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HEFFNER: I’m Alexander Heffner your host on The Open Mind. A newly born no-profit organization, United to Protect Democracy, has an urgent goal, to hold the president and thee executive branch accountable to the laws and longstanding traditions that have protected our democracy through both Democratic and Republican administrations. Its founding executive director joins me today. A White House counsel to President Obama from 2009 to 2011, Ian Bassin counseled the President and senior White House staff, on administrative and constitutional law, ensuring that the White House complied with the laws, rules and norms that protect that fundamentally democratic nature of our government. “We’ve seen an unprecedented tide of authoritarian style politicics sweep the country that is fundamentally at, at odds with the Bill of Rights, the constitutional limitations on the role of the President, and the laws and unwritten norms that prevent overreach and abuse of power.” This is from Protect Democracy’s mission statement. It continues, “The only limits to prevent a slide away from our democratic traditions will be those that are imposed by the courts, and by the United States congress, and the American people.” Ian, I’m delighted to have you here.
BASSIN: Thank you for having me.
HEFFNER: What struck me recently, watching testimony, um, where it looked like the rule of law was not intact anymore, um, was going back to the beginning of the American Republic, the inseparability of politics and law, and the fact that we can’t really distinguish between what had been established in recent decades, at least since Watergate, as norms, and that they were being, um, challenged, um, on a day by day basis, and essentially the executive branch of this country seems to be making the assertion that, we won, this is politics, politics is determining law, and this is the new American way.
BASSIN: I think when you serve in the White House as a lawyer, one of the things that you realize is that so many of the rules that constrain executive branch behavior, are not actually legally binding. Um, they’re customary, they’re practice, they’re norms that have been honored for decades, and they rely to a great extent on the good faith of the people holding that office, and their ultimate commitment to constitutional democracy.
Uh, what was troubling in the wake of the election, was the recognition that we might be entering a period in which we don’t have fundamental agreement across the country, that those norms are to be honored, uh, and I think we’re looking right now at the very real and present danger that we could be in a period of democratic decline in the United States. Um, and that is why we felt the need to form Protect Democracy, so we could go out there, educate the American public about what these norms have been, what the consequences might be if they were violated, and organize efforts to protect them from the current threat.
HEFFNER: If and when its determined that President Trump uh, has violated the Constitution, specifically High Crimes and Misdemeanors, um, that will largely be a function of, of politics, so what checks are in place now, short of tradition, what you were alluding to before, that are, um, most instrumental in protecting democratic values?
BASSIN: The greatest check that we have right now is the check of the American people. I think one of the things that you hear often when people are expressing concern about Trump is this notion that nothing matters, uh, that no matter what he does, he gets away with it. I don’t think that’s entirely true. Uh, his, his approval rating now is down at around 34 percent. Um, so while it may not be happening fast enough for those of us who are concerned about the threat that he poses to the checks and balances, to the rule of law, to the norms that protect our democracy, there has been a steady recognition that’s been building, that something is very not normal, and something is very dangerous about, uh, this administration and uh, the tide of sort of authoritarian politics that have allowed it to rise. And I think ultimately, we do still have checks in our system. Um, we are witnessing members of congress now grow more and more skeptical about whether the President’s explanations of some of the things he’s done actually hold water. Uh, we’re starting to see the, the smallest fractures in the Republican party, with some members of the the Republican party, starting to ask some serious questions about the President’s behavior. So, while there are many things that are happening here that are eerily reminiscent about other countries where democracy has declined, places like Hungary, places like Poland, Venezuela, Turkey, we still have a stronger foundation for democracy here in the United States that hopefully will protect us. We’re seeing the American people stand up, speak to their representatives, and demand some accountability. Now, some of that requires some additional work being done by lawyers, activists out there, and that’s what we’re committed to doing to help make sure that we don’t allow uh, these, these rules and norms to slide so far that we enter uh, you know truly red-line territory.
HEFFNER: And when you think of the check, that is the law that is the constitution, that is going to prevent a uh, unitary executive, and unilateral decisions that really can usurp the checks and balances we’ve come to understand as fundamental to American society, where, where do you find the most potential for that kind of uh legal protection, insurrection? Um, on a case, by case basis, like with the Travel Ban for instance, or is there a holistic approach you can take, for instance the most damaging thing, I think to people, and this may very well arise in the coming months, is the pardon power of the President, and the ability he would have to basically negate the post Watergate reforms that were important to protect the independence of the judiciary, and investigative bodies like the FBI, to pardon people on a, on a need to know basis, right? That’s not so far fetched from being possible. Uh, so are there, are there legal mechanisms other than popular political support that you’re gonna rely on if and when those things emerge?
BASSIN: Well I think the first thing we need to recognize is that the Constitution along and the laws alone, are not a sufficient backstop. Uh, some of the things that the President has done recently, for example, simply the decision to fire the FBI director, taken irrespective of the reasons behind it, is something that a president is lawfully allowed to do. Uh, when we were in the White House, we had a set of rules governing contacts between the White House and the Department of Justice, and the FBI. Those rules have been in place for more than 40 years since Watergate. They’ve been uh, abided by both Democratic and Republican administrations. One of the first things we did at Protect Democracy was issue a memo to the media and to the Hill, to help educate people on those rules. But those rules are not legally enforceable. So we do need to recognize that it is not the Constitution itself and not the laws itself that will protect us, which I think is why President Obama in his farewell address pointed out that our Constitution and our democracy, are not self-executing. They depend on the active fertilization of each subsequent generation of Americans, to reinvest these laws, these norms with meaning, and support. What we have been doing as an organization, is trying to help that process. And there’s four steps that we go through to do that.
The first is public education, uh, putting out memos like the one we did on the rules governing contacts between the White House and the DOJ, which we did in early March, which turned out to be prescient, cause those are the very rules now that are at issue with whether or not the President has been trying to obstruct investigations in the Department of Justice. It’s important to educate people on those rules, because then they become the subject of congressional hearings, media reports, and ultimately citizen response, citizen voting. The second step is monitoring and exposing misbehavior. Uh, we do have tool as citizens that can hold the government accountable. We have filed more than 150 Freedom of Information Act requests, which allow us to get access to government records and documents that will show whether misbehavior is taking place. The third step is then inducing oversight, taking the material we received, presenting it to the relevant oversight bodies, and asking them to do the oversight job that is one of the checks that’s built into our system.
Now, some of those oversight bodies are being reluctant to act, right now in particular, congress and the Republican majority is not doing the oversight job that they should be doing. So we’ve set a 501c4 advocacy organization, to build public pressure on those oversight bodies to make sure they act. And then finally, the fourth step is litigating, making sure that we’re going to court, and where there acre judicial remedies that we can seek in court, making sure that judges hold the line on core principles that are central to our democracy, if the other checks and the other branches of government fail.
HEFFNER: Would you use that last mechanism if and when the President begins to pardon people who are under investigation? I mean is…
HEFFNER: That seems to be a plausible scenario.
BASSIN: Yeah. I think one of the things that we need to be doing now, is making sure that we’re performing legal analyses and getting them out into the hands of senators and other leading figures in our community that will inform how you respond in situations like that. There is, there’s a great deal of political and public pressure, that interfaces with the law, um, that, that animates the law, and we need to make sure that there are leaders out there, in the legal sphere, on the Hill, that are making clear, what would be an acceptable use, what would not be an acceptable use. But the question of whether you go to court, and ask if whether a particular pardon was acceptable or not, is really a novel one for the courts. And one of the things that we’re thinking about now is, how do you start to develop and understand legal doctrines that may be necessary to protect our democracy at this point in time that may never have been recognized before because they weren’t necessary.
And this is, this is a, a part of American law that has been in existence for hundreds of years, this notion that new circumstances might require new legal doctrines. Brown v. Board of Education was a relatively novel interpretation of the Fourteenth Amendment. Uh, the recent decision, respecting same sex marriage, was a relatively new interpretation of the Fourteenth Amendment. Uh, even on the conservative side of the ledger, uh, the arguments that retail stores are entitled to religious freedom rights, was a relatively novel legal argument and doctrine, and I think we need to be thinking now about, what are the ways in which our Constitution and law protect us today, given the threats of the modern era, one of which is, some of these potential abuses of power that you’re talking about.
HEFFNER: And one of your peers in this arena is Jameel Jaffer, at the Knight Institute, First Amendment Institute at Columbia University who has, uh, filed to protest the President’s block, blocking citizens from his Twitter accounts, as another example of, an atypical uh, use of executive power to breach some First Amendment right. So there, as you’re describing, there are a lot of novel legal responses um, to these circumstances that are, um, challenging um, and difficult and, and unknown.
BASSIN: And, and, here’s, here’s another one. Uh, one of the things that we’re very concerned about is the President’s tendency to bully private citizens who dissent against him. We saw this during the transition when he went to Twitter, to attack the Union chief of the Carrier plant, uh, Chuck Jones. Uh, historically, there, there hasn’t necessarily been any use for the constitutional clause, called the Bill of Attainder clause. The Bill of Attainder clause was something that the founders put into the Constitution because they were worried that the congress might try to convict individual citizens without due process of law. And they were worried about an overweening Federal government that brought that immense power of conviction to bear on a citizen who didn’t have the means to defend themselves. In the modern era, the court of public opinion is incredibly important to people’s reputations, to their livelihoods, their standing in their communities. The federal government, in particular the President’s power of the bully pulpit, um, to essentially convict someone in the court of public opinion in a way that could be damaging, um, to their standing in their community, is very much akin to what the Founders were worried about happening, in terms of an overweening federal government, and a somewhat defenseless private citizen.
So, it’s worth thinking about whether there are potential applications of some of these things that the Founders were concerned about, to the modern space, and we need to be thinking about as we’re facing threats from, not just this President, but potentially future presidents and future administrations that are unlike threats we’ve faced before, because this authoritarian style of politics, it was starting to develop before Trump, and unless we take proper steps, it’s going to last after Trump.
HEFFNER: There are those I think, people who would equate political victory, um, with more than the constitutionally endowed responsibilities or rights of the executive office. What do you do about that disconnect?
BASSIN: Well, I think traditionally, every president, uh, has moments when they have respect for the checks on their power, and moments when they express frustration about it. I think that’s normal for presidents. What we’re facing here, is a president where every example is on one side of that ledger, right? We essentially have a president right now, who, every time he runs into a constraint on his power, he thinks it’s a ribbon in front of one of his buildings and pulls out his scissors to cut it. Um, when he ran up against the notion that he’d lost the popular vote, and that ultimately voters might be a check on his power, he began to delegitimize the legitimacy of the vote, by claiming, uh, without any evidence, that there were three to five million illegal voters. Um, when the courts started to strike down or pause his Travel Ban, he began to delegitimize the courts. Um, when the FBI was investigating his associates, he fired the FBI director. Um, that is not a normal way for a president or a leader in a democracy to behave. Now I think you’re right that this is not just Trump alone. Uh, some really disturbing findings that, over the last twenty years, the number of Americans who would think it would be either good or very good for the military to rule in the United States has gone from 1 in 16, to 1 in 6.
It’s particularly high among millennials. So, Trump is an acute threat, but he’s riding a wave of anti-democratic sentiment in the public that we need to begin to address. I think part of what we need to do, both as, Protect Democracy as an organization, and us as a, as a civic body, is begin to reinform and reeducate, uh, our citizens as to what the values ultimately are of having checks on power, power, checks on democracy, because when you look at the things that Trump has done, the firing of Comey as a, as an official that could hold him accountable, that looks a lot like what’s happened in Hungary recently, where Orban there has removed the incumbent heads of government bodies that could hold him accountable. When you look at uh, the President undermining the courts, uh, in a way that we’re concerned could lead to, at some point, the executive deciding not to follow a court order that looks a lot like what’s happened in Poland, where the European Union has warned that Poland is drifting away from democracy into, into autocracy, because there the ruling Law and Justice Party, essentially refused to seat justices to the constitutional court there that were appointed by the outgoing party, in order to pack the court with its own.
Sounds a lot like what happened with Garland and Gorsuch here. Um, when you hear the President talk on the campaign trail, about wanting to reopen the libel laws, in 2012, in Russia, Vladimir Putin recriminalized libel, uh, so that he could prosecute people who dissented. So, I think what we need to do here, is we need to be having a conversation that, the things that we’re witnessing are not a random assortment of scandals. Um, they are part of a pattern of how you undermine democracy and bring about autocracy, and share with the American people why we would not want to live in a society like that, where we wouldn’t have the freedom to have the conversation like we’re having right now, without fear of reprisals, where our businesses can’t depend on the rule of law, that’s not the kind of country we want to live in.
HEFFNER: Ian, root cause, if you’d ask me, I’d say, economic inequality begets political inequality.
BASSIN: That’s absolutely one of the root causes. You know, the 20th century was a century of Democratic growth and spread, both domestically and internationally. So far, the Twenty First century has been one of democratic back sliding. If you look at Freedom House data on the health of democracies around the world, they’ve been going down since 2005. And those who have studied what’s happened in all of those countries have pointed precisely to growing inequality as one of the causes of democratic decline. If the system is not working for you, it’s pretty easy to say, well let’s change the system. I think one of the other causes is a lack of faith in institutions, writ large.
Uh, Chris Hayes has a terrific book, “Twilight of the Elites” in which he documents how every American institution in the last decade to two decades, has experienced some crisis of confidence in the American people, from Wall Street to the Catholic Church to Major League Baseball. So, the both, the inequality gap and the lack of faith in institutions are driving this lack of faith in democracy. And I think we need to think about a two-step process to get back on the right footing. Right now, we’re in a rearguard action. We have to protect the norms that protect our democracy from the immediate threat, which is the current President, and one party that so far is putting party and power over American principles. Only once we survive that rearguard moment, can we then start trying to rebuild faith in institutions, and develop policies that spread the wealth in a more equitable way, so that people feel like the system is working for them. But it’s going to be hard to do that with, with Donald Trump and the current threats that he and Trumpism are bringing to the system.
HEFFNER: Well there’s no doubt that economic disparity, uh, which is already acute, um, will be further exacerbated and it would not surprise anyone that correlated with that will be further deterioration of, of these democratic norms, although you are, um, working to ensure that that can be averted or minimized, or ultimately reversed, but how do you take kind of the origin story of America, if you think about, I was thinking when you mentioned Putin and his reelection, of, of Wilson and others in America who, who don’t have immaculate records when it comes to libel, and also if you look at Hoover as a pre-Watergate example of an FBI head who arguably had more power than the constitutional chain of command. We don’t want to return to the J. Edgar Hoover model of FBI.
BASSIN: I think part, we have to, we have to tell stories. Um, you know, the fact that millennials are the, the generation that is statistically most comfortable with the notion of replacing democracy of a more autocratic form of government suggests that we’re not doing a god enough job telling the stories of what these abuses were like for average citizens. I, I knew a terrific artist. His name was Arnie Neshies, he passed away recently at the age of about 94. Um, he had been an artist who painted protest paintings over, sort of many of the protest movements of the sixties and seventies. Later on, he sent Freedom of Information Act requests to the FBI, to find out whether they had been following his activities. And sure enough, there was an entire dossier on him. Friends of his were reporting to the FBI on him, people that he trusted. They were, they were talking to people in his community and his circles, getting them to turn on him. How would we feel, uh, today if, you know, any one of us felt that we couldn’t trust our friends, that they might be reporting on us, that the government was collecting secret information that they would use as sort of the Damocles sword to hang over us if we ever did anything that they didn’t like.
Um, this is what life is like for citizens in places like Russia, and to a greater degree now, in Turkey, and Hungary, and Poland, and I think we need to tell the stories of what it was like for Americans who lived under, you know, those types of operations by our government in the 1950’s and 1960’s and 1970’s, people who were hauled before the House Un-American Activities Committee, Japanese Americans who were put into internment camps. We need to be telling those stories, because those are the things that we need to be worried about. Um, I think there are some very scary, predictable emergencies that could be on our, our horizon, that could revive some of those tactics. And you know, if there’s an attack here in the United States, that looks like what’s been happening in Brussels or Paris or London, uh, I think all of president Trump’s tendencies would suggest that could do things that would be wholly out of step with the values that most Americans share.
And how so we make sure that people are aware that when that happens, it’s essential that we all stand up, that we all stand up against it, because in the countries where democracy has declined, and autocracy has risen, there’s normally a moment, where every average person kind of licks their finger and puts it in the wind, to figure out which way the wind is blowing, and if everybody is running to JFK or Dulles to protest the Travel Ban, people are wiling to stand up against it. But if everybody puts their heads down, locks their door, decides not to talk to neighbors, that’s a death knell for democracy, and people need to know what’s on the line so that they can make sure they’re one of the people who continues talking, continues standing up, continues running to the streets when necessary.
HEFFNER: As you describe it, it is a worrisome scenario.
BASSIN: Well I think the other thing that we have to remember, is that sometimes what might be a tempting road to go down, uh, may not be the wisest. So, for example, um, what the goal of terrorism is, as a political tactic, is to create more fear among a public than is warranted by the actual threat. One in 25, 26 million people are the victim of terrorism. You are more likely to be hit by a car. Yet, if you ask the average person which one they’re more afraid of, they’re certainly much more afraid of terrorism. And so the instinctual response, the natural human response is to overreact, to do things that are out of proportion to the threat. And when you do those things, you actually play into the hands of those people who are trying to bringing down our system. And often times those tactics, as we saw with torture and waterboarding, don’t actually work. So we need to be confident enough, that if we take a thoughtful response to these attacks on our freedom, we will be more successful, than if we take a kneejerk, instinctual response, that can actually bring down the, the very pillars of our system that are there in the long run to protect us.
HEFFNER: Right, and there certainly is always the possibility of a lone wolf attack but I, but I think president Obama’s two terms demonstrated the promise of soft power or considering a smart, soft power approach, and the bellicosity of the current administration, uh, it ought to be understood, may backfire, and that bellicosity more than American citizenship, or our country, is what could inspire the next wave of attacks or asingle attack that could potentially put our rights in jeopardy.
BASSIN: I mean our enemies, from Vladimir Putin, to ISIS, to the original Al Qaeda, their goal is to undermine the promise of American democracy. And so our job as Americans is to defend it in the face of whatever threats are thrown at it. Uh, and one of the things that has been happening recently, is we’ve been, as a country, I think, losing a sense of what the red lines are, that define American democracy. The goal posts have been moving. If I told you a year ago, that the President of the United States was going to fire the FBI director, for looking into, uh, wrongdoing by his associates, and then brag about it to the Russian foreign minister in the Oval Office, while disclosing classified information, you’d tell me I was being alarmist and crazy. If I told you that today, you’d say, yeah, and did you see what they did this morning? We need to get back our sense of what the red lines are and so, one of the things I think all Americans can do right now, watching this program is, and this has been advice from Masha Gessen, a dissident from Russia who, who told us when, when Trump was elected, make sure you don’t let abnormal things become normal. Write down what’s not normal. Write down the things right now that you think are fundamental to America. Keep that piece of paper, because a year from now, you’re going to need to look at it and make sure that if things have moved beyond those lines, you’re one of the people who’s going to be willing to stand up and fight for what this country’s always been about.
HEFFNER: Ian, thank you for your work, and thank you for being here today.
BASSIN: Thank you, Alexander.
HEFFNER: And thanks to you in the audience. I hope you join us again next time, for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/Openmind to view this program online, to access over 1,500 other interviews. And do check us out on Twitter and Facebook@OpenMindTV for updates on future programming.