Amicus With Dahlia Lithwick | Law, justice, and the courts

Episode: "Lawyers are Tackling our Democracy Problem Via the Take Care Clause"

Date: March 16, 2019

Guest: Ian Bassin, Executive Director, Protect Democracy
Host: Dahlia Lithwick

Episode Overview

This episode addresses the underlying threats to American democracy, with particular attention to the Trump administration’s conduct and the broader global trend away from liberal democracy. Host Dahlia Lithwick and guest Ian Bassin, co-founder and executive director of Protect Democracy, examine the constitutional roots of the president's duties (especially the "Take Care Clause"), warning signs of democratic decline, and the role of litigation (and ordinary citizens) as defenses against autocracy.

Key Discussion Points & Insights

1. The Take Care Clause & Presidential Obligations

• The Take Care Clause: Embedded twice in the Constitution, compelling the president to "take care that the laws be faithfully executed."
  • Ian Bassin (00:05, 10:31, 14:29): Explains how this clause isn't just symbolic: “The central crisis of the Trump presidency is that at root, the president is violating that oath and that central command.”
  • The requirement is "fiduciary"—public officials must act in good faith on behalf of the public, not personal interests.

2. Faith in Democracy – Historical Perspective & Trends

• Loss of faith in democratic institutions predates Trump; trends evident since Watergate and the fall of the Soviet Union.
  • Dahlia Lithwick (05:20): “There's a causation problem here... there’s an antecedent... This didn't start with Donald Trump.”
  • Ian Bassin (05:51): Cites generational disenchantment, especially among younger Americans; “If you try to identify a point in time when American faith and democracy really begins to deviate, it goes back to Watergate.”

3. Global Crisis—Democracy in Decline

• Democracy worldwide has been eroding since around 2005. The US is experiencing similar risks as Poland, Turkey, Hungary, and Venezuela.
  • Bassin (04:07): “If you compare us to Poland, there are signs that we have rougher seas ahead of us unless we figure out how do we restore faith in this as a...government.”

4. The Six Markers of Democratic Erosion

Bassin (19:41)

1. Politicization of Independent Institutions: (e.g., DOJ, FBI, military)
2. Spreading Disinformation: Deliberate confusing of the public.
3. Aggrandizement of Executive Power: Undermining legislatures, courts, and the press.
4. Quashing Dissent (in new ways): Economic or regulatory pressure, not just overt jailing. "Activists are forced to choose between their livelihood or their activism."
5. Delegitimizing Minorities: To claim a mandate, particularly when lacking majority support. “3-4 million brown people voted illegally, and but for them, I would have a mandate.”
6. Corrupting Elections: Not abolishing elections but making them "phony," as observed with leaders like Putin, Erdogan.

Lithwick (19:41): "Talk about those markers, but...has the slide toward authoritarianism worsened or improved?"
Bassin: "I think it has worsened ...they are happening faster under Donald Trump than they did in Turkey under Erdogan or even in Russia under Vladimir Putin."

5. Litigation as a Democratic Defense Mechanism

• Why focus on litigation?
  • Courts are designed as a check when other institutional actors fail.
  • Bassin (26:56): “At a moment right now where you have seen one party...fall completely enraptured into this autocratic movement...the institution in our country that is set up to resist those moments...are the courts.”
  • Litigation serves as "sandbags" against authoritarian drift, not as magic, but as one critical tool among many.
• Case Examples:
  • Arpaio pardon
  • Suits to preserve independent justice and oversight
  • PEN America v. Trump (First Amendment, retaliation against the press)
  • Information Quality Act lawsuit over "cooked" terrorism statistics
  • Suits against state officials overseeing their own elections (Brian Kemp, Rick Scott)

6. The Changing Federal Judiciary & Risks

• Trump's Judicial Appointments:
  • Concerns about long-term impact on the courts.
  • Bassin (31:29): Some are "libertarians and are very suspicious of aggrandized, centralized federal power," which may ironically check Trump.

7. The Threat of Complacency & Citizen Responsibility

• Exhaustion & Numbness:
  • Public overwhelmed by "scandal fatigue."
  • Bassin (50:02): "Work life balance is a professional responsibility ... We are not looking at a series of scandals... It’s one scandal: we have an autocratic president dismantling our system."
  • Important not to expect salvation solely from lawyers or Mueller; citizens must engage.

8. Actions for Ordinary Citizens

• Protecting democracy is a collective responsibility.
  • Bassin (56:26): “If ultimately the American people decide they no longer want a democracy, then we will not be one.”
  • Concrete actions: calling Congress, attending town halls, keeping informed, supporting lawsuits, engaging on social media.

Notable Quotes & Memorable Moments

• On the Take Care Clause:

  • “It codifies the requirement that the President act in good faith on behalf of the public interest.” — Ian Bassin, 10:31
  • “The most jarring thing...was when [Trump] said, I didn’t need to do this [about the border emergency]. I can’t think of a better example of someone admitting to be acting in bad faith.” — Ian Bassin, 17:43

• On Democratic Backsliding:

  • “They’re happening faster under Donald Trump than they did in Turkey under Erdogan or even in Russia under Vladimir Putin.” — Ian Bassin, 19:41

• On Dealing with "Trump Derangement Syndrome" Accusation:

  • “I hope you're right... There are not a lot...seen as goats because they overestimated a threat. There are plenty...because they underestimated one.” — Ian Bassin, 33:26

• On Presidential "Ignorance" as a Defense:

  • “I find that about as comforting as an airline flight attendant getting on the loudspeaker and saying...sorry about the fact that we just bumped into a mountain. The pilot doesn't quite know what he's doing.” — Ian Bassin, 38:10

• On The Role of the Courts:

  • “It’s a moment where courts can come in when Congress doesn’t do what it’s supposed to do and say there’s a fallback check here...” — Ian Bassin, 26:56

• On Complacency:

  • “We're not looking at a series of scandals where there's a new one every day...Instead, we need to look at it as one scandal… we have an autocratic president who is trying to dismantle our system in order to advantage himself…” — Ian Bassin, 50:02

Timestamps for Key Segments

• The Take Care Clause and Trump’s Oath – 00:05, 10:31, 14:29
• Trends in Global Democratic Decline – 04:07 – 05:51
• Six Markers of Erosion – 19:41 – 24:08
• Litigation as Democratic Safeguard – 26:56 – 30:29
• On Trump Judicial Appointments – 31:29
• The Risks of "Trump Derangement" Dismissals – 33:04
• Politicization of Law Enforcement, Comparisons with Russia – 34:53 – 38:36
• Quashing Dissent, What It Looks Like in the US – 39:33
• Searching for Truth and the Information Quality Act Lawsuit – 44:03 – 48:30
• Fighting Burnout and Public Apathy – 50:02
• Quirky and Important Lawsuits – 52:07
• Citizen Action—We the People – 56:26

Summary Takeaways

• The threats to American democracy are real, ongoing, and not solely the result of Trump but part of a larger global decline in liberal democratic norms.
• The Take Care Clause represents a crucial but underappreciated constitutional check on presidential conduct; litigation invoking this (and similar principles) is a key tool for defending democracy.
• Political, civic, and legal engagement by ordinary citizens remains the most important line of defense; litigation alone cannot “save” democracy.
• The importance of viewing current events not as a string of isolated scandals, but as manifestations of a single, systemic crisis requiring vigilance, resilience, and action from all Americans.