Congratulations — a closely divided US Supreme Court has just ruled in Carpenter v. United States that you have a constitutional right to privacy in the locational records produced by your cellphone use. Law enforcement now cannot ask Sprint, AT&T, or Verizon, for cell tower records that reveal your whereabouts through your phone’s interaction with those towers, at least without a warrant. 

Carpenter builds on two earlier decisions. In 2011, the Court required a warrant before police placed a GPS tracker on a vehicle to track its movements. In 2014, it forbade warrantless searches of cellphone during arrests. Whatever it’s other flaws, the Roberts Court thus seems to understand electronic privacy’s importance.

But there are a couple of things to know before toasting the Court’s high regard for privacy in the digital age. The Roberts Court, building on what the preceding Rehnquist Court did, has created an infrastructure for Fourth Amendment law that makes it exceptionally easy for police to do a search, even when a warrant is required. The law also makes it exceptionally difficult for citizens to obtain close judicial oversight, even when the police have violated the Constitution. As a result of these background rules, even a decision as seemingly important as Carpenter is unlikely to have any dramatic effect on police practices.

It’s not just that our digital privacy is insufficiently protected, in other words. It’s that our Fourth Amendment rights and remedies in general have been eroded. Once enough holes have been poked in the general system for vindicating Fourth Amendment interests, the decision to extend Fourth Amendment coverage to a new domain — such as cell-site locational data — is just not terribly significant.

Timothy Ivory Carpenter had been convicted of nine armed robberies based on witness testimony, but the prosecution also stressed in its closing argument records obtained from his cellphone company. Those records showed how Carpenter’s phone interacted with the cell phone towers that carried its signal. As Chief Justice Roberts emphasized, the records painted a detailed picture of Carpenter’s movements over 127 days.

Yet the government did not use a warrant based on probable cause to obtain those cell-site records, relying instead on a statute called the Stored Communications Act.

Forcing police to get a warrant is not much of a protection these days

Consider first the core constitutional protection on which Chief Justice Robert’s opinion in Carpenter hinged — the requirement of a warrant based on probable cause from a judge before the police can acquire cell-site records that allow for detailed physical tracking of suspects’ movements.

From now on, the police will usually have to get a warrant before seeking such information. But that offers limited protection. One reason: In other Fourth Amendment cases, the Court has held that it is not just life-tenured federal judges who can issue warrants. A warrant can also be obtained from a range of other officials, including municipal court clerks who have no law training and no tenure protection. Such clerical staff lack the skills and incentives to examine warrant applications closely to determine compliance with the law. Still, they are allowed to issue warrants.

Even where there are no such court clerks, it is well known that police and prosecutors go “judge shopping” when a physical search or arrest is in play. Judges have varying reputations for being more or less careful in scrutinizing warrant applications. It is often well known which judges in a city or courthouse are more or less scrupulous. When police have a weak warrant application, they have a strong incentive to avoid judges who will give it a close read.  

These weaknesses in the warrant regime for physical searches or arrests are exacerbated when electronic data is at issue. Warrant applications for cell tower records often rest on technical details about the geographic and temporal scope of the search. These applications might in theory seek a quite varied range of information, including the target’s location, the number of calls he made, and the manner in which he used apps.

Review of the application will also require fine judgments about when information can be shared with other law enforcement agencies and government officials. Just because a prosecutor can obtain electronic data, for example, that surely doesn’t mean she can hand it over to, say, a political appointee in the White House or a Department of Transportation employee who happens to be the subject’s boyfriend. 

Because close scrutiny by an experienced and independent judge has become so easy to avoid, there is no guarantee these questions matters will get careful and independent consideration — even if a warrant is sought and issued consistent with the main holding of Carpenter.

The hurdle of “probable cause” has also been steadily lowered

Assume that police are before a scrupulous judge. Even then, the background Fourth Amendment rules mean that they have a light burden to bear. As Chief Justice Robert’s opinion today stresses, a warrant can be issued only based on “probable cause.” But in a series of earlier cases about physical searches, the Court has winnowed down the “probable cause” requirement to the showing of a mere “fair probability” that evidence of a crime will be found.

This “fair probability” requirement has become easier to satisfy in recent decades because federal and state legislatures have created sweeping penalties for conspiracies to commit crimes and for accomplices.

Showing a “fair probability” of a conspiracy to commit a crime is not difficult. Under federal law, for example, a criminal conspiracy exists if there’s an agreement to commit any criminal act in the future, and one step — even a lawful one — taken to that end. In one case, for example, a Google search served as the “overt act” for an elaborate conspiracy charge, even in the absence of evidence of actual planned criminal conduct.

This sweeping definition of criminal liability interacts with the weak “probable cause” rule. Police need only show a “fair probability” that a single lawful action has been taken in relation to a criminal agreement, and they are entitled to a warrant. This is not hard to do.  

This problem is pervasive across Fourth Amendment law. But it has particular significance to cell-site locational data. Such data maps the movements of a group of people — precisely the evidence that is routinely relevant to conspiracy charges. So with a conspiracy theory in hand, it will often be very easy for the police to meet the (exceedingly weak) probable cause standard.

Would a warrant requirement have made a practical difference in Carpenter’s case?

In Carpenter’s case, investigators had a confession from one of the participants in the string of armed robberies. They also had the cell numbers of other participants, including Carpenter’s. These two pieces of information would almost certainly have been enough to allow the government to get a warrant on a conspiracy theory of probable cause.   

But imagine that the investigator couldn’t even pull together evidence showing probable cause of a conspiracy. Imagine that they instead play fast and loose with the contents of the warrant application. For example, the application might rest on some dubious evidence, and the investigator might consciously choose not to confirm its accuracy. Once charges have been filed, could a defendant get the locational data thrown out on the grounds that the warrant application was based on false pretenses?

Once again, general Fourth Amendment law makes this possible in theory but unlikely in practice. To get evidence acquired by a warrant tossed out of court, a defendant must show that an investigator acted with “reckless disregard” in preparing a warrant application. In most states and in federal court, there is no rule that permits the defendant to examine police or prosecutor records. Hence, the defendant often must make this recklessness showing without any documentary evidence of what the police did.  

It is therefore usually practically impossible for most defendants to challenge flawed search warrants. Again, warrants for electronic data are no different.

Even if a defendant succeeds in getting a warrant quashed, moreover, the Supreme Court has said that a reviewing court of appeals must look again at the warrant — now placing a thumb on the scales in favor of the investigating officer. In effect, when the government loses the rare case in which a defendant can show a warrant to be flawed, it gets a second chance to have the warrant restored by a court of appeals.

Prosecutors can use illicitly obtained information if a suspect testifies

Still, lean your imagination into the wind to imagine a defendant who has overcome all these constraints, and had a warrant quashed. The evidence from that flawed warrant can still be introduced at trial if the defendant chooses to testify. The Supreme Court established that rule in the 1971 case of Harris v. New York, on the grounds that if the defendant could give testimony, the government had the concomitant right to undermine it by whatever information was in its hands.

As a result, even when the government has illegally acquired evidence, its possession of that evidence creates a strong incentive for defendants not to take the stand. Needless to say, this will often make the prosecutor’s job easier.

If a defendant chooses not to testify, that is still not the end of the story. The government can also argue that information gathered unlawfully without a warrant should be admitted because there was an emergency. Chief Justice Roberts explicitly carved out an emergency exception in his Carpenter opinion, citing the possibility of “bomb threats, active shootings, and child abductions.” In such cases, no warrant is required.

Also, if the locational data was acquired without a warrant before Carpenter was decided, the Court held that it need not be kept out. Carpenter hence helps no one whose cell-site locational data was acquired before this week. And the Carpenter opinion also leaves open the possibility that police can acquire less than seven days of cell-site data without a warrant. 

Are there other paths for redress? Someone in Carpenter’s shoes, whose Fourth Amendment rights have been violated, can technically sue the police for damages even if they are not charged with a criminal offense. The problem is that the Court has almost completely squelched the availability of damages for most constitutional wrongs, including the Fourth Amendment, through a series of technical anti-plaintiff rules.

In short, the legal framework of Fourth Amendment remedies has been riddled with so many exceptions and loopholes that Carpenter’s holding that a warrant is required to acquire cell-site locational data is likely to impose no great burden on the police.

If police can’t get the information through cellphone companies, they will turn up the heat on suspects

But the facts around the electronic data in Carpenter make the Court’s holding especially hollow. Locational data is held not only by telephone company. It is also contained on a person’s phone, even if she chooses to disable locational tracking. (Certain apps can track locational data produced by a phone’s internal sensors without the owner’s knowledge or permission.) This data is generally accurate to a foot or so.

Police can thus acquire location data — and much more — if they ask for consent to examine a phone. Extensive psychological research shows that most of the time —especially if the suspect is a woman or a racial minority — suspects are likely to say yes.  

General Fourth Amendment law says police can seek consent to make a search. In the physical search context, the Court has consistently ignored the fact that people often feel they have no choice but to acquiesce.

Consider the leading Supreme Court case on consent searches, United States v. Drayton. Two men are traveling by bus in Florida, when police board the bus and question passengers about their trip. The first man is asked to “consent” to a pat down. He does — and the officer finds blocks of cocaine taped to his groin. After this first man is led away in handcuffs, the officer turns to his traveling companion and says, “Mind if I check you?” The second man agrees. Drugs are found in exactly the same spot on his body. The Supreme Court holds that he consented to the search.

My students, encountering Drayton for the first time, often have a moment of cognitive dissonance. Why, they wonder, did the suspect consent after he saw what happened to his friend? When I point out that both men were racial minorities in a jurisdiction with a history of police violence, and that neither was highly educated nor socially privileged, then the facts start to make more sense.

Ironically, the Carpenter decision makes it more likely that police will aggressively exploit the weaknesses of the Court’s consent case-law. By making it slightly more hassle to obtain cell-site locational data from a telephone company, the Court has encouraged police to exploit the frailty of its consent doctrine. That is, by making it harder to acquire electronic data from a third party, the Court has nudged police toward more forceful and unpleasant confrontations with citizens by which “consent” can be secured.

This should not count as a “success” for Fourth Amendment freedoms.

Electronic privacy rests on the rules and remedies that apply to the Fourth Amendment generally. In the past 40 years, those rules and remedies have been substantially eroded by a Court unwilling to constrain police.

The result today is that even when a decision endorses Fourth Amendment protection —and requires a warrant, as in Carpenter — that protection is easy to avoid, and likely ineffectual in practice.

Aziz Huq is the Frank and Bernice J. Greenberg professor of law at the University of Chicago Law School.

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com

Shortly after the Trump inauguration, I made the case that US politics displayed troubling echoes of the democratic backsliding other nations have suffered in the past decade. Where do we stand, one year into the Trump presidency? With robust economic growth, a very predictable blend of tax cuts and deregulation crowding the Washington agenda, and the #MeToo movement putting sexual harassment in the (long-overdue) spotlight, were the concerns I and others expressed overblown?

Did the plot against America unravel before it happened?

Not so fast. Democratic decline, as recent experience in Poland, Hungary, Turkey, Kenya, Venezuela, Bolivia, and Russia shows, is an incremental process. Leaders such as Hugo Chávez and Recep Tayyip Erdoğan have been elected on the back of populist platforms and then have set about dismantling institutional checks on their authority from courts, legislatures, and the civil services. The quality — and in cases such as Venezuela, the very possibility — of democratic competition has waned. 

Venezuela aside, such democratic erosion is wholly consistent with strong economic growth. Indeed, robust growth may paradoxically have provided a buffer for anti-democratic populists to grasp political power without sparking widespread dissent.

In three ways, the US experience of the past year continues to track developments in polities where democracy has eroded. There is clear evidence that the quality of democratic government is set on a sharply downhill gradient; whether the changes can be reversed is a different matter.

A rise in the scapegoating of racial and ethnic minorities

A first bellwether of democratic backsliding is a resurgence of unabashed racial animosity as an accepted form of political argument. In several declining democracies, self-proclaimed populists have accumulated public support by turning majority sentiment against a racial or ethnic minority.

Leaders as disparate as Hungary’s Viktor Orbán and Sri Lanka’s Mahinda Rajapaksa have invoked racial unity to deflect legitimate criticism and limit democratic competition. Such tactics reap electoral gains regardless of how substantial the minority in question is. Rajapaksa’s invective and policies targeted Sri Lanks’s Tamils, who make up roughly 11 percent of its people and who had been participants in a long-running civil war in the country’s north. In contrast, Orbán railed against Muslims and migrants, even though they make up a vanishingly small share of Hungary’s population.

The common logic of such populists is to use a shared animosity against outsiders as a substitute for more familiar criteria of democratic success, such as effective public policies and broadly shared economic gains. In short, racism is not a sideshow in democratic decline; it’s tightly woven into the main event.  

Even before Trump’s inauguration, white Americans were increasingly receptive to explicit racial appeals, an unraveling of progress we’d seen after the “Southern strategy” of Nixon and Atwater had seemingly run its course.

But things got worse. Consider Trump’s embrace of anti-Muslim animus in the form of the travel ban and his retweets of the hateful anti-Muslim libels posted by a leader of the nativist group Britain First, Jayda Fransen. Or consider his racialized denigration of immigrants, echoed by his attorney general’s conjuring of “crime, violence and even terrorism” as justifications for ending the Deferred Action for Childhood Arrivals program.

Given that there is no evidence that DACA beneficiaries commit a disproportionate number of crimes, let alone any terrorist acts, that justification can only be understood as another subtle deployment of a pernicious stereotype. Or recall the president’s equivocation about white supremacists marching in Charlottesville, Virginia — a concerted effort at moral blurring that has already shaped Republican public opinion on the moral acceptability of white supremacists.

All of these actions appeal to racist and nativist sentiments. All reflect a belief that there is a hierarchy of races, cultures, and faiths. Such views are intrinsically shameful, but more to the point here, they are directly harmful to democracy.

That’s in part because hateful rhetoric leads to hateful deeds against American citizens. In 2017, there was a new surge in hate crimes against racial and ethnic minorities. Although the causes of this trend cannot be conclusively proven, it is not unreasonable to think that presidential endorsement of white supremacy legitimatizes and popularizes such violence.

Congress and other institutional actors have revealed no willingness to punish self-dealing

The second reason for concern about democracy’s health is subtler. Democracy remains a going concern not because the law commands it to be so. People who wield state-sanctioned power also have to be willing to follow the laws. Some do so because they have internalized the values of democratic tolerance and pluralism. Others, however, lacking those commitments, will decide to keep faith with democracy only if there are political costs to acting against democracy and the rule of law. A pronounced collapse of those political costs bodes ill for democracy’s perseverance.  

The past year has revealed that key political actors, including members of Congress, will tolerate flagrant malfeasance by the president and members of his administration, both in politics and on personal matters. And it’s not just that there is no cost to such actions: The perception that Trump stands above the rules, that he pokes hallowed institutions such as the FBI in the eye, might even improve his standing among his core of true believers.

Perhaps the most vivid example of putting personal interests above national interests is the White House’s repeated interference in federal investigations into Russian involvement in the 2016 election. News of the president’s firing of James Comey, an action done avowedly to curtail investigation into his inner circle, followed by reports of his contemplated firing of Robert Mueller, have not resulted in either sharp rebukes from Trump’s fellow Republican elites or a dramatic slump in his support among Republican voters.

What’s more, a president’s actions set a standard for other actors in the government. And top officials have followed Trump down the low road. After the president criticized Deputy FBI Director Andrew McCabe, Attorney General Jeff Sessions reportedly tried to have McCabe fired; Sessions also reportedly tried to gather dirt on Comey before his firing. McCabe ultimately resigned, two months before he became eligible for retirement.

It is extraordinary that an attorney general would engage in a war of attrition against his own investigative apparatus at the behest of a president publicly implicated by that investigation. That his efforts would elicit almost zero public reaction offers further evidence that American political elites aligned with a political leader are no more likely to stand up for democracy than leaders in Poland or Hungary. 

One crucial development over the past year has been the gradual elimination of formal platforms from which the opposition party can register objections to corruption and other systemic threats to democratic values. Consider the gutting of the filibuster and the more general move toward an increasingly pure form of majoritarian process — such efforts by Senate Republicans eliminated opportunities to raise objections to self-dealing in the White House.

These institutional changes lower the cost of executive wrongdoing, whether for partisan personal gain, hastening the process of democratic unraveling. 

Contempt for the rule of law among the political elite matters beyond the Beltway. A growing belief that political and financial wrongs yield no political penalty sets in motion a vicious circle. Voters who look to elected leaders for guidance see that self-dealing is tolerated. When that’s the case, they are themselves less likely to object, making it all the easier for elites to continue to turn a blind eye to malfeasance. Apathy breeds apathy. 

Co-opting the bureaucracy for political ends

The third and final warning sign regarding democratic backsliding relates to the civil service. A central element of democratic backsliding worldwide has been attacks on a professional and independent civil service capable of correcting or embarrassing would-be autocrats. In the United States, where the Constitution fails to protect the autonomy of the civil service from partisan politicization (through tenure rules, for example, or institutional separation from elected actors), American bureaucrats are sheltered only by a fragile skein of statutory and customary protections.  

They are thus vulnerable. Hence, the Office of Government Ethics, initially active under Walter Shaub, has been largely quiescent since his resignation in July. The administration’s early attempt to fire en masse all federal inspectors general was shelved in February last year. But as their investigations start to heat up, expect renewed efforts on this front.

In other areas, the bureaucracy is proving adept at tacking with the political winds. After the president suggested that the FBI should reopen its investigation into the Clinton Foundation, the agency, remarkably, did so. That decision raises questions about the criminalization of political difference in a way that the Russia investigation, which rests on clear evidence of serious criminality, simply does not, Republicans’ protestations aside.

It is these material changes to federal policy and practices, and not the more abstract erosion of political “norms,” that supply the justification for continued concern for the health of our democracy. All, critically, set the stage for even quicker degradation of democracy and more endemic self-dealing.

Collectively, these developments suggest that the first year of the Trump administration has set the United States, perhaps irreversibly, on a new and perilously uncharted course that may, one day, lead us beyond democracy.

Aziz Huq is the Frank and Bernice J. Greenberg professor of law at the University of Chicago. He is the author, with Tom Ginsburg, of a forthcoming book called How to Save a Constitutional Democracy.

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.

President Donald Trump’s abrupt firing of FBI Director James Comey prompted two immediate questions: Is the firing legal, and is this a constitutional crisis? But are these even the right questions to pose?

Recent comparative law studies of democratic erosion suggest not. Neither question directs attention to the most potentially significant repercussions of Comey’s termination. President Trump has the legal authority to fire the FBI director, for example, even if he has violated a longstanding norm by doing so during an investigation into the president’s close allies. But illegality is not a necessary or even common characteristic of antidemocratic change.

The terminology of “constitutional crisis” is also unhelpful. Not only is the concept too vague, it also implies a narrative arc — a sharp, dramatic rupture — that democratic decline doesn’t generally have in practice. There are better questions, ones that are both more difficult, and more troubling, that should be posed today.

Democratic decline is a recurrent phenomenon of the early 21st century. My colleague Tom Ginsburg and I recently mined Polity— a database with information about the democratic attributes of countries worldwide — and identified 37 recent instances in which the quality of a nation’s democratic institutions shrank substantially. Examining these comparative cases, which range from Poland and Hungary to Thailand, Egypt, and Turkey, illuminates the institutional mechanisms of democratic decline. It therefore provides guidance for thinking about pathways along which antidemocratic institutional changes might proceed closer to home.

One lesson is that the road away from democracy is rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality by the aggressive exercise of (legal) personnel powers. Often, there are related changes to the designs of institutions, which might be brought about through legislation. Ironically, the law is deployed to undermine legality and the rule of law more generally.

Many recent instances of democratic decline follow that pattern:

• In Hungary, the Fidesz government of Viktor Orbán used a large parliamentary majority to change the composition of the Constitutional Court to create a new National Judicial Office. It also strengthened the prime minister’s control of supervisory bodies such as the Electoral Commission, Budget Commission, Media Board, and Ombudsman offices. Incumbent officials were removed to make way for Fidesz loyalists, who have facilitated the rise of what Orbán calls — intending the description as praise — “illiberal” or “non-liberal” democracy.
• In Poland, the populist Law and Justice (PiS) party, elected in October 2015, began its tenure by selecting five new judges for the Constitutional Court, while refusing to swear in three other judges who had been properly appointed by the previous government. Two months later, the PiS-controlled parliament enacted an amendment to the Constitutional Tribunal Act requiring a two-thirds majority in the court for its decisions to be binding. In the same month, the parliament also enacted a new media law dismissing the boards of all public service broadcasters and vesting the treasury minister with authority to replace them with pro-PiS leadership. That new leadership subsequently purged journalists who were insufficiently enthusiastic about the government’s agenda.
• In Venezuela, the Chávez regime started on the road to what has no become near-explicit autocracy by deploying fully legal tools. In a display of what Amherst political scientist Javier Corrales calls “autocratic legalism,” the chavista legislature has rewritten that country’s constitution, authorized sweeping presidential powers, narrowed broadcasting media’s independence from political control, and created alternative ways of distributing national funds in a way that bypasses the regime’s municipal opponents. It has used its appointment powers to stack putatively independent watchdog institutions, such as the National Election Council, with regime loyalists, who have proved willing to tolerable widespread violence and intimidation during balloting.

These examples, and there are many more, suggest that the legality of a measure is not a good index of its corrosive effect on democratic practices. Rather, as the Princeton political scientist Kim Lane Scheppele has explained, it is more often the case that democracy is dismantled through an opportunistic patchwork of reforms that are legal, and which might even seem innocuous in isolation. Factions, or individual officeholders, steadily tweak the design of governing institutions in ways that insulate them from challenge.

Won’t the presence of good lawyers within the executive branch prevent the strategic deployment of law (and gaps in the law) against legality? If so, it would clearly be premature to worry about the US case. Alas, it is instead striking that many of the new breed of populist autocrats are lawyers by training. This includes Lech Kaczyński (Poland), Viktor Orbán, and Vladimir Putin. All have teams of (often American-trained) lawyers, willing and able to further their entrenchment in power.

Even in near-total autocracies, many of the institutions of democracy survive — in neutered form

But this process is not a quick or obvious one, at least initially. To be sure, democratic decline is studded by what, in retrospect, can be flagged as turning points. But the arc of decline tends to be incremental and slow. Key moments in the process of decline are mundane and technocratic in character. Military coups, for example, were until very recently declining. Although there has been a spate in the past couple of years (including in Thailand and Egypt), it is no longer the autocrat’s instrument of choice.

It is instead more common to see a steady trickle of institutional erosions. What’s more, even highly compromised democracies such as Russia, and now Turkey, maintain a semblance of democratic contestation and electoral process after more than a decade of democratic backsliding. Moving beyond the democratic-autocratic binary, political scientists have resorted to a new category of “competitive authoritarianism” to capture these hybrid cases.

I think that one reason we expect that democracy will end by way of a “crisis” or a sudden turning point is because we are quick to assume that the narrative of political life will track the arc of fictional accounts of political upheaval. Fiction is dominated by dramatic moments of clarification and revelations, victories and defeats. But real life is not like House of Cards.

There need not be sharp inflection points. Indeed, it is worth reflecting on the fact that democracy is not a simple concept, but is instead both elusive and plural in practice. It relies on drams of transparency, legality, impartiality, and constraint. These are promoted by a range of different laws, norms, institutions, and individual loyalties. All of these rarely vanish all at once. Their evaporation is ineffable and easily missed.

Framing the problem as a matter of “constitutional crisis” is not simply an analytic error. It is also likely to mislead and distort debate systematically: It forces those who are concerned about the health of our democratic institutions to pitch those concerns at a perpetually high-pitched tenor. It allows the enablers of democratic decline to caricature their opponents as paranoid “tyrannophobes.”

Putting aside the question of legality and the terminology of crisis, comparative experience suggests that the Comey firing is important for reasons that go beyond its immediate effect on the investigation of ties between Russia and the Trump campaign. Two vectors are important here.

The implications of the Comey firing extend beyond the Russia-Trump investigation

First, the fate of the Russia investigation, as important as it is in its own right, may matter principally because of the signal it sends to FBI employees. Whether it is now expanded (as Comey apparently wished) or wound down will serve as a message to the FBI as an institution of the extent of permissible independence.

Given the contradictions between the ostensible reasons for the firing in the letter from Deputy Attorney General Rod Rosenstein and the president’s later statements, it would require a remarkable degree of tenacity and tone-deafness to miss the signal of disfavor for certain investigations that issued this week. And equally strong signals will likely continue to follow. There is no particular reason to be optimistic, in particular, about the integrity of whoever is nominated to the FBI directorship next. (Consider, indeed, whether a person of high integrity but with a family to support and a reputation to maintain, would even consider the position).

Perhaps an instinctual repulsion against that signal will shape the bureau’s behavior now, leading to a renewed commitment to investigate the Russia matter. But I think this is unlikely to endure. Sen. Susan Collins (R-ME) is far too quick to suggest that Comey’s firing is not consequential because “[T]he President did not fire the entire FBI,” and that current investigations will proceed without deviations.

Historical experience with the autocratic capture of law enforcement bureaucracies provides no grounds at all for such optimism. Over time, the bureau will be worn down. I have no doubt that many FBI agents have the upmost dedication and integrity to their jobs, but they are human, and can only be asked to respond as such.

Second, a captured FBI will have broader effects on the ecology of oversight mechanisms. Given the lapse of Title VI of the Ethics in Government Act in 1999 — which crafted an independent counsel who was appointed and operated outside of presidential control — the mechanisms for investigations of high level government wrongdoing have narrowed to congressional committee inquiries and special prosecutorial appointments. Among the limitations of these, however, are the direct political accountability of federal prosecutors and the lack of a dedicated investigative staff available for political cases (hence Comey’s need to ask for more funds).

But in the absence of skilled and professional investigators with necessary funding and powers of evidentiary compulsion it is hard to imagine that either past or future instances of high-level impropriety will be effectually investigated by any of these mechanisms. Neutering the FBI rules out one important source of such investigative expertise. It is not clear the political will or institutional capacity to create a substitute investigative body exists.

All this should matter regardless of one’s partisan colors. To see this, consider the following thought experiment. Let’s say you have a benign view of President Trump, and are inclined to credit the reasons for the Comey firing supplied by Deputy Attorney General Rosenstein — or you think the president’s decision was justified on other grounds. You should ask yourself what you would think had the partisan valence of the firing been reversed — say, had Comey been fired by a hypothetical President Hillary Clinton for investigating the misuse of a private email server. Or, more to the point, ask yourself what happens the next time around: What happens when a chief executive you don’t trust fires the lawyer running an investigation into whether that chief executive and his allies have violated the law?

Firing Comey can simultaneously be legal, and also a step toward what some have called an “illiberal democracy” — or toward something even worse. Legislators and bureaucrats have the power to slow down such a degradation, but only if they recognize what is happening, and respond.

Aziz Huq is the Frank and Bernice J. Greenberg professor of law at the University of Chicago Law School. He is co-editor of the book Assessing Constitutional Performance. A version of this essay first appeared on Take Care, a blog analyzing legal issues related to the Trump presidency.

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.