Getting the Memo, But Not Getting It

As predicted, the “content” of the Nunes memo is a ruse. The press and people who read are obsessing over it, while Trump and his minions have already declared that it demonstrates a witch hunt. It is made for waving around at cameras, not for hermeneutics. Democrats desperately trying to figure out how to rebut it are wasting their time; there is no rebuttal, because Nunes didn’t bother developing an argument. Demagoguery just doesn’t work that way.
Which brings up a larger point. For a very long time, critics of liberal-constitutional democracy have complained that it is a ruse. Sure, there is formal juridical equality, but this is only cover for maintaining a de facto hierarchy. Yes, there are norms and rules, but they are only cover for self-dealing and structural oppression. The system justifies itself by appealing to universal reason, but maintains itself—in the last instance, but often also in the first— through unaccountable use of force. Etc. The favored solution to this problem has been to call the bluff and move to direct, participatory, egalitarian, collective self-rule.
What typically got lost in this critical project is that calling the bluff makes authentic democracy far less, not more, likely. The referred belief that sustained procedural rules and norms had genuine binding power precisely because it was referred, attributed to others as a criterion of judgment and source of likely sanctions. This is what underlay its performative felicity. Just as one need not “really believe” in an inner truth of marriage to become married by saying “I do,” one could rely on the pretense of belief in democratic norms to parse a document purporting to exculpate a public official. The pretense, qua pretense, is what made it possible to think genuine (egalitarian, participatory) democracy is possible; it was the source of this belief, and thus ultimately not a pretense at all.
This is what the critics of procedural democracy never grasped: suspending this circuitous logic of belief yields authoritarianism, not a more authentic form of democracy. Now, no one pretends to believe in those norms, but this does not deprive them of power. On the contrary, it is only now that they begin to do what critics have mistakenly thought they’ve been doing all along: furnishing disingenuous cover for the ruthless exercise of arbitrary authority. One can no longer appeal to them to challenge those wielding institutional power. Worse, one can no longer appeal to any normative principle at all to challenge them.
So we can fact-check and debunk the logic of the Nunes memo forever without gaining any purchase on those using it (and other means) to bring the entire state apparatus under Trump’s unilateral, unconstrained control. That is what fake appeal to principle really looks like. The reflexive allegorical fiction of procedural democracy seems preferable by comparison.
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