United to Protect Democracy – Ian Bassin | The Open Mind

United to Protect Democracy – Ian Bassin | The Open Mind


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 the 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 alone 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… BASSIN: Well… 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 good 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 a single 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, or to access over
1,500 other interviews. And do check us
out on Twitter and [email protected] for updates
on future programming.

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