← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Lawyers are Tackling our Democracy Problem Via the Take Care Clause
01:00:42
Dahlia Lithwick pans back this week to assess what’s holding and what’s buckling in terms of norms and institutions, two years and change into the Trump presidency. She’s joined by Ian Bassin of Protect Democracy, a new kind of litigation shop looking at global trends toward authoritarianism and trying to resist those trends in the United States.
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- [00:06]
A
There is a legal principle that underpins all of this. It's in the Constitution. Twice the founders charged the president with taking care that the laws be faithfully executed. The central crisis of the Trump presidency is that at root, the president is violating that oath and that central command.
- [00:33]
B
Hi, and welcome to Amicus. I'm Dahlia Lithwick and I cover the courts and the Supreme Court and the law for Slate. And we are two years now and change into the Donald Trump presidency. And this week, we thought we'd take the whole show to do something along the lines of an all purpose general democracy checkup. We talk so often on this show about whether our institutions are holding or buckling. They the FBI, the Justice Department, the courts, the Supreme Court itself. But these questions seem to take a lot for granted. And so instead of talking about the constitutional trees, as we do rightly on this show, we thought we'd pan back and have a look at the whole constitutional forest. What do we mean about institutions? What do we mean about holding? What do we mean about buckling? To do this, we invited Ian Bassen. He served as Associate White house counsel from 2009 to 2011 under President Barack Obama. And after Donald Trump was elected, Ian and Justin Florence and a bunch of other lawyers scrambled to create a new kind of litigation shop called Protect Democracy, of which he is executive director. Protect Democracy has become a kind of fascinating model of cross ideological, cross party organization that uses, among other things, litigation to protect democratic values and norms. The border emergency case we talked about with Stuart Gerson last week, well, that's a Protect Democracy suit. And one of the things they track are underlying threats to democracy. Democracy as measured by six metrics, and whether there is any real objective danger of sliding into authoritarianism. So two years in, we wondered if threats to the media, for instance, threats to the courts, can be evaluated in any kind of aggregated way. Is it time for worry? Are the institutions doing their jobs? That's a lot of stuff to talk about, but there's no one better situated do it so. So, Ian Bassin, welcome to Amicus.
- [02:29]
A
Thank you for having me.
- [02:31]
B
Did I more or less get the brief correct?
- [02:33]
A
Yeah, I think that really did get it correct, except one thing I would add to it, which is Protect Democracy started by trying to hold the line on democratic norms, institutions. And litigation is a very good tactic for doing that, because if you can get a court to say, don't do that, that's really strong medicine. But we also need to be looking ahead because as many people have said, Donald Trump is symptom, not cause, of a global trend away from liberal democracy. And even if he goes away in 2021, the problem of the challenges facing liberal democracy will not. And so the other thing that Protect Democracy is doing now is beginning to lay out an agenda for how do we strengthen our democracy for the next generation. What do the 2020 candidates need to do to make sure that if any of them are elected Republican challenger or Democrat, they are using the crisis we're facing now as an opportunity to renew our democracy?
- [03:25]
B
One of the things that you all have said is this is not unique to America. You are noticing worldwide trends and you talk about that a lot. And it didn't start in 2016, and folks were losing confidence in democratic institutions long before Trump came along. And in fact, one of the reasons they voted for Trump is because they were losing confidence in democratic institutions, institutions. And now you're saying at the other end, it may not end in 2020, it may not end in 2024. This is really a long range problem and a global problem. And the idea that someday you're going to be out of a job because it will all have been fixed. Well, maybe we hope, but this is kind of perpetual vigilance that we should have been more careful about long before 2016. Right?
- [04:08]
A
Yeah. I mean, Freedom House, which has been studying democracies around the world since the end of World War II, they put out a report every year called the Freedom in the World Report that rates the strength of democr how many countries are democratic. And what they found was that in the latter half of the 20th century, democracy spread to more countries and improved generally in the countries they were in, in an upward trajectory until around 2005. And then you see that go into reverse. The same thing has happened here in the United States. And if we want to understand the dangers we may face going forward. Yasha Monk, another Slate podcaster who is now a Protect Democracy senior advisor, has done some research that shows that young people in America, people under 30, are actually the least committed to democracy as a form of government than any age bracket of Americans. And in fact, they're so uncommitted to democracy that one in four people under 30 in the United States don't view democracy as an extensionary form of government. In Poland, before the Law and Justice Party rose, that number was only one in six. So 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, as Churchill said, worst form of government, except for all the other ones.
- [05:21]
B
There's a causation problem here. Right. Because part of it, we want to say the cause of that is because we now are in an era where democracy is being pummeled, right in the news. It's being pummeled by the President. Why would any person under 30 believe in democracy? But what you're saying is, no, there's an antecedent. This didn't start with Donald Trump saying fake news. This didn't start with Donald Trump going after the ideas of checks and balances. So what starts it?
- [05:51]
A
Yeah, I think if you try to identify a point in time when American faith and democracy really begins to deviate, it goes back to Watergate. Right. Which it took 10 years after Watergate before you start to see any rebound in Americans faith in our governing system. The other factor I think here though is for most of the 20th century, democracy had a foil, right? We had the Soviet empire as a counterpoint. And if you were white in post war America, you were looking at doing better than your parents did, pretty much generally true. That's true in most of Western Europe, if you were white. For non white Americans, we've never had a functional democracy. But then the Soviet Union falls and all of a sudden there's not really a counterpoint for a while and you start to see younger Americans no longer feel guaranteed to do better than parents. For the millennial generation, their founding memories are around the towers falling and Americans heads getting cut off on YouTube and the American Congress almost defaulting on the debt ceiling and bankrupting the United States through no fault other than its own incompetence. If that's your introduction to democracy, it's no wonder that you might question is this really the form of government that's going to deliver for me and my generation?
- [07:05]
B
The incredibly dispiriting thing that you just said is for the cohort of Americans who lose confidence in democracy over Watergate. Watergate is not just a moment of great shameful self dealing and grift and corruption. It's also a moment in which that is checked. Right? It is checked by the courts and eventually checked by Congress. So I feel like I'm worried because you're leading us into a place where we're gonna have to say that same cynicism, right? The cynicism that it's all broken and the entity that fixes it, that checks it is part of the, I think is what you're saying, or at least is viewed as part of the problem. How do you ever unbury from this, Are we going to have a post Trumpian reckoning that says at its very best, this was checked in the courts by Protect Democracy and that's why government sucks?
- [07:57]
A
Well, I think there's two things we're gonna have to do. One is there's gonna have to be a moment of renewal that comes after this to really restore faith in the system, which means we can't just take this crisis of the Trump presidency and the threat to democracy and try to get back to status quo. That won't work. That won't convince people that this is a viable system of government. We actually have to try to do the work of using this moment to do better than we were doing before. We're going to have to do some pretty bold things post the Trump era if we're going to get out of the hole that the Trump era is going to put us in. But the other thing that we're beginning to think about at Protect Democracy is there's a longer term third phase to this. You mentioned earlier, if we're entering an era in which automation is going to take even more and more of American labor and change, unless we have a response to the Donald Trumps and Marine le pens of the world who are going to say to people who are on the front lines of being displaced, let me take you back to an era in which you had prime of place and you were front and center. Unless we have a compelling response to that, we're constantly going to be on our heels defending the liberal democratic system. And so we're going to have to have longer term visions about maybe there are other forms of government, other ways to sort of adjust liberal democracy for the 21st century. They're going to account for the fact that we're going through really a not just generational, almost millennial shift in how society organizes itself that's on par with the Industrial Revolution. And maybe different forms of government are what are going to be needed to give people a proper voice in that. And what forms would we be comfortable with that really hold the values that we would want to bequeath to the next generation?
- [09:37]
B
So I like that you mentioned values, because one of the first words I ever heard come out of your mouth was norms. And I think part of your job in the Obama administration, when you were a lawyer there was thinking about norms and values and these sort of soft, undergirding principles that weren't necessarily law qua law. You know, my answer to every question for the past three years has been not every question like what's for dinner? But like many questions has been to fling my arms up and say norms. Like, yeah, you think that blue slips, or you think that the filibuster. You think that seating Merrick Garland or whatever, you think norms. It was never a rule, and that's the answer to everything. You started thinking about this before I did. Tell me how you got from the place where you were thinking about that as your job to the place where you were thinking of that in the law firm of the Resistance.
- [10:31]
A
So I really love that you just connected norms to values. There's a lot of messaging research out there that tells us, don't use the word norms. Nobody likes the word norms. It's this weird, esoteric word nobody really attaches to it. But values really is what it is about. So when I was in the White House, President Obama understood that we were confronting a crisis of faith in government, faith in American democracy. And so one of the charges that he gave us was, I want to make sure that everyone in this administration knows that our first order of business is to be ethical, perform this public trust on behalf of the public, and convince the American public that we are working on their behalf. Because if you believe, as I did, and I think sort of the Obama administration did, that government can be an agency of human welfare. You cannot turn it into that. You cannot actually convince a public to allow you to do that unless they believe you're working on their behalf. And so I briefed every. Almost every political appointee for the first three years of the administration. For White House appointees, I would go around to every office in the White House every six months when they started, and then to renew. And then for appointees and the other agencies, we would convene giant meetings in the Ronald Reagan Building in D.C. you'd have 5, 500 appointees. I think we did it probably like once a quarter. And I would get up there and what I would say to all of them is, whatever you came into government to do, whether it is to work on tax policy or national security or climate or health, your first mandate is to convince the public you're working on their behalf and to honor that public service is a public trust. Because if you don't do that, then the whole game is up. And then, of course, I went through the norms and the rules, those that are legal and those that are not legal, that had been put in place over time to guide people in how to do that. But they all sit on top of a value, which is if you were to have a representative government. If you're going to bequeath your power to someone else to operationalize it on your behalf, you have to trust that they're going to do it on your behalf. And I think what was startling to me and caused Justin and I and others to think about forming Protect Democracy was what if you have either a political leader or a movement that fundamentally doesn't see that as a core value of being a public official? I wrote a piece in the Washington Post earlier this year when it was reported that the White House was issuing non disclosure agreements to staff trying to explain that the problem with that was that the President and the White House didn't seem to understand that public service was a public trust. Interestingly, George Conway, of all people, got some attention for retweeting an article that said the President doesn't believe that he is a public servant serving the public. And I think there is a legal principle that underpins all of this. It's in the Constitution. Our founders put it there. It's in the Constitution. Twice the founders charged the President with taking care that the laws be faithfully executed. It's in the Take Care clause and it's in the oath that they require the President to take. And what that clause does is it codifies the requirement that the President act in good faith on behalf of the public interest. And I think the central crisis of the Trump presidency, and it ties to every scandal that has been reported on, is that at root, the President is violating that oath and that central command.
- [13:57]
B
And I love that you invoke it because it's in the lawsuit that Stuart Gerson and I talked about. Right. It's one of the arguments that is made in that lawsuit and that's a protect democracy lawsuit. But I think an awful lot of folks read the Take Care Clause as kind of like a nice potted ficus in the Constitution. You know, here's some nice language. It's got no real force, it's got no real sort of doctrinal meat on it. And so good for you, Ian, for drawing it all under that umbrella. But nobody knows what that means.
- [14:30]
A
Well, I think the most important, perhaps the most important law review article, to the extent that we have important law review articles that come out during an era, is one that's going to come out this summer in the Harvard Law Review by Jed Sugarman, Ethan Leib and Andrew, which goes back and traces the history of the Take Care Clause from the American founding all the way back to the English glorious revolution and how this idea of taking an oath to faithfully do something had all sorts of antecedents, not just in the law, but in private professional obligations that are undertaken by private lawyers or other sorts of private professionals who take what essentially is a fiduciary oath or fiduciary obligation to act in good faith on someone else's behalf. And they go back and trace that that really is the underpinning of the Take Care Clause, and suggest that the founders did not mean it to be a potted ficus, if anything, because it's actually in the Constitution. Twice they meant to give it important meaning, that it was the central agreement that we the people were making with a representative government, which was, we are only giving you power if you exercise it in good faith on our behalf. And therefore it does impose a fiduciary requirement on the President. It has not really been litigated in the courts much at all. Interestingly, in 2016, in the Texas lawsuit against DAPA, against President Obama, when the Supreme Court took that case, after they took the case, they issued an order to the parties in that case, after they'd already established what questions they were planning to look at in that case. And the order had one request of the parties in it, which was for the parties to briefly whether the issue there, DAPA was governed at all by the Take Care Clause. The court ended up summarily affirming and did not take up the question. But it was interesting that the court thought there was something for the court to potentially look at in the Take Care Clause. And so, yes, we've put it in our challenge to the President's emergency declaration, because we think it is not just important for the courts to step in here and look at, but important for all of us to look at the myriad ways in which this requirement, this obligation on the president is at issue in so many of the things that are troubling about the Trump era. And we can talk about a lot of them, from the questions that Gerald Nadler and the House Judiciary Committee are asking, to the reports of whether pardons were being dangled to try to protect the President's interest, going even to the question of whether the President has not performed his obligations under the Magnitsky act in response to the Jamal Khashoggi killing, because perhaps he has some personal vested interests financially with the Kingdom of Saudi Arabia. All of these at root tie back to, is the President acting in the best interest of the American people, or does he have some other personal ulterior motivations that are driving his decision making?
- [17:19]
B
We talked about the emergency Declaration lawsuit last show. What does the take care claim look like? Does it just say, in effect what you just said, The President has an obligation to act as a fiduciary. And getting up and saying, I don't care what Congress says, if they're not giving me the money, it's an emergency. Violates that. Is that, I mean, is there an actual lane here that is the take care lane that we should understand?
- [17:44]
A
Well, I think the most important functional word in both the Take Care clause and the oath that the President takes is faithfully take care that the laws be faithfully executed. So as we know, the founders were very careful about the words they included, and each word is supposed to be given a meaning. So the first question we have to ask is, what is the word faithfully doing there? What does that word mean? Another law professor, David Posen, has another law review article on constitutional bad faith in the Harvard Law Review, where he talks also about the fact that it is essentially an obligation of good faith. I think we all basically know common sense, what good faith means, which means I'm doing something in good faith for the reasons that I say that I'm doing them. So let's go to the Rose Garden speech where the President announced the emergency declaration. Right. The most jarring thing, probably among many jarring things that were said in that speech, but the most jarring thing to those of us who were preparing to litigate against this was when he said, I didn't need to do this. Right. What does that mean? I'm doing this even though I know and I'm openly admitting I don't need to do this. I can't think of a better example of someone admitting to be acting in bad faith. Right. And so the take Care clause claim that we're bringing in our challenge, the emergency declaration, is that the President admitted, I wasn't acting in good faith.
- [19:00]
B
Just around this time time last year, Protect Democracy partnered with Stand Up Ideas. You did a kind of State of the Republic, a big assessment. And you claimed at the time, same thing that you said here, you know, look, democracy has been in decline around the world, in this country, even prior to 2016. And then you use these six markers to assess kind of the erosion of norms and the erosion of basic democratic ideals. And I want to talk about those markers, but I want to know, when you issued that report to today in the aggregate, has the slide toward authoritarianism in your mind worsened or improved?
- [19:41]
A
I think it has worsened. And here's why. I don't think all is lost. I Don't want to be too Pollyanna ish about it, but I think it has worsened and here's why. So what we did when we formed the organization was we went and we spoke to the scholars who have been studying the decline of democracies around the world, all of whom now have, I think they even have some regret about the fact that they've become best selling authors. Because this sort of unfortunate specialty area that they focused on for the last 30 some odd years for some of them has become so central to modern American life. And we went to all of them and said, so you've studied Hungary or Poland or Turkey or Venezuela. What does this look like? What is essentially the blueprint of how these autocratic leaders or autocratic movements dismantle democracy? And they all have their own fr. And we took them all in and said, well, if we can kind of synthesize what you're all telling us, it's essentially that we should expect six things to happen. One, that this executive will try to politicize independent institutions like law enforcement, civil service, the military. Obviously we're seeing plenty of that in terms of attacks on the FBI, Department of Justice, et cetera. Two, that the government will try to deliberately spread disinformation to confuse the public so that they cannot hold the government accountable. Three, that the executive will try to aggrandize power in the hands of the executive executive and undercut the institutions that should perform a checking role, like legislatures or so called judges or the private sector or the enemy of the people press. Four, that these executives will try to quash dissent and do it in rather new ways than the ones that we have traditionally thought of. When we think of things like government censorship, where the government simply says, we're seizing this printing press, you cannot say that. What these modern autocratic leaders in places like Bahrain or Egypt will do is when an activist speaks out against Fatah Al Sisi, the government will work behind the scenes to cut off that activist's financial standing. You know, so if that person's in business, maybe they'll slow the shipments down at the ports. Maybe they'll go to customers and say, you don't want to shop there anymore. Until the activist is forced to choose between their livelihood or their activism. And a lot of people understandably choose to put food on their family's table. Think about the report just recently by Jane Mayer in the New Yorker that the President was ordering Gary Cohn to make sure that his Department of justice prosecuted the AT&T time Warner merger because he didn't like what CNN was saying or fact, the President has told his Postmaster General to raise rates on Amazon, which the Postmaster General has since recommended doing in order to punish Amazon owner Jeff Bezos Editorial outlet, the Washington Post. I should say he owns it. The Washington Post editors have been very specific. He has not intervened in their editorial coverage. These are the tools that these modern autocrats use to try to suppress speech. We actually have a lawsuit on behalf of PEN America in the Southern District of New York, where we've sued the President for these actions as violations of the First Amendment. Fifth. These modern autocrats will try to delegitimize vulnerable minority populations. And there's been a lot written on this. And the reason they do this is often they come to power with only plurality support, not majority support. And then how do you claim a mandate to govern? So I don't know if you happen to have lost the popular vote by 3 million votes, perhaps you come into office and say 3 to 4 million brown people voted illegally and but for them, I would have a mandate. And then last but not least, these modern autocrats, corrupt elections. Unlike their 20th century brethren, they don't pass an enabling act and abolish democracy overnight. No. If you look around the world over the last 10 years, Sisi, Maduro, Putin, Erdogan, they've all won elections, but not really. These are phony elections. And so what we're seeing, and this was true in the first year and it's been just as true in the second year, every one of these things, and you heard, as I was talking about, every one of these things is happening, and they're happening faster under Donald Trump than they did in Turkey under Erdogan or even in Russia under Vladimir Putin. Right. If you think back to the beginning of both of Putin and Erdogan's times in office, people thought they were going to be Western reformers. Putin was going to carry on Yeltsin's democratic reforms. Erdogan was going to bring Turkey into the EU and prove that you could have an Islamic Democratic Republic. And it was four, five, six years before people started to wake up and say, wait a minute, this doesn't look good with Donald Trump. It's happened in two years.
- [23:54]
B
When you say happening faster, and how are you measuring that happening faster in the compressed amount of time in which all of these things are happening or, or the number of fronts in which, you know, election suppression, suppression of dissent are happening?
- [24:09]
A
First, all of these things are happening. I think when we formed the organization, we anticipated some of these Things might happen and they would happen over some period of time and we would be able to scale up slowly and try to confront them. And we saw them all and multiple instances of all of them happen right off the bat. We also have a professor at George Washington University, Michael Miller, who has put together something called the Authoritarian Warning Survey, which is hosted on our website protectdemocracy.org, which every day does a daily tracking poll of about 200 political scientists around the country. And what it's tracking is how severe is the threat, what is the likelihood that we would actually descend past a point where you could no longer really call us a functional democracy. And if you look at that daily tracking poll over the last two years, it continues and continues to tick upwards. This does not mean that all is lost. I think the system has largely held in a lot of ways. You're seeing pushback on a number of fronts. But the way I think about it is it's as if we're basically sitting in a small little shack somewhere on the Kansas plains and the winds are buffeting the walls and the storm, the tornado's hitting us, but the walls are holding, right? The walls are holding. But if you were sitting in that shack, you wouldn't just sit there in your rocking chair and sip your tea as the tornado is barreling down on you. You would go get the sandbags, you'd go get the duct tape, you'd board up the windows. And I think when you have someone testifying, testifying that I know the president incredibly well and the reason I'm testifying here today is cuz I worry if he loses in 2020, there will not be a peaceful transfer of power. Of course I'm referring to Michael Cohen's testimony. If that's what someone's saying, you better get the sandbags.
- [25:43]
B
So this is where I think you need to explain why litigation. Because there are a lot of groups who are fighting, I think the same impulses and the same trends. You're doing it in the courts. You know, one of the first times I interviewed you was the Arpaio pardon lawsuit. Because that was a big ticket thing that you were spearheading. And I remember being like, why do you care? Like it seems fairly trivial. Yes, we're all horrified. And this is an affront to, you know, every norm that you've described. And also I think accruing power to the President and a dis of the judiciary, all that notwithstanding, really, you're gonna fight something that happened that was nuts. And this is me Telling you, you told me. So your answer to me at the time was this is the kind of litigation that has to be the kind of sandbags you've just described. So I think I want you to explain some of the suits that you filed are kind of counterintuitive, I think. And reporters like me are sort of like, huh, that's the one where. That's the Hill we're going to die on. But they seem to be sort of, if you look at them as a mass doing this thing, that is quite different even from what other litigation shops are doing, but certainly from what other groups are doing. So can you explain the sort of theory of litigation?
- [26:56]
A
Yeah, I think so. Yascha Munk, I mentioned earlier, who works with us, has written in his book the People vs. Democracy about what we're really witnessing right now is kind of a separating of the terms liberal and democracy. You have this populist movement of people saying, we want just direct democracy, just majoritarian will on everything. But of course, that's not what the term liberal democracy refers to. The term liberal democracy, and of course I mean liberal in the sort of classical Western sense, not the American political left sense. Liberal democracy is a combination of majority will and certain rights and structures that guarantee protections for minorities or ensure that the majority will doesn't drive the country off of a cliff. And at a moment right now where you have seen one party, the American Republican Party, fall completely enraptured into this autocratic movement by the threat of primary challenges and sort of the gerrymandered districts that make it so that they have to respond to a very extreme base. And so in some sense, shame on Paul Ryan. But in some sense Paul Ryan's being responsive to his narrow electorate. Right? He's being responsive to the democratic side of liberal democracy. But of course, liberal democracy has another side, which is there are structures, there are rights, there are ways that constrain our country. When Paul Ryan is being pulled in a direction that doesn't make sense for the country for corrupted reasons that don't really reflect the overall will of the American people over time, the institution in our country that is set up to resist those moments and protect the structure that has kept us in improving democracy over 240 years are the courts and people ask me, are you confident that you can have a litigation based strategy? And I should be careful to say litigation is only one of the tools we use. We have a lot of other tools. We do a lot of work in both the states and the federal level with legislators and oversight and other things. But people have people ask me, are you sure that litigation is a strategic tool given the bent of the Supreme Court? My answer is John Roberts is an institutionalist. And a couple things that distinguish John Roberts at this moment from Paul Ryan, among others. John Roberts doesn't have to run for election every two years. That was something the founders put in there on purpose. So I actually think at a moment like this where you're seeing these abuses of things like the pardon power you mentioned, the Arpaio kill case, it's actually 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 to make sure that we don't decline into a more authoritarian form of government. And one of the reasons we formed the organization is because some of those cases, as you note, may not be the obvious ones that people are going to bring. And we thought having an organization that is exclusively and holistically focused from its inception on the threat of authoritarianism coming to the United States, which we started saying the minute this president was elected, and really knowing that's the threat, thinking about what sorts of cases might you conceive of, if that is your framework and that is what you're worried about. And I don't think that's the framework that a lot of wonderful traditional groups that do litigating think about. And that's what we thought we would bring to the space. And I think it has ended up with us having a lot of cases that seemed odd when we first filed them, but are are proving as the First Amendment case we brought, that I mentioned earlier, is an example of that the more facts come out, these cases may actually be important linchpins in protecting us from really, really bad decline.
- [30:29]
B
We know that you value the journalism here at Slate, and now more than ever, this work needs your support. And the very best way to support our work is through our membership program, Slate Plus. And with a Slate plus membership, you can enjoy this and all of Slate Slates podcasts ad free. Plus you'll have access to exclusive bonus content from some of your very favorite Slate shows. There's a free trial to be found@slateplus.com amicus and now let's return to our conversation with Ian Bassin of the Protect Democracy Legal Project. You can have a separate conversation about Trump packing the judiciary and that I think as of this recording, a sixth of the sitting federal judges, maybe more, were creeping up to a few circuit courts. Yeah, in the circuit courts, courts will be Trump nominees. What's the response to the argument that you're kind of betting on an institution performing its institutional checking function as that institution is changing right before your very eyes?
- [31:30]
A
The judges that are being appointed by President Trump. So you and I are fairly progressive, liberal legal thinkers. They're not the judges that I would want in the courts. I have a lot of problems with a lot of these judges. Judges, but they're also not judges that are cut in the Trump mold. They're cut in the Federalist Society mold very much. Some of those, I think, are probably going to be very bad on some of these fronts. And I think some of them have said things that sound like awkward pledges of allegiance to Donald Trump. That's deeply problematic. And I want to be very clear. One of the tools that autocrats have used around the world, Poland and Hungary being examples, are trying to pack the courts with people that will protect a autocratic executive. And my guess is there's probably some judges in this batch that are like that. But otherwise, others, including some of the nominees that President Trump put on the 5th Circuit, where we filed our emergency declaration case, are libertarians and are very suspicious of aggrandized, centralized federal power. One of the things the president said when he made his emergency proclamation is, oh, they're going to run to the 9th Circuit and they'll get a good decision. You know, we think what he did is so obviously unconstitutional that the Fifth Circuit's going to agree. And we decided not to run to the 9th Circuit. We went to the 5th, because I think some of his judges are going to surprise him. Him and say, we didn't spend a career in the law to get on the court, to give the federal executive plenary powers to do everything and essentially establish himself as a monarch.
- [32:48]
B
What's the answer to you hit the ground saying that Trump is different from what Jeb Bush would have been or Mitt Romney would have been. And then you decided everything he does is this crazy authoritarian thing. This is on you.
- [33:05]
A
You.
- [33:05]
B
Because your framing has been incorrect. And I get that a lot. Every piece that I write about the First Amendment or about attacks on independent judiciaries are met with, you just have Trump derangement syndrome. How do you, in your head, think about what you would be doing right now if Mitt Romney were the president? Would you be doing this?
- [33:27]
A
I wouldn't. But first, I want to say to those people who accuse me and people like me of having Trump derangements in syndrome, I hope you're right. I really hope you're right, because I would love nothing more than to look back on this period in history and say, boy, did I overestimate the threat. Because I'll tell you, if you look back at history, there are not a lot of goats in history who are seen as goats because they overestimated a threat. There are plenty. Neville Chamberlain. There are plenty who are seen as goats because they underestimated one. And I think the gravest mistake we can make as keepers of, of the we the People flame that the founders handed us was to underestimate a challenge to the existential nature of our republic. And I am not going to spend my time here underestimating that threat when it is so obviously before our eyes in the person of Donald Trump and the global movement that he represents.
- [34:17]
B
I don't think we're going to get through all of your six markers that you laid out, although I think as a way to organize what you're doing, I think it's incredibly helpful. But I want to winnow in, if we can, on your very first one, which is politicize independent institutions like the civil service, like law enforcement, the military, and give me some sense of what sort of beyond politicizing the Justice Department, which we've seen beyond, I think, turning the border emergency into a fight about the role of the military in civilian border affairs. Can you give me some sense of how that maps onto what we see around the world? That worries you?
- [34:54]
A
A couple years ago, I was at a corruption conference, and someone introduced me to a corruption blogger from Russia named Alexei Navalny. And he told me a little bit about what he was doing. And I said, boy, you're going to get in trouble soon. And later on, of course, he was prosecuted by Vladimir Putin's chief prosecutor, whose job was to prosecute opponents of Vladimir Putin. And, of course, Alexei Navalny was then jailed for a time. He was prevented from running against Putin, because what Putin has done in Russia is he's turned law enforcement simply into a tool of himself. It prosecutes opponents. It protects allies. That is not the way law enforcement is supposed to work. When I was in the White House, we had a policy, and it wasn't just us. We inherited it from the Bush White House, and they inherited it from Clinton. It goes all the way back, actually, to Benjamin Civility under Jimmy Carter, who, in the wake, sort of the aftermath of Watergate, decided that there should be a set of rules that govern when White House staff can talk to people at the Department of Justice, because you. You don't Want, for example, an Anthony Scaramucci saying, well, I called my friends at the FBI to investigate Reince Priebus because I think he leaked something about me. No, no, no, no, no, you don't want that. That's the way it looks in places like Russia. And so we had this policy in the Obama White House that made it very clear that White House staff don't call Department of Justice without going through certain channels in certain ways. And one of the things that we were most concerned about when we started Protect Democracy was, is this administration even going to inter such a policy? Are they going to abide by it? So literally, the first thing we did as an organization was we wrote up a memo on the history of those rules for the purpose of educating the media and the Hill to this fairly arcane, esoteric set of policies, and then tried to use the Hill and the media to pressure the White House to issue such a policy. And working with some reporters at Politico, we got the White House not only to issue it, I don't know if they issued it in response to us, but they certainly made it public in response to us. Don McGahn did do a memo on this, and then that, of course, laid the pride of it for the media and the Hill saying, wait a minute, you're violating your own rules in these conversations that Reince Priebus is having with Andy McCabe. So I think in some sense, that was prescient. It laid the groundwork for people understanding why the President's meetings with Jim Comey were so problematic. On the other hand, I don't think we anticipated just how egregiously the President would try to turn the Department of Justice into a loyal pawn of his own interest, as opposed to an independent institution for implementing the the law.
- [37:22]
B
And more and more, am I right to say that more and more, what you hear from Rudy Giuliani in response to every time the president sort of tries to turn the Justice Department into his own personal gunslingers, you hear this answer. That is some iteration of, well, he just doesn't understand. He's not from this culture. And so when he says to Jim Comey, like, hey, I want you to go easy on this guy. He's not doing it in order to shatter norms or in order to violate immutable rules about contacts with the Justice Department. He just doesn't know what's going on. And it's a weirdly charming defense. I mean, I think for a lot of people that wanted Donald Trump because there's no rules, and he's an outsider and, like, why be constrained? He's not constrained by those things because he didn't understand them.
- [38:10]
A
I find that about as comforting as an airline flight attendant getting on the loudspeaker and saying to all of us sitting in the back of the plane, sorry about the fact that we just bumped into a mountain. The pilot doesn't quite know what he's doing. He's just fiddling with the controls up here. It's not his fault.
- [38:26]
B
And moreover, it's not a defense. We know that when he said, comey, be alone with me in the room, he must have known that there was some norm he was violating. So it's not black and white that he simply doesn't know what's going on.
- [38:37]
A
And here's the most damning, I think, accumulation of evidence against that defense offered by Rudy Giuliana Giuliani. The lies, the extreme efforts to obscure and hide the things that have gone on. So one of the other cases that we filed, a case called Cockrum v. Trump Campaign, is a case that accuses the Trump campaign of conspiring with Russia to interfere in the 2016 election and injure our clients, who are individual Americans, who had their personal information dumped online as part of the WikiLeaks dump of hacked DNC emails, things like their Social Security numbers, et cetera. And in that case, what we lay out is that some of the strongest evidence that there was a conspiracy is the extreme lengths that so many people in Trump's orbit went to hide their contacts with Russia. So when Rudy Giuliani says, well, the president didn't know what he was doing was wrong, then why did he go to such lengths to hide it? I think that is the big question the American people need to ask.
- [39:34]
B
Talk a little bit about your fourth marker, the questioning of dissent, because you mention it doesn't look like what we think it looks like. And you talked about what it looks like around the world. What does it look like when you're measuring it, the quashing of dissent in America? Is it. I mean, there are certainly alarming reports about the names of protesters being collected, the names of journalists being collected. Tell me what's in that bucket in your mind that we should be mindful of? Because we're just not seeing a lot of journalists jailed. We're not seeing a lot of protesters jailed.
- [40:03]
A
Well, I think one of the hardest things about keeping us all on guard against these threats is in our perfect imaginations and the way stories are told, the materialization of one of these threats is obvious and slaps you in the face. Right. You reference the notion that, well, we're not seeing journalists jailed. That's true. That does not mean, however, that the President isn't doing things that over time are going to and have been shown in other countries to deeply injure the free marketplace of ideas that our First Amendment was designed to protect. So, for example, for example, in our lawsuit, Pan America v. Trump, what we lay out is a series of actions the President has taken to design and we say intentionally designed to suggest to writers and editors, and especially the business owners of media outlets, that if you are critical of him and you say things he doesn't like, he is going to make you pay in your bottom line. So what sorts of stuff do we lay out in that suit? So, first, I mentioned earlier, earlier, the President trying to get his Department of Justice to block the AT&T Time Warner merger as punishment to CNN, the president getting his Postmaster General to raise shipping rates on Amazon, the President directing his White House press corps staff to yank the press passes and block access to reporters who ask questions that he doesn't like. And I should say we filed that case before Jim Acosta's press pass was taken. I would like to think I don't have proof of this. I would like to think that part of the benefit of us being out there kind of at the tip of the spear filing these cases, as you mentioned, that may not be the obvious ones to file, is it helps to sort of clear the way for others who might not have jumped into that breach to file such a case. And CNN did file a lawsuit there. And I think the positive response our lawsuit got, especially from First Amendment scholars, people like Jeff Stone who spoke in favor of it, Sonia west, who spoke in favor of it, really made it clear that you would have a warm reception among constitutional scholars and the media in filing a claim like that. And what the Pan American case argues is that the accumulation of these regulatory acts by the President were very clear to distinguish. The President has First Amendment rights, too. He can scream enemy the people. It's terrible that he does it, but he can scream enemy people. He can scream fake news. He can criticize journalists. Politicians since the beginning of time have criticized journalists. That is not a First Amendment violation. But when you use the levers of government power to punish speakers you do not like, that is a violation of the First Amendment. And it's not just a violation of the rights of the Washington Post or CNN or Amazon or the people you're trying to silence. It actually hangs a Sword of Damocles over every writer and journalist. Some have responded bravely and we've seen sort of a golden age of investigative journalism. You have the Washington Post and the New York Times competing with each other of who's gonna get the best investigative scoop. But it has an effect on not just some more, perhaps vulnerable outlets and journalists. You know, if you're an undocumented writer or even you're a green card holder writer, are you going to be as comfortable saying something critical when you know that that could interfere with your ability to get your green card renewed? If you're. Randall Stephenson, the chief executive officer of AT&T, Nick Kristof had a piece in the New York Times recently talking about how well things are holding. Because, you know, the President tried to block the merger, but the courts didn't block it. But do you know how much money, money and time it cost at and T& Time Warner to go through that fight? If you are the CEO of one of those companies and you don't think, well, could I just give Jeff Zucker, the head of cnn, a different title? And maybe the President will go a little easier on us and maybe my shareholders will be happier. If you're Jeff Bezos and you don't think at some point the president knocked 55 billion off Amazon's market cap with a few tweets, is there something I can do to please him, to protect my shareholders interests? If you're not thinking that you're probably not a very good CEO, I hope you won't do it. But if you don't think that has an effect, I think that's naive of us. It has an effect. It has overseas.
- [44:03]
B
A word I think you have not yet used in this podcast is truth. And one other aim of your lawsuits, as I see them unspooling, is to get at truth. That's right. I think part of the purpose of the emoluments litigation is to get at. At discovery, to get at actual documentary evidence. But you filed suits about. No, you said this about people coming across the border and doing crimes. You have filed FOIA requests. You've done a lot of work, I think, to bolster the idea that some things are just true and they are immutably true, regardless of what the President says. And maybe this is the journalist in me talking, because the part of me that really is anxious, this is not just the erosion of norms and institutions, but the erosions of the very idea that truth is knowable. Can you talk a little bit about that piece of what you're tilting at because I think it's a little bit incoate, Ian. But I think it's also extremely important. Maybe as important as the sort of hard fences you're describing in some of the other suits.
- [45:08]
A
I'm really glad you asked this, because I feel like when I, when I talk on podcasts and other places, sometimes people come away and say, wow, that was really depressing. Right? Cause I have all of these kind of Four Horsemen of the Apocalypse sorts of anecdotes. But the thing about this aspect of Protect Democracy's work is I think there's something a little bit hopeful and optimistic about it, because if you're one of those people listening to this, and I know I've heard this many times, who thinks he does all this stuff and there's no consequence. Is there ever any consequence? This is a set of. This is an area where there are consequences. So, for example, when the President issued the Muslim band, he also claimed that one of the reasons he was doing it was because his Department of Justice had told him that terrorism in the United States is predominantly committed by the foreign born. And so we've got to keep them out. When he did that, Benjamin Wittes and some of the folks over at lafayer said there's no way the Department of Justice told him that, because I know it's not true. I've seen the data. And so this was the first of many cases we did with Ben Wittis where he said, I want a foia. I want to file a Freedom of Information act request the Department of Justice for the data the President was referencing and for their communication, transmitting it to him, expecting. And in fact, I think he wrote a piece on it, calling it the friendliest lawsuit ever filed against the Department of Justice. That DOJ would say, we never told him that it's not true. And in fact, that was the response to the foia. The president then doubles down and in his Muslim ban order tells the Department of Justice and the Department of Homeland Security, give me a report showing that the foreign born predominantly are the cause of domestic terrorism. So the Department of Justice and Department of Homeland Security follow the order given by the President and cook up a bunch of data claiming that immigrants are the predominant cause of domestic terrorism. That report. Let's just stop for a minute and talk about how scary that report is. If you look back in the annals of history about government, governments issuing propaganda to stir up fear against vulnerable populations by making false and misleading claims against them, we can think about some of the worst instances of horrific human rights violations in history. This was something that happened. That is a very scary report that our government issued. So we jumped into action, and someone on our team pointed out that there's actually a statute called the Information Quality Act. Lo and behold, there's a statute for everything.
- [47:32]
B
It's like the take care of clause.
- [47:34]
A
It's the take care clause for truth. And what the Information Quality act essentially requires is if the federal government is going to put out statistics and data, it's got to adhere to some basic good practices on methodology. And if it doesn't, you can actually say to the government, hey, we think you kind of screwed up your methodology here. What do you have to say for yourself? And so we filed a letter first with the Office of Management and Budget and then filed a lawsuit saying, hey, your data's messed up here. You're violating the Information Quality Act. And. And just before the New year, the Department of Justice admitted that we were right and that the report was actually littered with errors. And then, amazingly, they said, but we're not gonna correct it or retract it. So we are in court to force them to do that. And the chair of the House Committee on Homeland Security has now requested of Secretary Nielsen that she retract the report. Senator Booker did the same. Because first off, it's a security report, and second off, it's false and truth matter matters.
- [48:31]
B
That is an incredibly optimistic turn in a conversation that was getting me down. But I want to tie it directly to my next question, which is, I think one of the things that you've been warning about for two years or I've heard you warning about is complacency and exhaustion and the possibility that an awful lot of our listeners did not know that the Justice Department put up cooked stats and had to get it withdrawn. And it's still not withdrawn. And this is, I guess, goes to Tim Snyder and Yesha and other people who've been writing about this for two years. But in some sense, you are fighting a fight that requires people to not burn out on this fight. And people are burned out. People can't be dialed up to 12 every day in terms of norm erosion and things that happen. You know, you've just mentioned, you know, we've got Jared Kushner clearance, Ivanka clearance, We've got Michael Cohen, you know, sitting and saying, yeah, flagrantly committed campaign finance violations, and the President wrote me a check from the White House, and we all are on screen save because it's too much. And I know this is not a lawyerly question, and maybe it's a mental health question, but how do you in your work try to keep people focused on another norm just bit the dust today. Another rule just went by the wayside and kind of this work of getting people to understand that it's not getting better, you're just getting tired.
- [50:03]
A
So within our organization, we have a set of culture principles that I think are the sort of secret sauce of why we've been able to do so much so quickly over the last two years. And they, they guide everything that we do. One of them is that work life balance is a professional responsibility. And I think this is true for not just all of us who are working day to day in this space, but for all of us as Americans. It's important that as we fight this fight, we also are paying attention to our families and taking care of our families and spending time to the other take care clause. The other take care clause. I think that is an important part of fighting these fights. But the other piece of this, I think, I think that would be helpful, I think for all of us. As you note, we're trying to digest this kind of barrage of information that comes at us every day. I think this is something that the media can do to help us all as American listeners digest all of this is we're not looking at a series of scandals where there's a new one every day. That is what the president wants this to come across as. Because if it is a series of scandals and there's a new one every day, as you know, note, eventually you get numb to it. The way I would think about it is if you step on a bed of nails, you don't feel every nail because there's just so many of them. And I think that is one of the ways in which these autocrats are able to dismantle democracies and take power from the people without them noticing is they just numb them with all of these scandals. Instead, we need to look at it as one scandal. So instead of a bed of nails, it's one nail. And that nail, I think this is where the take care clause can help. That one nail is we have an autocratic president who is trying to dismantle our system in order to advantage himself and those who he associates with.
- [51:49]
B
Ian, you've mentioned I don't even know how many lawsuits. A lot. And there are a lot. But can you tell us a little bit about a couple of suits that are maybe come in my class of quirky and improbable, but actually weirdly Interesting and possibly very effective suits that you haven't mentioned here today.
- [52:08]
A
Sure. And I should say I think we've scratched the surface. I think by last count we filed probably more than four dozen lawsuits since we formed. And then of course, we have a host of policy prescriptions that we've put out for 2020 candidates and state officials, but some that we haven't touched on that are interesting. So. So we filed a suit against Rick Scott in Florida, right on the verge of the midterm elections, because he and we filed a similar one against Brian Kemp in Georgia. They both were in an interesting position where they were candidates for office, and they also, in their government official capacities, were in various ways overseeing their elections and they were using their government offices to tilt the playing field in their favor. As. And so we filed suit in both cases, we got Brian Kemp to resign. He actually came into court when we were having an emergency hearing, or his lawyers did and submitted his resignation saying, does this moot the case? And then in the Rick Scott case in Florida, we got a really interesting opinion from a federal court judge down there that basically was sort of Marbury v. Madison esque, in that he rejected our request for a preliminary injunction. So let Scott continue in that role and then adopted whole cloth, our legal theory that that what Scott was doing potentially was a violation of the due process clause because as Justice Kennedy said in Caperton, a man can't be a judge in his own case. That opinion, I think, is going to be important going forward in 2020 if we start to see other elected officials, government officials, trying to interfere in their own elections. Think, Mr. President, another case that may be interesting soon. You may recall that the director of the National Security Agency, it was reported at one point got a call from the President urging him very Nixon esque, to intervene with the Justice Department to sort of shut down the Russia investigation. It was reported that the NSA director at the time memorialized that conversation in a memo. We've sued for that memo. It's a pretty interesting lawsuit because the NSA is making some arguments that I don't think will stand up in court. So that's something to watch for. And then another one is we're seeing this ugly trend in the states. Thinking now of the states as being kind of laboratories of undemocracy, where they're doing these very undemocratic things in North Carolina and Wisconsin and Michigan, where you're seeing state legislatures after the other party captures an executive office like governor or attorney general, then stripping power from those incoming officials And I think Wisconsin was one of the more egregious cases. We represent several community groups in Wisconsin, the League of Women Voters, a disability rights group in Wisconsin, and an African American community organizing group called Bella in a suit to overturn the lame duck session in Wisconsin for violating Wisconsin's own state constitution. So that's just a sampling of some of the things that, you know, hopefully will produce some interesting law and results down the pike.
- [54:58]
B
Excellent. Last question, if I may. Slightly related, slightly unrelated, but one of the things I have also noticed in addition to collective just numbness and exhaustion, is very, very fanciful. Magical thinking about the lawyer saving us all. And I've probably written this piece 12 times. You've probably read me writing it 12 times that I think there's something worrisome about hoping that Mueller saves us all, hoping that any one lawsuit saves us all, hoping that one state AG saves us all, because I think it's a way of, of turning this into a legal problem. And this isn't a legal problem, as you said. This is a democracy problem. And I wonder what your answer is to the many, many people who write in or come up and say, what should I be doing? I'm not a lawyer. What's the thing I can do? And I can, you know, and I'm sure they all write checks to you and to ACLU and to Penn. So I don't. I'm not talking about writing checks. And maybe it's part of what you're saying about. Well, you have to be vigilant. You have to hold your 2020 candidates to certain values that we've. But what do you tell people who are inclined, I think, to step back and say, thank God Ian Bassin's out there on the, you know, on the ramparts, filing these suits so that I can kind of watch. What's the answer?
- [56:27]
A
You know, we've been very clear since we started Protect Democracy that if it were up to a small nonprofit or aggregation of nonprofits to try to protect American democracy from a global authoritarian movement, we would fail. Clearly, we are only pieces of a puzzle. And the biggest piece of that puzzle, as you note, are the first three words of the Constitution, we, the people. If ultimately the American people decide they no longer want a democracy, then we will not be one. And I think one of the more hopeful structures, stories of the last couple of years and one of the things that gave us inspiration that we could be part of a movement to stop this was something that happened during the transition after Donald Trump was elected, which was The Congress was debating, the new Republican majority was debating. And word got out that they were going to weaken or even abolish the Office of Congressional Ethics, which is a sort of obscure office within the Congress that deals with ethics problems in Congress. And most political consultants and advisors, if you've ever been involved in organizing or campaigns, will tell you process issues don't matter. People don't attach to process issues. You've got to talk about substantive issues. And this was the ultimate process issue. And Eric Lipton at the New York Times got a piece up on the COVID of the New York Times as soon as the word got out that Congress was considering and the President was encouraging them, the President Elect then was encouraging them to abolish the office, that they were going to abolish this Office of Congressional Ethics. And the switchboards at Congress lit up. And we've talked to people who were on the Hill at the time. They said we don't generally see reactions like this from the public on process issues, but people somehow had this sense that at a moment when we had some suspicions about an ethically compromised president, getting rid of an ethics office was a really bad thing. And people called in and they spoke out, and they did the thing that we, the people are supposed to do if we're active citizens, citizens in our democracy. And that gave us hope that if we're going to fight a fight about process issues and structural issues, that there is a, as you mentioned, an inchoate belief among the American people that those things do matter. And we haven't been called upon as a people in a long time to stand up for those issues. In fact, because I think as a victim of our own success as a country, we haven't been called upon in a long time to be active citizens. And I think what this moment does for us, and perhaps this is its gift, is it is a reminder to us that each of us and each subsequent generation has a role to play in tending to creating a freer and more inclusive, more equitable and more representative democracy. And this is the moment we're being called on to do that. So if you're listening right now, when you hear someone say, call into Congress, attend the town hall meeting with your local representative. Go and knock doors when it comes time to push for an issue or an election. Come to ProtectDemocracy.org, get on our newsletter so we can tell you when we're filing a case. And we could use you out there on social media talking about why this is important and backing it. Up. All of those little aggregate acts are the acts of being an active citizen and nothing could be more important. Right now.
- [59:31]
B
That is exactly where I think we should land. Ian Bassin is the executive director of Protect Democracy, which has become a really remarkable cross ideological, cross political shop that has been suing and advocating to do what it says, protect Democracy. Ian, thank you so very, very much. A lot of your time and we appreciate it.
- [59:53]
A
Thank you, Dalia.
- [59:59]
B
And that is a wrap for this episode of Amicus. Thank you so very much for listening. If you'd to like to get in touch, Our email is amicuslate.com we love your letters and you can always find us@facebook.com amicus podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is managing producer of Slate Podcasts. And we'll be back with you in a few short weeks for another episode of Amicus.
- [60:30]
A
SA.