The Disturbing Campaign Against Poland’s Judges
Democracy depends on the rule of law. But the leading party treats the Polish judiciary as a mere obstacle to power.
Last summer, a very unusual scandal unfolded in Poland—or rather, a very ordinary scandal, but with some unusual protagonists. A journalist at a Polish news website, Onet.pl, exposed the existence of an organized online trolling campaign designed to discredit public figures. An everyday occurrence, of course. Except that this time, the smear campaign was aimed at a group of judges, and the organizers were based inside Poland’s Ministry of Justice.
One of the professional trolls—the news site identified her only as Emilia—had been regularly posting material on Twitter about judges whose rulings and public comments were critical of government policy. (An example of her oeuvre: “Fuck off! You are bringing shame on honest judges and dishonor to Poland.”) Emilia also organized a campaign to send vulgar postcards to the chief justice of Poland’s Supreme Court. (These were eloquent in their brevity: “Fuck off!”) She anonymously sent defamatory information about another judge to all of his colleagues, as well as to the judge himself at his home address. She obtained this address from Poland’s deputy minister of justice, who was helping coordinate her smear campaign.
Emilia, who told Onet.pl that she’d had a change of heart, allowed her text conversations with this same deputy minister to be published. He resigned the next day. But his boss, Minister Zbigniew Ziobro, did not resign. And the government-sponsored campaign against Polish judges continues, expanding into a full-blown constitutional crisis in the past week.
Since it began in 2015, outsiders have found this story hard to understand. The Polish court system is complex; the concerted attempt to pack the courts over the past five years and destroy their independence has been couched in heavy legal language and obscured by propaganda—about which more in a moment. But Emilia’s story provides a good starting point, because it demonstrates the real intentions of the Polish ruling party whose name, Law and Justice, already sounds not just ironic but sinister. A functioning democracy, whether in Warsaw or Washington, requires, at a minimum, the rule of law, fealty to a constitution, and some basic respect for the judges, lawyers, and everyone else who makes the legal system work. If senior figures in the Ministry of Justice, people whose salaries are paid by taxpayers, were willing to organize covert intimidation campaigns against judges, then what else might they be capable of? We may be about to find out.
Before I continue, let me declare a personal interest: I am married to a Polish opposition politician who is now a member of the European Parliament. He knows—we know—that politicized courts could, eventually, be used against us and our friends. Poland is not the United States, where courts have become ground zero for a culture war. Instead, Law and Justice leaders want control of the courts in order to protect their own interests, tilt the political playing field in their own favor, and extend their stay in power indefinitely. Pliant judges could be of assistance to corrupt government officials—recent cases reveal that there are quite a few—who want to escape prison sentences. They may also be able to help when the government uses legal tricks to take control of private media, as some of its members have openly said they hope to do.
Alternatively, politicized judges could help Ziobro, who is chief prosecutor as well as the justice minister (yes, that’s very strange even in Poland), use fake evidence to lock up members of the political opposition. There is a precedent for this: One of his colleagues, the current minister of the interior, was convicted of manufacturing evidence in a case against another politician a few years ago, when he was the head of the anti-corruption bureau. He is not in jail, because he was pardoned by the current president, Andrzej Duda, also of the Law and Justice party. Nor is that the only example. This is a team of people who have tried multiple times to use fake evidence to achieve political goals; recently a former anticorruption-bureau agent said he had been asked to help construct a fake case against a former Polish president. There is no doubt that they could do it again. An old-fashioned form of black humor—think how much reading we will all get done in prison!—is now part of Polish kitchen-table conversations and political chitchat, just like it was when I first came to Warsaw, in the 1980s.
The sense of déjà vu is deepened by the pervasive anti-judge campaign, which now penetrates the airwaves. In recent days, Polish state television—which is fully controlled by Law and Justice in defiance of a constitutional provision meant to ensure that state media are politically neutral—has broadcast a nightly program called Kasta (“The Caste”), which depicts judges as corrupt and greedy. The program echoes a slick $2 million government-funded campaign—by Poland’s standards, an enormous amount of public money to spend on advertising—that has featured, on billboards and television spots, sinister black-and-white photographs accompanied by stories and slogans designed to reduce public confidence in the judiciary. “A judge stole a sausage from a shop” is one example. “A drunk judge was found fighting in a bar” is another. Some of the stories were true—there are thousands of judges in Poland, and occasionally one of them gets drunk—but others were false or exaggerated. The judge who stole the sausage, for example, had been retired for many years and was mentally ill. One Polish judge, Dariusz Mazur, likened this peculiar situation, in which one part of the state seeks to discredit another part of the state, to something out of George Orwell—or perhaps Monty Python.
Not all of the campaign money was spent in ways that people could immediately see. Last week, investigative journalists revealed that another prominent news portal, Wirtualna Polska, has been paid to write articles promoting the Ministry of Justice and its policies. At least one of the “journalists” whose names appeared on these articles does not actually exist. Real journalists, meanwhile, have been warned not to criticize the ministry, or the minister, on pain of losing their jobs.
The public campaigns have been accompanied by targeted legal and career threats aimed at individual judges. I met a few of them recently in Strasbourg, where they had come to meet with European Union officials. One of them, Waldemar Żurek, underwent a personal financial audit that went on for 18 months and now faces five separate disciplinary proceedings. A Photoshopped picture of him appearing to give the finger to a camera during a demonstration—in reality he was holding up two fingers in a V-for-victory sign—was widely shared by a Law and Justice official close to the party leadership. Several dozen other judges who have criticized government policy or have issued verdicts that Ziobro or other officials don’t like have been subjected to reprisals and even criminal investigations. A new provision, just passed by the Parliament and nicknamed the “muzzle law,” will make it easier for the new disciplinary bodies to remove judges from the bench altogether.
Finally, the government has waged a different sort of propaganda campaign abroad, one designed to convince gullible foreigners that Polish judges are Communists left over from the bad old days, and that they therefore deserve to be purged. A bit of math disproves this claim: The Berlin Wall fell 30 years ago, while the average age of a Polish judge is 42. The vast majority were not old enough to be Communists, or even anti-Communists, at all. A little history helps, too. The upper ranks of the Polish judiciary were indeed purged, in the 1990s. Those judges who were then allowed to stay—and only a tiny handful of them now remain—were relatively young and had been involved only in strictly criminal, apolitical cases.
At the moment, it is not the judges but ruling-party politicians who now sound remarkably like the former Communists they claim to hate. President Duda chose a beer hall as the venue to use the language of ethnic cleansing and pogroms: “We must cleanse our Polish home,” he said, speaking of the judges he wants to eliminate, “so that it will be clean, orderly, and beautiful.” Still, it is amazing how many outsiders have fallen for it. British conservatives, for some reason, seem particularly susceptible.
All of this activity, from the anonymous trolls to the fake authors to the fake anti-Communism, has had a straightforward goal: To convince both the Polish public and the international community to accept a series of changes misleadingly described as a “judicial reform.” In reality, these changes have, as noted, amounted to an elaborate exercise in unconstitutional court-packing. Law and Justice does not have a constitutional majority. It does not even control both houses of Poland’s legislature. And so the party has sought to change the rules regarding judicial appointments by making hundreds of minor changes to legislation, thus creating new courts and judicial bodies that will enact what are, in practice, radical constitutional changes.
The word reform is misleading, because this group of policies was never intended to make the Polish judiciary more efficient or more competent. On the contrary, the so-called reform has gummed up the entire system. The point was to ensure that the majority of judges, even if unqualified, are blindly loyal to the ruling party. An example: Law and Justice has appointed to the country’s constitutional tribunal a man named Stanisław Piotrowicz, who is not only a former Communist, but a former martial-law-era Communist prosecutor, responsible for putting dissidents in jail. His appointment made a mockery of the argument that this “reform” was about clearing out old Communists, but mockery may well have been the reason he was chosen. Law and Justice is taunting its opponents.
I don’t think my personal involvement has blinded me to the political reality: The government’s anti-judge campaign, though unprecedented in its viciousness and its lavish public funding, has not bothered the majority of Poles. As it turns out, “rule of law” and “judicial independence” are just abstract concepts to most people; arguments about the distinctiveness of the three branches of government don’t move big majorities either. It’s true that a very active, very vocal minority is angry about what has happened to the courts, and tens of thousands have joined mass protests outside courthouses across the country in the past several years. On January 11, the “march of a thousand togas” included judges from across Europe as well as Poles. A new generation of political activists, including some activist judges, have created organizations designed to raise public awareness, filling a gap in civic education that nobody previously knew existed.
But the details are byzantine, the legal issues are fiendishly intricate, and the government’s nonstop anti-judge propaganda campaign has probably left a mark. Although ordinary people will eventually be harmed by politicized courts, they don’t feel it yet. The government has gambled that the average voter, convinced that judges are members of a distant and unpatriotic elite, will remain indifferent. Law and Justice might be right.
This sentiment is not unique to Poland. European courts and legal bodies have come down clearly on the side of the Polish judges. Europe’s top court, the European Court of Justice, may eventually rule that Polish courts cannot be trusted. But Law and Justice is hardly the only European political party now seeking to stifle the judiciary, and Poland is not the only country where judges are subject to public vilification. The Hungarian government has also spent years undermining its courts, though with somewhat more subtlety. Back in 2016, after a court ruled that the British government would need the consent of Parliament before taking Britain out of the European Union, the Daily Mail, a conservative tabloid, ran a photograph of the judges under the headline “Enemies of the People.” The Conservative prime minister, Boris Johnson, has now begun to consider a “judicial reform” of his own. In the United States, President Donald Trump has attacked judges whose rulings he dislikes, calling them “Obama judges” or “pro-Mexico,” and condemning courts as “totally biased.”
Nor is this only a right-wing trend. During its tenure in office, the far-left Greek ruling party, Syriza, also had a number of public fights with judges, one of whom said the government had planted salacious material about him in a newspaper as a form of intimidation. Independent judges have always frustrated governments that don’t see why unelected arbiters of the law should stand in their way. Tabloids, social media, and the loss of inhibitions about what counts as an acceptable tactic have given politicians new tools to undermine their black-robed nemeses, especially given the reality of popular indifference.
Still, the Polish crisis is by far the deepest, and it has now reached a climax: On January 23, three chambers of Poland’s highest court—60 judges—met in an extraordinary session and ruled that more than 350 judges have been appointed improperly and have no legal standing to hear cases. Judicial bodies loyal to Law and Justice say they won’t recognize the decision. Ziobro denounced it. Deadlock, chaos, and uncertainty have ensued. Which, again, may be intentional.
This confrontation could have a positive outcome, if Polish judges follow the high court’s lead, as, in theory, they are supposed to do. Other observers are less optimistic. Żurek, one of the judges who has been subject to both legal and personal harassment, reckons that the government will ignore the high court’s ruling and aggressively seek to remove its members. The whole point of the smear campaign, after all, was to prepare the public for a wholesale dismissal of this odious “caste.” “We are very determined,” Żurek told me; “we are ready for anything.” He expects defiance of the European Union, attempts to remove sitting judges from their positions, even some arrests. And if the government succeeds? “That will be the definitive end to democracy.” It may also be a harbinger of things to come in other countries too.