democracy is not enough, and one hopes that Erdoğan will use his newly acquired powers over judicial and other governmental appointments wisely. More deeply, we can hope that Erdoğan has learned from the Gezi Park experience of 2013 that a majoritarianapproach to governance breeds intense internal conflict and embittered forms of polarization that interfere with the pursuit of his signature goals of economic growth, enhanced regional and international stature, and the growing cultural appreciation of Muslim values and traditions.
At this moment, in the immediate afterglow of electoral victory, Erdoğan does seem to be adopting a more inclusive language, speaking of his commitment to the unity of the nation, a theme echoed in the gracious concession comments of Ince who unconditionally accepted the validity of the electoral results putting an end to anti- Erdoğan extremists irresponsibly ready to challenge the results, and pleaded only that the elected leadership now take account of the whole Turkish population of 80 million in the conduct of governance, and not only of those supporting the Erdoğan approach. If Erdoğan wants to start this new phase of Turkish constitutionalism on a positive note he could not do better than extending an olive branch to imprisoned academics, journalists, and human rights activists through the exercise of his power to pardon, especially as a welcome complement to the declaration that the state of emergency will not be further renewed, an encouraging move, especially as reported opposed by AKP’s alliance partner, the MHP. If the new system moves quickly and effectively to restore international and national confidence in the Turkish economy, prospects are good for political stability and a more robust democratic atmosphere in the country.
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Global Justice in the 21st Century 
How Might Robert Mueller Perform as Special Counsel on Trump Wrongdoing
22 Jul[Prefatory Note: The following article was published in The Nation online website, July 13, 2018. It seems relevant as one perspective on how Robert Mueller as Special Counsel might perform in carrying out this historic role of examining the wrongdoing of a sitting president. It is strange that this quiet undergraduate student of more than five decades ago should now have the destiny of the American republic in the palms of his hands.]
I Was Robert Mueller’s Undergraduate Thesis Adviser—and What Gives Some Hints About What He’ll Do as Special Counsel
Not long ago a journalist approached me out of the blue to do an interview about my impressions of Robert Mueller. At first the name didn’t ring a bell; it never crossed my mind that he might be referring to theRobert Mueller. You can imagine my surprise when this same journalist told me not only that he was referring to the special counsel appointed to investigate wrongdoing during the Trump presidential campaign but that Mueller had been my thesis advisee at Princeton 52 years ago.
The now-eminent Mueller had indeed been my advisee, normally a rather close and somewhat collaborative relationship. The senior thesis is usually the crowning experience for Princeton undergraduates majoring in the social sciences. To have zero recollections of the man was surprising, especially as the subject of his thesis coincided with my central interests at the time.
His essay addressed a seemingly technical issue: the authority of the World Court to decide a case involving the extension of South African apartheid to South West Africa (Namibia). Mueller’s thesis was an unusually perceptive analysis of a controversial judicial decision by the International Court of Justice (ICJ), commonly known as the World Court. Mueller approached the law and its political context in a sophisticated manner that would have been impressive if done by a law-school graduate, let alone a college student who, as far as I know, had not yet opened a law book.
His long analytical essay addressed a seemingly technical issue: the authority of the ICJ to decide a case involving the extension of South African apartheid to South West Africa, a territory then administered by Pretoria. Germany had conquered South West Africa in 1884 and imposed colonial rule over the sparsely populated territory until Germany lost its colonies after World War I. The Treaty of Versailles established the territory as a Mandate, to be administered on behalf of the League of Nations by South Africa. (That arrangement was terminated in 1966 by the United Nations General Assembly, which had inherited the League of Nations supervisory role after World War II, but South Africa retained control of the territory until it was granted independence in 1990 as the sovereign state of Namibia.)Until the 1966 World Court case, South West Africa was primarily known for the extreme nature of German colonial rule under the personal authority of a close relative of Hermann Göring, regarded as an ugly and prophetic prelude of the Nazi era.
On rereading Mueller’s thesis, I found the international-law issues he discusses of considerable interest even now, five decades later, but far more relevant for the broader public is what Mueller’s thesis tells us about his approach to the interplay of law, politics, and morality in the apartheid context, when he was a college student.
I would not attempt such an assessment if I did not think the thesis contains some hints about his decision-making process as special counsel. This seems of some value, given the gravity of the current situation and the overall contempt displayed by President Trump for constraints of any kind, including those of law. Before his appointment as special counsel, Mueller was generally regarded as an admired civil servant, having effectively directed the FBI for 12 years. He is commonly described as “a lifelong Republican,” though he has also enjoyed exceptionally strong bipartisan respect. Until Trump and such media poodles as Sean Hannity came along, it would have been unthinkable that someone with such an honorable and distinguished public image would find himself under attack as biased or as leading a witch hunt, but so it goes in these dark times.
It is helpful to know a bit about the 1966 World Court case to evaluate the approach taken by Mueller and how it might shed light on the likely performance of his present undertaking. The academic-sounding title of the thesis is “Acceptance of Jurisdiction in the South West Africa Cases—Its Effect on the Development of the International Court of Justice.” It might seem like the sort of dry inquiry that only a few legal specialists would care enough about to pore over the elaborate pleadings and lengthy judicial decisions. In this sense the title gives a false impression. Mueller’s inquiry is really about whether an international tribunal can make a useful decision bearing on the lawfulness of South African apartheid. The specific issue facing the ICJ was whether under a Mandate agreement, Ethiopia and Liberia, as members of the United Nations, could bring a dispute for adjudication as to whether the extension of the South African apartheid regime to South West Africa was a violation of South Africa’s obligations as the Mandatory power. Those obligations required Pretoria to administer South West Africa in ways that protected the well-being of all of its inhabitants. (In the spirit of disclosure, I should mention that I became a member of the legal team representing Ethiopia and Liberia the year before Mueller wrote his thesis.)
Often, as in this instance, a case before the ICJ is divided into two separate proceedings. First is the so-called jurisdictional phase, a lengthy inquiry into whether the court possesses the proper authority to adjudicate the legal dispute. This was the focus of Mueller’s thesis. After that comes the merits phase, which only occurs if the ICJ concludes that it has the authority to decide, and issues a decision to this effect.
There was a four-year gap between the two decisions, with the jurisdictional decision reached in 1962 and the substantive decision in 1966. When Mueller wrote his thesis, the second—and very controversial—decision of the ICJ had not yet been issued, and its surprise outcome narrowly in favor of South Africa would have been entirely unanticipated by Mueller. In view of his treatment of the issues, it would probably have disappointed him, although he would likely have respected the legal reasoning that led to the perverse result of validating apartheid.
The jurisdictional issue addressed by Mueller was trickier, and more intriguing than might appear at first glance, and it divided the 15 judges on the court. It was tricky for two reasons. First, it pitted the views of a sovereign state, South Africa, against those of a divided international community on the highly inflamed question of the compatibility of apartheid with international law. Second, it raised the question of whether a decision that would likely be rejected by South Africa could be rendered in a manner that would be effective. It should be understood that a repudiated decision by a court lacking enforcement powers would weaken both international law and the ICJ as an institution, and could make countries more hesitant to submit their disputes in the future. Yet the opposite case was also persuasive: A decision holding South Africa responsible for violating its legal duties as Mandatory on human-rights grounds would be widely appreciated as a contribution to the development of international law and consistent with the ethical expectations of public opinion, while a decision refusing to condemn apartheid would produce a cynical reaction.
What makes the Mueller approach in his thesis relevant for today is that the core of his inquiry is how a judge should interpret a legal document, which raises the jurisprudential question of whether law can be understood apart from its sociological context. This remains a subject of debate among international-law experts, with Europeans usually taking the view that law should be interpreted as autonomously as possible, by reference to the language in the text and without regard to political or moral considerations, and by refusing to heed the fact that societal values change over time in ways that might help guide an interpretation of the law.
The American view, with many variations, is that the context is always relevant, as language is inherently ambiguous and reflects values and interests, and since those values and interests evolve over time, they should influence the dynamics of judicial interpretation.
Mueller, while adopting a dispassionate tone, sides with the American approach in his thesis, emphasizing that the purpose of a judicial decision is to be effective with respect to the issues at stake as well as to respect the intentions of parties to the extent that these are made clear in the documents under review.
At the same time, Mueller recognizes that the ICJ is entrusted with a distinctive mission, and this in the end seems to shape his evaluation of whether the court handled the case appropriately. Mueller describes his undertaking in the thesis as follows: “to show that, though the Court accepted jurisdiction in the face of many persuasive legal arguments backing the view that the case was outside the jurisdiction of the Court, nevertheless the decision was sound in regard to the role of the Court in the maintenance of international peace.” This phrasing is more awkward and convoluted than the careful reasoning and conceptual clarity of the thesis as a whole (for non-lawyers, it is important to appreciate that the term “jurisdiction” means “authority to decide”).
Mueller condemned the South African administration for having set aside “the [least] arable, the most desolate, and the most unproductive” land for “Natives and Coloreds.”
The jurisdictional issues are crucial in a case like this: Given the weight of international opinion against the practice of apartheid, it would appear that once the authority to decide is established, the outcome on the merits would follow as night follows day. In fact, in the most unpredictable development in the entire history of the ICJ, a deeply divided court ended up deciding in favor of South Africa. This decision on substance was so shocking to the international community that it generated a backlash at the UN that, ironically, turned out to be worse for South Africa than a defeat at the ICJ would have been. The UN General Assembly responded to the ICJ’s decision by voting overwhelmingly to terminate the Mandate, proposing political independence for South West Africa, leading eventually to the birth of the newly independent state of Namibia in 1990. (Mueller could not have been influenced by any of this, as it took place after the completion of his thesis.)
It is of particular relevance that the division in the court, in the jurisdictional phase, between those judges who wanted to accept the case and those who did not was elaborately argued in several learned opinions. Despite his antipathy to apartheid, Mueller clearly believed that the rejectionists had the better of the narrow legal arguments. Yet, as suggested, this did not resolve the issue for Mueller. He set forth an argument showing that South Africa had pursued an oppressive set of policies and practices that were imposed on the native population in draconian fashion. Pretoria had established a racial divide that created a color line “no less severe than the Iron Curtain.” Mueller condemned the South African administration for having set aside “the [least] arable, the most desolate, and the most unproductive” land for “Natives and Coloreds—45 years after the territory became ‘a sacred trust of civilization’” (the latter phrase is language in the agreement establishing the Mandate).
In this regard, South Africa acted unacceptably with respect to its duties as Mandatory, failing to report properly to the international community, as required, and adopting what Mueller calls “procrastination and delaying tactics” over a period of more than four decades. In contrast, Mueller notes, the League of Nations (and, after World War II, the UN) engaged in “patient waiting” for cooperation in fulfilling the purposes of the Mandate. As Mueller writes, “How long can she [South Africa] rely on her sovereignty as a sanctuary, within which she can negate the progress made in the rest of the world in ensuring the human rights of all peoples?” One factor that makes an examination of Mueller’s thesis of interest is that there is a certain institutional similarity between the ICJ case and his task as special counsel.
After a careful and intellectually sympathetic presentation of the conservative arguments against jurisdiction articulated in a dissenting opinion by two celebrated jurists, Mueller concludes that “the arguments against the acceptance of jurisdiction are more forceful in presentation than the arguments for acceptance of jurisdiction.” He goes on to say, “However, this does not mean that the arguments of the Court are unfounded on legal grounds.”
It is here that Mueller makes the rather subtle move of giving priority to the institutional mission of the ICJ to develop international law and contribute to world peace. In other words, Mueller considers the larger purposes of the law in this context to be the promotion of justice, respect for international law and human rights, and even the maintenance of peace.
Mueller proceeds thoughtfully to develop this rather nuanced view of the role of the ICJ. He is sensitive to the court’s need to manifest respect for the sovereign rights of states even as it serves these larger goals of peace and justice. He perceives this sort of jurisdictional decision as one way to balance sovereignty against upholding the interests of world order.
In the end, Mueller says that either way of deciding this jurisdictional question would be in accord with “acknowledged principles of international law.” He makes clear that the ICJ setting makes it inevitable that judges exercise greater discretion than in domestic law contexts.
There are fewer precedents to guide interpretation, and no international legislature exists, giving the ICJ the task of promoting the development of international law. After exploring the wider issues raised, Mueller reaches his conclusion: “In sum, on the basis of what is known of the case at the present moment, the decision [to accept jurisdiction] was a positive contribution…to the ultimate goal of a world peace founded upon a rule of law.”
Against this background, what can we say about Mueller’s approach to the controversial interface of law and policy in the context of his role as special counsel? One factor that makes an examination of Mueller’s thesis of interest is that there is a certain institutional similarity between the ICJ case and his task as special counsel. Both institutional procedures are rather obscure to the public, including the media, and can be seen as operating free from any overriding set of traditions and precedents. In both cases, there are no clear boundaries specifying proper action in situations that have a high political profile. As with the ICJ, the special counsel enjoys a rather wide orbit of discretion, which of course is part of what worries the White House and invites controversy. We only have to recall how a recent special counsel, Kenneth Starr, pilloried President Bill Clinton to realize how treacherous this terrain can be.
The most striking feature of Mueller’s thesis, aside from his impressive treatment of technical legal issues, is his determined effort to explain in a fair-minded manner reasonable differences of legal opinion. What is most significant is his accompanying view that there may be instances, such as in the ICJ case, where opposing views are both based on sound legal reasoning, producing a situation in which there is no way to distinguish legal right and wrong on the merits, thus making non-legal factors such as human rights, peace, and justice potentially decisive.
Yet that wider context is also one of conflicting concerns, since the court must show proper respect for sovereign rights, avoid the issuance of ineffective decisions, and not be seen as engaging in judicial legislation. Mueller impressively depicts this delicate balance.
It seems responsible to generalize from this understanding that Mueller will make an exhaustive effort as special counsel to gather the evidence and consider the best arguments on all sides of the issues under investigation as impartially as humanly possible. If the facts and law in the Trump inquiry lead to the sort of legal ambiguity that confronted the ICJ, then Mueller would likely feel obliged to consider the effects of any action on the legitimacy of constitutional democracy, including how it affects the confidence of the citizenry in the integrity of the rule of law.
In a sense, those who fear the damage done by Trump’s presidency to American institutions can only hope that Mueller as special counsel will exhibit the same kind of priorities as Mueller did when he was a Princeton senior. The early Mueller sided with the ICJ majority in its view that the human rights at stake were more important than deference to the technical virtuosity of the judges who favored turning their back on the victims of South African apartheid.
We do not know at this point where the evidence leads with respect to the extensive investigations of the special counsel, but if it gives responsible grounds for initiatives strengthening American political democracy at this critical time, one can only hope that Mueller will seize the occasion. One thing is almost certain to be present if he does proceed in this more activist manner: The case will be put forward dispassionately, but with due respect for the evidence and for the sanctity of constitutional rights and procedures, including deep respect for the office of the presidency.
Tags: Approach to Interpretation, Legal Analysis, Princeton Thesis, Robert Mueller, Special Counsel