We have now reached a code red moment in American democracy

We have now reached a code red moment in American democracy
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Unfortunately, the House Judiciary Committee hearing on impeachment this week has been perceived by many as a showdown between partisan law professors rather than an objective analysis. On the “Democratic side” were Noah Feldman of Harvard, Pamela Karlan of Stanford, and Michael Gerhardt of the University of North Carolina. On the “Republican side” was Jonathan Turley of George Washington University, who is a legal analyst with me at CBS News. Feldman, Karlan, and Gerhardt argued that the conduct of President TrumpDonald John TrumpNew Biden campaign ad jabs at Trump's reported 0 income tax payments Ocasio-Cortez: Trump contributed less in taxes 'than waitresses and undocumented immigrants' Third judge orders Postal Service to halt delivery cuts MORE is unequivocally impeachable, while Turley urged caution and a fuller factual record to avoid a rush to judgment.

This is the wrong way to frame the hearing. The Constitution is not a partisan document. It does not even mention political parties, let alone endorse them. Every member of Congress, as well as the president, the federal judiciary, and numerous officials and civil servants in the executive branch, take an oath to uphold and defend the Constitution. That oath is not a pledge of fidelity to the incumbent president. It instead promises fidelity to the founding document designed to protect regular people against a bullying and overly powerful government comprised of officials who only care about shoring up their own power. This basic foundational concept goes back to the Code of Hammurabi, which declared that the “first duty of government is to protect the powerless from the powerful.”

If the office of the president of the United States rises above the law, with no more accountability to Congress or to the courts, then regular people will lose their individual rights and liberties. This was the message of the constitutional scholars who testified that the behavior of Trump cannot go unchecked. Just imagine a American president with unlimited power to punish political rivals and employ the massive might of the military and the criminal justice system to secure incumbent power. Over the past couple of weeks, protests in Iran over high gasoline prices prompted that totalitarian government to shut down the internet, leaving 80 million people untethered to the rest of the world. Online videos show security forces subsequently opening machine gunfire on crowds, reportedly killing at least 200 people, including peaceful protesters and civilians.


But this could never happen in America. Right? We cannot be so sanguine. In their sobering book, “How Democracies Die,” political scientists Steven Levitsky and Daniel Ziblatt put together a compelling historical narrative of how numerous functioning democracies around the world have since morphed into authoritarian regimes, not by violent coups but by “elected governments” themselves. Several countries such as Venezuela, Georgia, Hungary, and Turkey witnessed their democratic institutions backslide at the ballot box while maintaining the “veneer of democracy.” The authors identify four patterns. An elected demagogue packs the courts and exerts stringent control over the legislature and the administrative bureaucracy, attacks his opponents, ignores or destroys rules and norms governing his conduct in office, and encourages violence from his devout loyalists.

When it comes to President Trump, it is not hard to do the math. Check, check, check, and check for each of these patterns. The founders of our government vehemently rejected a monarchy, whereby the king could do no wrong and could not be impeached or removed from his throne by the will of the people. In America, the people are the kings. In a government by “we the people,” the president works for us. But what if he uses that power to manipulate the electoral process so that he can stay in power? The founders recognized that this was a problem. It is why they included impeachment in the Constitution. If another election were the only way to hold a president accountable for distorting an election to gain and retain power, then there is no way to ensure a true government by the people.

Here are the facts today. The July call memorandum shows that Trump had a phone conversation with Ukrainian President Voldymyr Zelensky in which he asked for the “favor” of initiating investigations of the Bidens and the unsubstantiated theory that Ukraine, not Russia, interfered in the 2016 American election. We know that he withheld nearly $400 million in aid approved by the Senate and a White House meeting at the same time, all while Zelensky was trying to establish legitimacy as the new Ukrainian leader in the midst of a difficult war with Russian President Vladimir PutinVladimir Vladimirovich PutinFormer GOP lawmakers on endorsing Biden: Trump is no Republican, 'lacks basic self-control' Watchdog confirms State Dept. canceled award for journalist who criticized Trump Former intelligence agency director Robert Cardillo speaks out against 'erratic' Trump MORE.

We know that the withholding of aid was viewed as a threat to national security within the administration, and there is still no clear explanation offered by Trump for that decision, which he does not deny. We also know that he was interested in the announcement of the investigation, but not necessarily its completion or results, which suggests that it was about damaging his political rival, rather than actually uncovering government corruption in Ukraine. There is also no explanation for why Trump asked Ukraine to perform a function that our superior American intelligence services could have done instead. It simply does not add up, and there remains no counter narrative in defense of Trump that makes any sense.

Although it is true that the Democrats are moving quickly and without full information, largely by virtue of the White House refusing to cooperate, the majority of the scholarly panel this week was correct to suggest that this is a “code red” moment in American democracy. If we let presidents use their office to get reelected, then we will lose our ability to control our own government. When we lose that, our individual rights will no longer be rights but more like goodies that can be doled out to select people by a president acting more like a monarch, depending on his own personal predilections and politics. That is not the America I want for my children.

Kimberly Wehle is a former assistant United States attorney, a former associate independent counsel in the Whitewater investigation, and a professor at the University of Baltimore Law School. She is a CBS News legal analyst, a BBC News contributor, and author of “How to Read the Constitution and Why.” You can follow her updates online @Kim_Wehle.