Former Obama lawyer Ian Bassin: The coming indictment of Donald Trump will break his power

For the last seven years or so, the American people have been on an emotional and political rollercoaster. The ride has been terrifying. They elected Joe Biden president in 2020 in an effort to escape the thuggery, violence and pathological lies of the Trump era, but Donald Trump and the Republican fascist movement made that impossible. America's democracy crisis as epitomized by Trump's coup attempt and the Capitol attack of Jan. 6, 2021, has not ended.

More recently, the American people again attempted to get off the rollercoaster by turning back the Republican "red wave" during the midterm elections. But this too is just a brief reprieve; the Republican-fascist movement is in no way deterred. Only days after the midterm elections, Donald Trump formally announced his 2024 presidential campaign. Too many political observers responded to Trump's renewed threat with mockery and derision, which is in an example of what psychologists call "defensive contempt." This is a phenomenon where laughter is actually an expression of denial mixed with deep-rooted fear.

Three days after that, Attorney General Merrick Garland announced the appointment of a special counsel to oversee the Department of Justice investigations into Donald Trump's numerous alleged crimes, which include the Mar-a-Lago documents case, the Jan. 6 insurrection and the larger conspiracy to nullify the results of the 2020 election.

Garland's announcement was greeted by a range of reactions. Some observers have expressed consternation at what they see as yet another sign that Trump will again escape justice, as he has throughout his decades of public life. Other more hopeful voices believe that Garland's appointment of career prosecutor Jack Smith as special counsel is another sign that Garland and the DOJ have already decided to indict Trump for his crimes, and the question is not if but when that will happen.

In an effort to assess America's ongoing democracy crisis and the country's emotional life more broadly, I recently spoke with Ian Bassin, co-founder and executive director of Protect Democracy, a nonpartisan nonprofit organization working to stop American democracy from declining into authoritarianism.

Bassin previously served as associate White House counsel in the Obama administration. His essays and other writing have been featured by the New York Times, the Washington Post, the Los Angeles Times, The Atlantic and other leading publications.

In this conversation, Bassin explains how he is managing his hopes and anxieties in this turbulent and challenging time for America. The crisis of democracy that Donald Trump represents, he cautions, is part of a much larger global phenomenon that will not end anytime soon. The midterm elections, he agrees, offered a strong sign of hope for American democracy — but Trump, the Republican fascists and their larger movement represent a base of many millions of voters, and they're not going away.

Toward the end of this conversation, Bassin explains his belief that Donald Trump will be successfully prosecuted for his crimes by the Department of Justice and other law enforcement agencies. While other experts have warned that Trump supporters will engage in widespread violence to prevent their Great Leader from being held accountable for his crimes, Bassin believes that will not occur.

Donald Trump's prosecution and trial, Bassin suggests, may actually break Trump's base of support and help bring an end to his reign as one of the most dangerous people in recent history.

The Democrats and the American people got some breathing room with the victories in the midterms, but Trump and the Republicans are not stopping their assault on American democracy. Merrick Garland has just appointed a special counsel to investigate Trump instead of directly prosecuting him. The Republicans will take control of the House in January and are telegraphing the theatrics they may unleash. How are you managing your emotions right now? 

There are going to be vicissitudes and setbacks on a day to day and weekly basis. We are going to have ups and downs. But if you overreact to any of those you will lose your balance, your focus and ultimately your path. To that point, the path that I think we need to stay on as a country is toward a stronger and more inclusive democracy. I believe that we can get there. But at present we are going through some extreme turbulence in our nation's journey to that destination.

There was a real chance these midterms were going to make our democracy much sicker, with election-deniers poised to oversee the 2024 election in multiple states. But that didn't happen and, as you say, for that we can breathe a sigh of relief.

There is a dominant narrative that the midterms were a win for "democracy." Looking at exit polls and other data, that conclusion seems a bit exaggerated. Moreover, the Republicans now control the House, and more than 200 election deniers will soon be in office across the country, Trump is running for president, the Republicans are not deterred, and it does not seem that democracy was a main concern of most voters. How do you make sense of these countervailing forces?

We should be able to hold two truths in our minds simultaneously. We are living in an era of global democratic recession. The United States has not been immune to that trend. The evidence is clear that the quality of American democracy has been declining precipitously over the last 15 or so years. We have to understand that we are living in a moment of real danger for democracy, regardless of what happens in any given election. This is a 15-year trend. The challenge is not ending in the next three months or next year. The great political orders of history have all at some point come to an end, and the way it can happen here is if we convince ourselves that it can't.

Here is a second truth: As much as we are experiencing rising authoritarianism here in the United States with Trumpism and the Republican Party's turn against democracy, we are not Venezuela or Hungary or Turkey. We are the world's oldest continuous democracy. We do have stronger democratic traditions and institutions than those countries and others that are succumbing to illiberalism and authoritarianism.

American exceptionalism is going to make us more resilient than Turkey or Brazil, for example. As we saw with the midterms, there are radical extremists in the Republican Party who are running on a platform of election denial, the Big Lie and pledging that if they are put in office, Republicans will never lose an election again. Right now, a person who attempted a violent coup to stay in power illegitimately is the frontrunner for the Republican nomination, which in a 50-50 country puts him a coin flip, give or take, away from achieving power again. And if he does that, he's already made clear he doesn't intend to relinquish that power so long as he lives and breathes on this earth.  

Which Americans are rejecting democracy? Being specific about that is an important intervention against the dominant narrative about the midterms, which takes it as a given that the "American people" defended democracy. There are tens of millions of Americans who do not believe in multiracial, pluralistic democracy, or who reject democracy if they are not the dominant and most powerful group.

If you look at the United States and other Western-style democracies, there has always been a not-so-insignificant number of people who are xenophobic, racist and generally antidemocratic. But in modern times they are typically marginal groups, consisting of 7%, 8% or, at most, 15% of voters. But then there are moments when those factions build coalitions with more mainstream constituencies who may not openly harbor the same extreme and noxious views. Together they create a much more powerful political bloc.

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That's what has happened here. Trump cultivated a really revanchist, antidemocratic, extremist base, a base that is against democracy unless it puts their side in charge. And Trump brought this base into coalition with mainstream Republicans. Mainstream Republican elites thought they could ride the energy around Trump to power and then sideline him, but they were wrong — just as interwar leaders in Germany and Italy made the same miscalculation. Now the Republican Party is largely driven by Trump's base. Unfortunately, this coalition does not need to get a majority vote in order to get power because of the structural features of the American political system, such as the Electoral College, the Senate, how the primaries work and gerrymandering. 

We've seen that anybody who tries to stand against Trump and that anti-democracy base is drummed out of the Republican Party. As for the midterms, it will take more research to see if the American people were rejecting Republican extremism or if they were truly defending democracy.

You worked in the Obama administration. How did it feel to watch the country go from Obama's presidency and all the good that it symbolized and accomplished to the white supremacist backlash of Jan. 6 and the Age of Trump? How do you locate that in a larger context?

When I was an organizer on the Obama campaign back in 2008, I was struck by how optimistic and hopeful I was back then. There was a sense of energy and inspiration during Obama's presidency and that first campaign that we do not have in America right now. We were looking at the future as one of possibility, unity and overcoming our darkest demons as a country. That's not the feeling in America today.

The feeling in America today, I think, broadly is a negative one about the future. This is understandable given the range of huge challenges and crises we are facing, from global climate disaster to globalization, extreme income and wealth inequality and the corruption of our democracy that we have seen in recent years, including Jan 6 and the violent attack on the Capitol. Demagogues and strongmen feed on moments like this of darkness and despair. We need to find a way to see through the clouds to a blue sky again.

How do we explain to the general public that Donald Trump is a symptom of a much larger and deeper systemic, institutional and societal crisis? Donald Trump will go away at some point, but what Trump has given permission for will be here for a very long time. America's democracy crisis is a decades-long challenge.

It's important that we all recognize that Trump is a symptom and not a cause, and that we have been experiencing a global recession of democracy. People are attracted to these strongman demagogue figures because they take advantage of people's grievances and fears. There is also a deep fear of societal change. Trump may go away, but we can already see in the Republican Party people who are trying to copy him.

When you recognize that autocrats are deploying this playbook in multiple countries right now, it becomes easier to see Trump as part of a trend. That trend didn't start with one person, and won't end when any one politician goes away. It's playing on a wave of global discontent. 

We have to recognize that this is problem goes well beyond one person. One of the primary ways that these demagogic authoritarian leaders thrive is by making people feel that things are hopeless and that the Great Leader can protect them.

What does real justice demand in terms of holding Donald Trump and his regime accountable for their many obvious crimes?

One of the primary drivers of the democracy crisis that we are struggling through is a sense that the system we'd been promised — the American dream, equal justice under law — is a lie. To be fair, there are communities in America who have perceived that for a long time, but in recent years that perception has spread far more widely. After the 2008 financial crisis, one of the most salient public opinions was that those who had played by the rules had fallen behind, and those who'd cheated had gotten ahead. And worse still, that the cheaters — who never got prosecuted — were getting away with it, while those who didn't rob the country blind were losing their homes. 

Anger over the feeling that there is a different set of rules for the powerful than for the average person was something Trump played on to great success in his 2016 campaign. It's why "Lock her up" was such a rallying cry for his followers.

Fast forward to today. Who has been punished for the crimes of Jan. 6? The foot soldiers. The little people. Not a single one of the political leaders who inspired and commanded the insurrection has faced any criminal legal consequences. If that stands, such an outcome will cement the perception that there are two sets of rules in America, one for the powerful and one for everybody else. That may be the hammer that drives the stake all the way through the heart of our democracy.

If Donald Trump can flagrantly break the laws of this country and get away with it, then we will have proven the Putins and the Trumps and the cynics of American democracy correct, and it's hard for me to see how we recover a belief in our system after that. 

Why isn't Donald Trump in jail yet? If he were an everyday American — never mind if he were Black or brown or Muslim — he would have been prosecuted, put on trial and convicted a long time ago.

I have some hope and optimism about our system working the way it's supposed to. It is obviously unprecedented to prosecute a former president. There are real dangers that once you cross that line, you increase the risk that future administrations will seek to prosecute their predecessors, sending us into a democracy death spiral. 

It is therefore appropriate for the attorney general and the Department of Justice to be extremely careful to ensure that the investigation is carried out by the book and that if they are going to indict a former president, the case is rock solid. If DOJ prosecutes and Trump is acquitted, that would be the worst of all worlds.

Moreover, Donald Trump has operated throughout his career like a mafia boss. He knows how to establish plausible deniability for the most egregious of acts. So it may not be easy to get a conviction, even considering how obvious some of his crimes have been. But Garland is taking care on both fronts. He's using mafia prosecution strategies to try to flip lower level capos to turn on the boss. And now, by appointing a special counsel, he's further insulating any prosecution from charges of political bias.

At the end of the day, I believe the Department of Justice will indict the former president. Every data point we have points in that direction. They are simply trying to do so in a way that is careful and likely to succeed. 

Considering the magnitude of Trump's alleged crimes, what would be appropriate punishment? What of the argument that putting Trump on trial for his crimes will cause more chaos and violence, and that the more prudent course is not to prosecute him?

Justice looks like Trump being treated the way anybody else would be treated if they were put on trial and convicted of the same things. In our federal justice system, there are sentencing guidelines that judges use when a defendant is convicted. These guidelines tell the judge what the range of an appropriate sentence should be, and what the relevant factors are to consider in deciding where to place the sentence within that range.

One factor that does not exist in any of those guideline documents is the political power or political popularity of the defendant. Justice requires that Trump's power and popularity are not taken into account in terms of sentencing or prosecution. In fact, the United States Attorney's Manual includes explicit guidance that a defendant's political popularity may not be a reason for not indicting someone who otherwise has violated federal criminal laws and should be indicted based on other legitimate considerations of prosecutorial discretion. Concerns about what may happen in terms of protest or unrest if a political figure or some other public figure is indicted can't be a reason not to indict in any civilized nation. Otherwise you wouldn't have the rule of law, you'd have rule by mob.

I am of two minds about Donald Trump being tried and convicted for his obvious crimes. In a just world, he would be prosecuted to the maximum extent of the law. If imprisonment is an option, he would be put in a Supermax prison or some other site deemed appropriate for his crimes and the danger he represents to the public. But in the world as it exists, it is more likely that Donald Trump, assuming he is even prosecuted, will accept a plea deal if his ego allows for it. Or that he will have a jury trial and one of his MAGA followers will nullify the verdict. I do not believe it at all likely that Donald Trump will ever be properly punished for his lawbreaking. The system will not permit it.

Given this nation's track record, it's understandable why you have those doubts. But we actually have done this before. No, we haven't prosecuted a former president, but our laboratories of democracy — the states — have prosecuted countless former governors. You know what happens when they do? At first, the political party and the supporters of the indicted governor cry foul. They scream, "It's a political witch hunt! It's a partisan prosecution!" They threaten to retaliate. The supporters of the governor reject the legitimacy of the whole enterprise.

But what happens as the prosecution plays out and the trial proceeds and the evidence is put on? Support for the indicted and ultimately convicted politician dwindles. It's the process itself playing out, the wheels of justice grinding along, that ultimately brings repose to situations that, at the outset, seemed so explosive. 

If our laboratories of democracy have a lesson for us here, it's that ultimately, the American people will accept the results. What I fear they won't accept, and what I fear our democracy cannot survive, is a president claiming that he could shoot someone on Fifth Avenue and get away with it, and being proven right.