Podcast Summary: Amicus with Dahlia Lithwick | "Protecting Democracy in a Pandemic"

Date: March 28, 2020
Host: Dahlia Lithwick
Guest: Ian Bassin (Co-founder of Protect Democracy, former Associate White House Counsel, Obama Administration)

Episode Overview

This episode examines the challenge of securing democracy and protecting civil liberties during the COVID-19 pandemic. Host Dahlia Lithwick is joined by Ian Bassin, who offers perspective on government emergency powers, professional ethics, bipartisan collaboration, the threat of autocratic overreach, attacks on truth and media, and securing the 2020 U.S. election. The conversation balances deep concern over potential abuses with practical solutions and reasons for hope.

Key Discussion Points and Insights

1. Emergency Powers & Constitutional Safeguards (03:50–07:28)

• Democracies vs. Authoritarian Responses:
  Not all effective pandemic responses are authoritarian—democratic countries like South Korea and Taiwan have responded successfully with robust measures, but within legal and factual frameworks.
• U.S. Constitution in Crisis:
  The Constitution is designed to work during emergencies. The lack of special emergency carve-outs means civil liberties should not be abandoned, even in a crisis.
• Quote:

  "Our founders designed the constitution to be effective even in a moment of emergency. It is designed to protect our rights, our system of government, even at a moment of great strain."
  — Ian Bassin (04:31)

2. Learning from Past Overreach (07:28–10:48)

• Historical Errors:
  Retrospective critique of decisions like Japanese internment and the Patriot Act shows danger in abandoning professional ethics and legal norms during crises.
• Ethical Anchors:
  Professional norms and honest disclosure (e.g., to the courts) are critical in resisting panic-driven overreach.
• Quote:

  "There is this temptation at moments of crisis...to abandon the way we normally do things and to make certain shortcuts or exceptions. And that's the real danger."
  — Ian Bassin (07:44)

3. Trust, Surveillance, and "Trust but Verify" (10:48–16:56)

• Institutional Trust Erosion:
  Bassin notes that extraordinary surveillance (e.g., using cell phone data) must be balanced with the need for transparency and public trust.
• Checks and Oversight:
  Courts, Congress, and whistleblowers play a vital role in ensuring government claims are independently verified.

4. Emergency Power Creep & Sunset Provisions (16:56–19:23)

• Powers Not Easily Relinquished:
  History shows emergency powers, once granted, are rarely rescinded unless forced by explicit legislative action.
• Legislative Solution (The Article 1 Act):
  Proposal for a sunset provision means emergency powers would expire unless Congress reauthorizes them, reversing the current "power persists by default" system.
• Quote:

  "It would switch the default to the emergency automatically sunsets unless Congress reauthorizes it. That is a critical change that we need."
  — Ian Bassin (18:19)

5. Building Cross-Ideological Coalitions (19:23–24:06)

• Beyond Bipartisanship:
  Effective defense of democracy means building “cross-ideological” (not just bipartisan) alliances, as party institutions may not always act as checks, but individual conservatives and liberals can find common ground on fundamental democratic values.
• Quote:

  "We should really talk about bringing conservatives and liberals together, independents together, and focus less on party identification."
  — Ian Bassin (20:35)

• Litigation Successes:
  Protect Democracy’s legal actions have brought together diverse clients and lawyers (e.g., opposition to border wall emergency declaration).

6. The Role of Criticism in Crisis (24:06–29:02)

• Constructive Criticism vs. Blame:
  Criticism, when solution-oriented, is fundamental to democracy and accountable governance—even in a crisis. Blame should be avoided if it’s only backward-looking.
• Quote:

  “Criticism of government is a patriotic thing to do and woe to us if we abandon criticism of government, especially at a moment of crisis.”
  — Ian Bassin (26:21)

• Unity of Opposition:
  Drawing on lessons from Poland, uniting opposition factions is critical to resist autocracy.

7. DOJ & Executive Overreach: What Hasn’t (Yet) Happened (29:02–34:23)

• Notable Absence of 'Big Power Grabs':
  Lithwick and Bassin discuss why DOJ has not taken even more drastic actions; Bassin cautions against complacency, noting that some power moves go unnoticed due to desensitization.
• Concerns for the Future:
  Ongoing worries about federal attempts to override local quarantine measures and about insufficient action to protect vulnerable populations (e.g., prisoners, immigrants).

8. The Pandemic, Truth, and Information Integrity (34:23–42:44)

• Assault on Truth:
  Years of distrust in institutions, science, and media have left the U.S. vulnerable not just to the virus but to truth decay.
• Legal Wins for Facts:
  Protect Democracy has prevailed in litigation to ensure independent science on government advisory boards (EPA) and to correct DOJ propaganda/statistical manipulation (Information Quality Act suit).
• Quote:

  “Having tools to fight back on...autocratic governments trying to use propaganda to scapegoat vulnerable populations is one of the scariest things that happened globally in the 20th century.”
  — Ian Bassin (41:18)

9. Attacks on Free Press and Legal Pushback (42:44–47:40)

• Playbook for Undermining the Press:
  Drawing parallels to Hungary and Russia, Bassin outlines methods by which leaders can economically pressure or delegitimize journalists, but notes the vigor of American media’s response.
• Active Litigation:
  Lawsuit against the Trump administration for retaliation against critical press outlets (e.g., CNN, Washington Post, PEN America); recent win in court allows the suit to proceed.
• Quote:

  “One of the favorite tricks in the bag of the modern autocrat is delegitimizing the media and eliminating...its ability to criticize the government.”
  — Ian Bassin (44:06)

10. Protecting the 2020 Election in a Pandemic (47:40–53:09)

• Threats to Election Legitimacy:
  Concerns about reduced turnout, inequitable voting access, and rushed or opaque changes to process.
• Task Force on Election Crises:
  Protect Democracy assembled cross-ideological experts (e.g., election officials, civil rights leaders, former Bush and McCain aides) to advise on legal and factual measures for running a fair election under pandemic conditions.
• Three Metrics for Free and Fair Elections:
  • Conformity to the law
  • Changes guided by facts and transparency
  • Wide and equitable participation

11. Reasons for Hope and Optimism (53:09–57:24)

• Shared National Experience as Opportunity:
  Bassin suggests the pandemic, while devastating, offers a chance to rebuild social cohesion as Americans (and the world) experience the crisis together, potentially renewing democratic commitment.
• Quote:

  “There has to be some hope and some optimism that us going through this together...can actually help us restitch our social fabric and remind us that we have something in common.”
  — Ian Bassin (55:34)

Memorable Quotes & Moments

• On U.S. constitutional resilience:
  "We absolutely need the government to do certain things that are relatively extreme...but we need them to do it consistent with two things, law and facts." (05:21)
• On ethical lapses in crisis:
  "When we really drill down on what went wrong, it was that individual lawyers in the government didn't follow the normal ethics of the profession." (09:26)
• On 'cross-ideological' unity:
  “The dynamic of trying to find what is Republicans and Democrats coming together has a bit of a feel of Lucy pulling the football away from Charlie Brown...party means blind loyalty to President Trump.” (21:00)
• On participation in elections:
  "If we were to come up with measures for protecting the election that disproportionately cut out certain populations...that would raise serious questions about legitimacy." (52:01)

Timestamps for Key Segments

• 03:50 — Balancing emergency powers and civil liberties
• 07:28 — Lessons from history: internment, Patriot Act, ethics
• 10:48 — Trust and surveillance, "trust but verify"
• 16:56 — Danger of emergency powers lingering
• 19:23 — Building cross-ideological coalitions, Article 1 Act
• 24:06 — Criticism vs. blame, opposition unity
• 29:02 — DOJ's pandemic role and power grabs
• 34:23 — Truth, science, disinformation, and lawsuits
• 42:44 — Press freedom, autocratic playbook, legal response
• 47:40 — Safeguarding the 2020 election, election task force
• 53:09 — Optimism: the pandemic as a shared rebuilding experience

Concluding Reflection

Ian Bassin and Dahlia Lithwick offer a nuanced analysis of democracy under threat in a public health emergency, blending legal expertise, historical perspective, and practical hope. The episode outlines not only the current vulnerabilities but also concrete paths for civic engagement, legal resistance, and community resilience.