Ian Bassin was associate White House counsel under President Barack Obama. He’s the founding executive director of the organization Protect Democracy, and past president of the American Constitution Society's Student Chapter at Yale Law School. He spoke with Prospect Co-Editor Robert Kuttner. This conversation has been edited for clarity.
Robert Kuttner: What can Robert Mueller do to protect the integrity of his investigation? What might have been done so far and what can he do in the future if the acting attorney general, Matt Whitaker, tries to rein him in?
Ian Bassin: There’s one thing that we know that Mueller has already done and there’s another we can speculate about. We know he has divided up a variety of the possible cases against people in the Trump orbit to different parts of the Justice Department. So some cases are in the Southern District of New York, there are cases that are being overseen by the National Security Division, some by the special counsel's office directly.
All this will make it somewhat challenging for Matt Whitaker or the future attorney general to try to put these genies back into the bottle. They’ll be playing a sort of a game of bureaucratic whack-a-mole. I can tell you from having worked with the Justice Department when I was in the White House that if Matt Whitaker or anyone else tries to go all over the department trying to clean up the president’s mess, the bureaucracy is going to give him holy hell.
The deep state.
I wouldn’t call it the deep state. I would call it America’s civil servants who all swear an oath to uphold the constitution.
I think I was being facetious, invoking Steve Bannon.
Of course. But it’s an important piece of what makes us a liberal democracy. Having a civil service that is committed to a set of ideas and not loyal to an individual is what separates us from more autocratic countries. That’s there by design.
The other thing that some of us suspect that Mueller may have done, or hope he has done, is perhaps he has already filed sealed indictments against whatever individuals he is planning to indict in the future. If those indictments are already filed with the courts, they are under seal, and at some point they can be revealed by either the special counsel or by the courts themselves.
There was also speculation that he could simply transmit information to the grand jury. How would that work?
Our organization, Protect Democracy, represented three scholars who successfully asked the courts to make public the so-called Watergate Road Map. The plaintiffs were Benjamin Wittes of Lawfare, Jack Goldsmith of Harvard University, who was the head of the Office of Legal Counsel in the Bush administration, and Stephen Bates at the University of Las Vegas, who was part of the Whitewater prosecution team. This is a document that has been secret for 44 years and it is the document that Watergate Special Prosecutor Leon Jaworski had the Nixon grand jury transmit to the House Judiciary Committee, laying out all of the evidence that the Watergate special prosecutor had found tying President Nixon to unlawful behavior.
What Jaworski realized at the time was that there was a serious question, after having indicted dozens of Nixon officials, of whether he can indict a sitting president. Rather than indicting a sitting president—although he thought he had the evidence to do so—he had the grand jury transmit all of its findings to the House Judiciary Committee, as he said, as a report suggesting it to consider whether impeachment was appropriate.
That document was filed under seal in 1974 and it’s been under seal ever since we filed papers; we were the second group there. There was actually another lawyer who had sought to get them unsealed, and that case has been pending for seven years. We filed papers two months ago to have it unsealed, and last week the document was in fact unsealed.
The reason we did that is that we thought it would provide a powerful precedent for Robert Mueller, should he want to transmit his findings from the grand jury to the House Judiciary Committee in a way that cannot be blocked by the president. As you’ll recall, Rudy Giuliani and the president hinted perhaps that they would try to block the release of any Mueller report or exert executive privilege to prevent it from being transmitted to Congress. Now, this Watergate Road Map suggests there’s actually a way around that. Perhaps now that the document is out there—and you can find it at the Protect Democracy website—Robert Muller might use it to transmit his finding to Congress.
Now that Democrats are the majority party in the House, if the House Judiciary Committee or another committee decided to launch an investigation of the Trump effort to stymie Special Counsel Mueller, and they subpoenaed Mueller to provide information to the committee, how would that play out? Under what doctrine would Trump try to block that, and what are the chances that he could succeed?
He would likely try to assert a variety of forms of executive privilege. There is a privilege—called the presidential communications privilege—that entitles the president to receive the candid advice of his aides. Of course, the president has not been getting direct candid advice from Robert Muller.
Well not only that. Muller is not the president’s aide. Muller is an independent counsel who is investigating the president.
That is correct, to a degree, though at the end of the day, Robert Muller is an employee in the Executive Branch. And the Executive Branch is headed by the president. Now we have set up a system in which we expect that the decisions made by the men and women serving the Department of Justice will be independent of the personal preferences or whims or wishes of the president. We expect we’re a nation that abides by the rule of the law and that the law enforcement of our nation is conducted in a way that is independent from political or personal preference. What’s so dangerous about what President Trump has been doing is he has been attacking that line and eroding that line, as he famously said at one point last year, “I have an absolute right to do whatever I want with the Department of Justice.”
That has not been the tradition of any president, Democrat or Republican—with one exception to date, which is Richard Nixon, and we know what happened to him. So one of the things we did earlier this year—we being our organization Protect Democracy—was to put out a white paper explaining why that traditional line between the White House and the Department of Justice is not just something that’s customary and normative—it's actually constitutional.
There are constitutional reasons why the Department of Justice should be independent. We actually had a bipartisan group of former Justice Department officials, including Preet Bharara and John Dean, file a brief in the AT&T antitrust matter, laying out all of the reasons why this line is there, why this line derives itself from the Constitution. That was a case in which, at least as many people see it, and we see it, the president has leaned on his antitrust division, to prosecute a case against AT&T and Time Warner—to block their merger—because he doesn't like the coverage of Time Warner’s company CNN. That's exactly the reason why that line exists, because you shouldn’t have the president picking and choosing who gets prosecuted and who gets investigated based on his personal political preferences.
Here’s another hypothetical that’s not so hypothetical. If and when Whitaker starts trying to hem in Mueller, asking him for information, limiting where he can go with his investigation, cutting his funding, and so on, how does that play out and how do the courts—which are ultimately supervising this investigation—get into the act? There was just a report that a three judge panel on Friday ordered Mueller to explain how the shift in the Justice Department is going to affect his job.
First, can Matt Whitaker actually occupy the seat of acting attorney general? I think the answer to that is no.
But who stops him?
First let’s first talk about why he can’t sit in that seat and then let’s talk about what might be done about. So first off, the Appointments Clause of the Constitution requires that any principal officer—which would be a cabinet official who reports only to the president—must receive the advice and consent of the Senate—must be confirmed by the Senate. Matt Whitaker has not been confirmed by the Senate and there’s a reason that the Founders put that clause in the Constitution.
George Conway and Neal Katyal have an op-ed in The New York Times laying this out—why the Founders didn’t want an individual person in the seat of the presidency to have unfettered unlimited control, to stock the Executive Branch with personal loyalists who reported to only to them, and to have no other check. If you read the Federalist Papers, it was all about setting up an interweaving system of checks and balances.
This is exactly the scenario that the Framers put the Appointments Clause in to prevent, where a president who has incredibly authoritarian and autocratic tendencies tries to install a loyalist as attorney general in order to shut down an investigation into himself. So there is a very strong constitutional argument that Matt Whitaker is not actually able to occupy the seat of attorney general.
Now, what can be done about it? Well the first thing that should be done, is that the chairman of the Senate Judiciary Committee, Chuck Grassley, and the chairman of the Senate Intelligence Committee, Richard Burr, should haul Matt Whitaker before them the first moment they are back in session, at first to demand concessions from him to protect the investigation, and then assert the congressional prerogative that the Senate has the right to fill that position. Frankly, I think you're seeing conservatives ask how it is that Mitch McConnell is seeding his power as Senate majority leader to the president. But then there is also the question of whether that can be challenged in court.
You asked what the courts can do to get involved. And I think there’s clearly a role for the courts to play to enforce the Appointments Clause requirement. The courts can also provide remedies for individual people who are injured by unlawful behavior.
What is underlying all of this it is the fairly clear evidence at this point that the Trump campaign conspired with Russia to interfere in the 2016 election. The Executive Branch via Robert Mueller is investigating whether crimes were committed, and have indicted numerous people and will likely indict more for violations of criminal law.
The Congress is tasked with looking into the public policy ramifications to decide if new laws are needed. But the judiciary has a role to play too, which is to provide remedies to individual people who are hurt. At Protect Democracy, we actually filed the first civil litigation against the Trump campaign for conspiring with Russia to interfere in the 2016 election. We represented three American citizens whose personal private information was dumped to the world when the DNC emails that had been hacked by Russia as a part of the conspiracy with the Trump campaign put those emails on WikiLeaks and included things like our clients Social Security numbers. So that litigation is actually ongoing and provides an avenue for an Article III judge to provide redress to individual Americans who were harmed in a way that the president cannot interfere with.
Until this week, the word on the street was that Trump, although he obviously hated Sessions and felt Sessions was disloyal, resisted firing him because he had been warned by senior Republicans in Congress that this would set in motion a kind of Saturday Night Massacre scenario and that this would be catastrophic. Yet all of a sudden, on a kind of a whim—and it doesn’t sound like anybody knew about this—as soon as the midterm was over, partly to change the subject and partly because he felt free to do it, he just kind of ignored that advice and fired Sessions. Now does this mean that the advice was never that forceful or serious? The Republicans on the Hill didn't really mean it or don't mean it now? Or do you think there’s going to be any serious pushback of the sort that you described a moment ago, where the senior people on the Judiciary and Intelligence Committees might haul Whitaker in and ask him what he intends to do?
I think you’re seeing a pushback. I mean let’s just talk about what happened last Tuesday. This was a massive wave election which served as a repudiation of the president. Not only did the president’s opposition party flip the House of Representatives. It flipped seven governor’s seats and it flipped about eight state legislative chambers. You saw ballot initiatives up and down the line on pro-democracy issues pass around the country. I think at this point the tabulation is something like 400 state legislative seats flipped from the president's party to the opposition party. This was—especially given the strong economy—this was a remarkable repudiation of a sitting president.
So I think those Republicans, as we understand it, who had been cautioning the president not to fire Jeff Sessions before the election knew that the president was already in hot water with the voters and that it would only make things worse.
There’s often a feeling among those who are concerned about the worst tendencies of this president—and make no mistake they are very dangerous and scary—that he seems to get away with all of this. But he’s not getting away with it. He has the lowest approval rating of any president in modern history since approval ratings have been taken and the voters just responded. The mistake that the president’s making is he’s taking his political advice from Sean Hannity and Jeanine Pirro and that’s not good political advice. And I think the results of that were seen this week, so the more he behaves like the autocrat that he is and does things like he has done this week, I think the more he’s going to find that he’s stepping on a rake.
But do you think, as a practical matter, that senior Republicans in the Senate, who have the authority to call a halt to this, are going to put limits around what Whitaker can do?
Well you’ve seen already some pretty forceful statements that Senate Republicans have issued. Lamar Alexander issued one, Mitt Romney issued one before the election, you saw Susan Collins issue several, and Richard Burr certainly has been reasonable on this issue. I don’t want to put too much faith in what the Republican caucus will do because, as we have seen over the last two years, the modern Republican party is a captured autocratic party. But it does seem, at least on the issue of the president interfering with an investigation into his own campaign, and his family and allies, that there’s some appetite—among at least a handful of Republican senators—to say that there’s a line that’s too far to be crossed.
If Trump gets away with this, if Trump succeeds in sidelining or weakening the Mueller investigation and somehow he were to be re-elected, given his autocratic tendencies, what sort of things keep you up at night in terms of what Trump might try to do next?
We are living right now in a moment when, after a half century of democratic progress around the world, democracy is in retreat. According to Freedom House, which studies the state of democracies around the world, democracy was spreading to more countries and improving in those countries; it was in in a pretty much upward trajectory through the latter half of the 20th century. But that trend peaked around 2005. And ever since then, democracy has been in retreat and you’re seeing the rise of these autocrats like Orbán and Maduro and Erdogan. And so what's happening here in the United states is not just about Donald Trump. This is part of a global trend, a global movement of which Trump is a symptom and not a cause.
One direction for the future of this country, if we survive this moment, is that we turn this crisis into an opportunity, we reinforce the guardrails of our democracy, and we emerge stronger for it. But the other possibility, which is the one you laid out, is that we are not immune to this global political virus that has affected our body politic. And President Trump is re-elected or, I suppose to get even scarier, that he interferes in some way with the 2020 election to assure his re-election. So let’s think about some nightmare scenarios there.
Just this week our organization, Protect Democracy, filed a lawsuit—an emergency lawsuit in Georgia, to seek to bar Brian Kemp, the gubernatorial candidate there, from presiding as secretary of state over an election from which he is a candidate there.
Very Trumpian! And we filed that because we were afraid that if he was allowed to get away with that, it would set a precedent and normalize that sort of behavior that Trump would use in 2020. Thankfully we were successful. So we re-appeared in federal court yesterday morning for an emergency hearing in Atlanta. Moments before the hearing was about to begin, Secretary Kemp’s lawyers informed the judge that the secretary had just announced that he was resigning, in order to move out our case, frankly, because he knew he was going to lose it.
But let’s imagine that you’re seeing Rick Scott engage in similar behavior right now in Florida. Let’s imagine that 2020 comes along and President Trump starts to use the apparatus of the federal government to tilt the playing field in his direction, to help him win the election. That’s exactly the kind of stuff that’s out of this autocratic playbook and I think those of us who care about democracy and the rule of law need to really spend the next two years building up the kind of lawful checks that may not have been in place before because that was not the kind of thing we had to worry about. They really need to be in place now given the proclivities of the current present Republican Party to really try to subvert rule of law, norms, and institutions in order to simply aggrandize power.
I’ve come up with my own list. For example, he effectively commandeered the FBI in the Kavanaugh investigation, to kind of make them do a sham investigation. He could use the IRS to go after 501(c)(3)s. He could pass an Official Secrets Act that would make reporters more liable. He could have criminal libel laws. With Democrats controlling the House, this is less likely. But why did he not pursue more of this? Is it because he hasn’t thought of it? It is because he’s too disorganized? Are you concerned given two more years, six more years with more competent advisors such as Stephen Miller he would eventually get around to this? Are we protected from some of this just by Trump’s short attention span, or what?
The scholars who are on our board of advisors who have studied these autocrats around the world will warn you is that whether the autocrat is deliberate and strategic and almost Machiavellian in their planning as Viktor Orbán has been in Hungary, or whether the autocrat is somewhat bumbling and instinctual as Donald Trump has been, you end up in the same place. Because fundamentally, if a person’s inclination is that I, alone, can solve it, as Trump and these other autocrats have said—and that any checks and balances that are designed to restrain their ability to do that need to simply be steamrolled or abolished. They will try to get that done, whether by instinct or by design.
Another warning that we were given was from Nixon’s former counsel John Dean, who knows a little bit about how this tends to play out. He said that a person in the presidency gets smarter and more effective about how to use the levers of powers at their disposal the longer they're in the job. Dean said he watched that happen with Nixon and one of Dean’s cautions to us was you have to stop this kind of autocratic behavior early because the longer he’s in the position, the more he will learn how to do it effectively.
And I have to say, the thing that actually really keeps me up at night is not Donald Trump, who in his incompetence, is somewhat of a gift to us. It’s Trump 2.0, right, and that’s the person who somewhere right now waiting in the wings, who’s observing that “oh, the American electorate is open to this more strongman style of governance, but I can do it better than him.” And unless we take this moment—this opportunity—after Trump, to reinforce the guardrails, when the next aspiring autocrat arises—be it in two years or four years or six, we will be in a much more vulnerable spot.
So one of the other things that we’ve done is we’ve put out something called the Roadmap for Renewal. It’s a legislative blueprint for the new Congress, which lays out a host of reforms that are designed to both repair the damage that has been done and then also to strengthen the guardrails that have been exposed this week. We are now planning to work with the incoming Congress to begin the process of enacting this set of reforms so that the next president can sign them in 2021 in their first 100 days in office.
Do you think this is potentially a turning point where Trump has overreached and the core institutions of American democracy, including the judiciary and including even the Republican Congress, are going to say “this time you have gone too far?” We’ve certainly seen several moments where we thought this was happening, and it didn’t happen.
Well you’re already seeing the president walk away from Matt Whitaker, saying that—as he did on Sunday—that he barely knows him, which clearly seems not to be true. And so I think it’s very possible that Whitaker will find himself somewhere having a drink with [former Supreme Court nominee] Harriet Myers. But even if it doesn’t happen in this instance, I have faith and confidence that the American people, the American Constitution, and the American system can respond to an autocrat like Donald Trump, precisely because we have conversations like this, because we have so many grassroots groups, so many civil society groups that are the antibodies, they are the t-cells that jump in and try to cleanse the body politic when it is infected with a political virus like the autocratic populism we’re seeing today.
I hope you’re right!
Note: This conversation is also available on Robert Kuttner's podcast, Provocations.
This article has been updated.