Personnel is Policy: Why Argentina’s Latest Supreme Court Nominee Threatens Anticorruption Efforts

Last November, Javier Milei, a former economics professor and political outsider, won the presidency of Argentina, riding a wave of popular outrage against the political elite. The roots of that outrage are not hard to understand: Argentina is in the midst of a historic economic crisis, with out-of-control inflation and skyrocketing poverty. And many believe, with some justification, that Argentina’s deep-rooted political corruption is partly to blame. Argentina has been rocked by a series of corruption scandals, several of which have been documented on this blog (see here, here, and here). In campaigning on a platform of radical economic reform, Milei promised to take on the “parasites” and “thieves” who comprise the corrupt elite. After Milei’s victory, he immediately faced a problem in advancing his policy agenda: his newly-created party won just 44 out of 329 seats in Congress. That left Milei with two options: He could either take the traditional route of trying to form alliances with other parties to get some form of compromise reform package through Congress, or he could push the constitutional envelope by trying to enact aggressive reforms through executive fiat. Milei has chosen the latter path. This is not surprising: He was always going to face an uphill battle getting Congress onboard with his aggressive reforms, as there are simply too many entrenched interests, and Milei himself is an exceptionally polarizing figure. But pushing through radical reforms without congressional consent will require approval of the Supreme Court, an institution deeply embedded in the political caste.

In seeking to secure Supreme Court approval of his attempt to radically restructure the economy by executive fiat, Milei appears poised to make Argentina’s corruption problem even worse. Many observers believe that one of Argentina’s current Justices—a savvy political power player named Ricardo Lorenzetti—offered Milei a deal: If Milei would appoint Lorenzetti’s allies to fill the two vacant seats on the Court—which would give Lorenzetti’s faction a majority—Lorenzetti would use his influence to ensure favorable judicial treatment of Milei’s aggressive reforms in the justice system. One of the two nominees that Milei has put forward, a Lorenzetti ally named Ariel Lijo, is one of the Argentine judiciary’s most notoriously corrupt figures. One can see why Milei was tempted to stack the Court with Justices who would reliably side with him, but this is a Faustian bargain that poses a grave and long-term danger to anticorruption efforts in Argentina.

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Can Argentina Prosecute its Leaders Without Dragging Down its Democracy?

Prosecuting a former leader for corruption is no easy task, but it is one that a lot of countries have had to undertake. In fact, since 1980, roughly half of the world’s nations have seen their former leaders jailed or prosecuted. The vast majority of those cases involved corruption charges.

Argentina has been in this situation quite a few times. Most recently, Cristina Fernández de Kirchner—the country’s ex-president and current vice-president—has been standing trial for having allegedly diverted state funds to a friend through fraudulent public works contracts. This seems like a victory for rule of law. But with the divisiveness and instability that the process has caused, it’s not clear whether the prosecution of Kirchner has done more good than harm. Because this is probably not the last corruption case that Argentinian authorities will bring against a former leader, enforcers should learn from the problems that have arisen from the Kirchner investigation.

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Argentinian Judicial Reform: A Wolf in Sheep’s Clothing

On February 1, 2022, several thousand demonstrators marched on the streets of Buenos Aires to demand judicial reforms. The march was supported by Kirchnerist groups (so-called because of their support for former Presidents Néstor Kirchner and Cristina Fernández de Kirchner) and by President Alberto Fernández, a Kirchner ally who has been pushing for judicial reforms since his inauguration in 2019. Frustrations with Argentinian courts, however, transcend partisan divides. Polls indicate that about 70% of Argentinian adults believe the judiciary is corrupt, which is not very surprising given the recent string of high-profile judicial corruption scandals. Just last year, Judge Walter Bento was indicted and charged with running a large-scale corruption network. Likewise, in 2019, Judge Raúl Reynoso was sentenced to 13 years in prison for bribery and narcotrafficking. Judge Carlos Soto Dávila was similarly indicted in 2019 for accepting bribes in drug trafficking cases. Not only is there extensive evidence of judicial corruption, the Argentinian judiciary seems entirely ineffective at holding Argentina’s notoriously corrupt political class accountable: appallingly, only 1% of all corruption cases in Argentina ever result in an actual sentence.

In light of the Argentinian judiciary’s clear corruption and legitimacy problems, judicial reform seems like a step in the right direction. However, President Fernández’s plans for transforming Argentina’s judiciary, which he rearticulated this March, may actually worsen corruption rather than rectify it.

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How Should the U.S. Anticorruption Community Respond to Trump? Engagement vs. Confrontation

So Donald Trump is now the President of the United States, and has been for almost two weeks. Yes, this is really happening. And yes, this is really frightening. As has been pointed out countless times, Donald Trump poses a unique and unprecedented threat to American political institutions. It’s not mainly the hard-right policies that President Trump and the Republican Congress will push. People can strongly disagree with much of that policy agenda (as I do), but those policy positions are, alas, within the American political mainstream. And it’s not just Trump’s obvious narcissism, racism, and ignorance, bad as those are. On top of all that, Trump seems to view the presidency mainly as an opportunity for personal enrichment, and many of his top-level advisors and appointees seem to have a similar attitude. Notwithstanding his (obviously disingenuous) “drain the swamp” rhetoric, Trump—and many congressional Republicans—seem to have little regard for basic ethical norms and principles. And there are reasonable fears, based on what we’ve seen so far, that much of the Trump Administration’s policy agenda, though couched in familiar conservative market-oriented rhetoric, will in fact be oriented toward enriching the friends and families of senior administration officials, including but not limited to Trump’s own organization.

A democratically elected head of government who ran on a populist platform, but whose agenda seems to be oriented primarily toward using political power to enrich himself and his cronies? This might be a new experience for Americans, but as Professor Palifka pointed out in her post last week, this is a familiar story in many other countries (including Mexico, Ms. Palifka’s lead example). Think Silvio Berlusconi in Italy, Nestor and Cristina Kirchner in Argentina, Thaksin Shinawatra in Thailand, Jacob Zuma in South Africa, and countless others. Now that the U.S. seems to be facing a similar situation, the U.S. anticorruption community—which I’ll define loosely as the diverse set of activists, advocacy groups, commentators, researchers, scholars, and others who focus on anticorruption in their professional work—needs to be actively involved in responding.

Unfortunately, the U.S. anticorruption community is not especially well-prepared to deal with this situation. Put aside for the moment that the most prominent international anticorruption advocacy group—Transparency International (TI)—recently voted to strip its U.S. chapter (TI-USA) of its accreditation, triggering an ongoing internal fight that has, I gather, left the chapter in limbo. (That’s a whole other story.) Much more important than any internal organizational drama is the fact that most U.S. anticorruption advocacy groups have typically focused on questions of U.S. anticorruption policy—such as FCPA enforcement, asset recovery, corporate transparency, and the like—not on systemic corruption in the U.S. government itself. True, some groups have in the past positioned themselves as fighting systemic corruption in the U.S. government, but those groups generally use a broad (in my view, overly broad) definition of “corruption” that emphasizes primarily campaign finance and lobbying reform—noble causes, to be sure, but not really the main worry right now. The U.S. anticorruption community faces a challenge that’s more akin to the challenge anticorruption communities have faced (or are still facing) in places like Mexico, Italy, Argentina, Thailand, and South Africa, though perhaps with even higher stakes.

My sense is that many leading figures in the U.S. anticorruption community are already thinking hard, and having many constructive conversations, about how to respond to the unique challenges posed by the Trump Administration. In the remainder of this post, I want to focus on a basic strategic question that I’ve seen come up many times in these conversations: Engage or confront? Continue reading