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


Professor Sujit Choudhry is an internationally renowned scholar whose research addresses a wide spectrum of issues in comparative constitutional law 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 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 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 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.


Please enter your comment!
Please enter your name here