The Supreme Court Gave Trump Impunity. Congress Has the Chance to Do the Funniest Thing.

Jurisprudence By Enter your email to receive alerts for this author. Sign in or create an account to better manage your email preferences. Unsubscribe from email alerts Are you sure you want to unsubscribe from email alerts for Dahlia Lithwick? Nov 09, 20264:59 PM The misguided Supreme Court decision in Trump v. U.S. shielded the president with this bizarre form of immunity. Photo illustration by Slate. Photos by Ethan Miller/Getty Images and Getty Images Plus. Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. Last week ushered in an electoral sea change in the United States, with Democrats and democracy sweeping to unexpected victories nationwide. But election returns represent a single day and massive democratic repairs are the stuff of years. The real work, to be sure, begins now. On this week’s Amicus podcast, Dahlia Lithwick spoke to Ian Bassin of Protect Democracy. Bassin served as associate White House counsel during the Obama administration. Along with a handful of other former administration lawyers, he founded Protect Democracy in late November of 2016 to prevent American democracy from declining into an authoritarian form of government. He’s been a stalwart voice for democratic revival and repair over his years on the podcast. A portion of their conversation has been edited and condensed for clarity below. Dahlia Lithwick: Everyone and their mom and their cat is making proclamations about what the Dems have to do right now, the second they’re sworn in. What are the things we need to do in terms of immediate repair? Ian Bassin: I think that there’s a couple of things that are going to be on the immediate agenda. Exit polls showed there is public outrage about corruption, and that corruption drove so much of this voting behavior. The Democrats now have the opportunity in Congress to serve as a check against it. I don’t think voters are just going to want hearings for hearings’ sake. They don’t want subpoenas and “lawyer up” for subpoenas’ and lawyer up’s sake. The purpose of oversight generally is to expose corrupt behavior so that voters can then respond to it. The corrupt behavior is known, the voters responded to it. So now, what those oversight committees need to do is go get the money back. Because what we’ve witnessed over the last two years is just a splurge of corruption and a splurge of the president and his family and his allies enriching themselves at the expense of American taxpayers unlike anything we’ve seen in U.S. history, and the American taxpayers are entitled to get that money back. The misguided Supreme Court decision in Trump v. U.S. basically shielded the president with this bizarre form of immunity that exists nowhere in the Constitution—meaning it’s very unlikely you’re going to see something like a Jack Smith–type criminal prosecution in the future. The president’s already said he’s going to pardon everybody on the way out the door. So let’s set criminal accountability aside for a minute. What pardons and criminal immunity cannot do is they cannot protect those ill-gotten gains from unjust enrichment claims brought by a future attorney general. They cannot protect ill-gotten gains from civil asset forfeiture claims brought by a future attorney general. A future attorney general who wants to go get the American taxpayers’ money back from where it’s been stolen can do so. The key, I think, for the oversight committees will be to really preserve a record of where all that money went. We’re talking about billions of dollars that have been stolen in corrupt ways from the American people, or stolen based on the improper use of public office. The House Oversight Committee and the Judiciary Committee need to try to document the answers to questions like: Where did that money go? Who took it? And under what premises did they take it? So that a future attorney general, if there is one willing to do it, can follow that money trail and go get the American people’s money back. That’s a big piece of what Congress should be doing over the next two years. People need to understand that Congress won’t be able to get money back itself, but they’ll be able to document the evidence so that a future attorney general can. Now, I don’t want to burst the balloon of euphoria of this past week’s pro-democracy victories, but Donald Trump is still the president, and what I fear is that he still has at his disposal the Department of Defense, the Department of Homeland Security, the Department of Justice, and the FBI. I would expect him to continue to use those in abusive ways to try to persecute people for exercising their freedoms. So I don’t think that we’re done with defending civil society and the First Amendment from his authoritarian instincts. Obviously there’s plenty more that will need to happen over the medium term, and I would put those things in four categories. One is the structural reforms to bring our democracy up to the modern era. In so many ways, we have a democracy that’s structured in ways democracies were in the 19th century or earlier. So we should be looking at ways of better representation in our legislatures. At Protect Democracy, we’ve argued for proportional representation. We’re going to continue to do that. The second is that A.I. continues to be just a massively disruptive and consequential technology, and if we don’t figure out how to metabolize it in a way that is pro-democracy and not pro-authoritarianism, that’s going to be another significant challenge for us, and we need to work on doing that. The third is that this week was a profound showing of civic engagement, but Bob Putnam was right 30 years ago when he said we’ve lost a lot of the civic muscle of how we navigate differences in a constructive way in American society. Some of the backsliding we’ve experienced recently is because we haven’t been exercising our small-d democratic muscles, not just at elections, but throughout the year, and I think there’s going to have to be a re-exercising of those. The fourth category is the social contract through which Democrats and Republicans, progressives and conservatives, argued over the last 40 years, which is very much a neoliberal worldview. That is over. There will be a new space in which we will be having debates and policy debates and political debates over the next five, 10, 20 years, and I don’t think its contours have been defined yet. I think it’s up to us to define them in ways that reflect a social order and compact that we would want to bequeath to our children’s generation. That is the work that lays before us. I’m old enough to remember the last time we tried to do accountability, and we got stonewalling. Investigations and democratic oversight were met with people just not bothering to show up for contempt hearings, and talk of tiny jails in the basement at the Capitol. How does that change this time, especially with the specter of mass pardons? Is there really a way to enforce the kinds of compliance that would allow us to find accountability? One thing that is both a blessing and a curse of the era we’re in is that there’s a pendulum that swings, a dialectic that takes place. So much of what has happened in Brazil has mirrored what has happened in the United States and vice versa. It sort of pings back and forth, where one country tries to hold a coup-plotting leader accountable, fails, and the other country then says, “Oh, we’d better do that better,” and then they do it, and they succeed. So I think we’re learning from the last go-round. That means some of the incoming chairs of oversight committees have already been preparing for how to counteract the defenses that were thrown up last time. I know that planning has been underway. I also think the way the election shook out changed the political landscape. Everything that happens next is bargaining under the shadow of that political landscape. The 50-50 split that we were in the last time meant that both sides felt of equal weight and power, not just in the legal claims they were making, but in the overall gestalt of what they were bringing to the table was evenly matched. That is no longer the case. The president is now the lamest of lame ducks. You’re already seeing a fracturing within the Republican coalition, where a large part of that coalition is going to be looking at 2028 and what they need to do to move past the Trump era. Trump himself and some of his loyalists are not going to want to do that. That fracturing is going to make the stonewalling that they tried the last time around much more difficult, because there will be portions of that coalition that want to turn the page. It’s been said on this show before that it will take a generation to repair the damage to the DOJ, the damage to the idea of an independent Justice Department. I don’t want to have an intramural debate about the Merrick Garland approach of We’re just going to ignore what’s happened and behave impeccably. Can we start to repair without relitigating everything that’s happened? And what would repair at the DOJ look like? We did some research in the fall of 2020, in the lead-up to that election, on what history and international experience taught about emerging from an autocratic moment with gross abuses of power at the highest level. Are you better off, as a country, turning a corner, saying “kumbaya,” looking forward not backward? Or is accountability critical to preventing recurrence? We went into that project agnostic. We tried to study what people had learned around the world and over time. The results were pretty convincingly on the side of: If you don’t have some form of accountability for abuses of power, they’re more likely to recur. I think in some ways there were things that went well on that beat. We did a lot of work on the January 6th Committee. I thought it did a pretty strong job of trying to record the truth of what had happened. We don’t have to get into the Merrick Garland situation, but that obviously went way too slowly, certainly if you compare it to what happened in Brazil or South Korea. So what I would hope is that we don’t learn the wrong lesson from what happened between 2021 and 2024 and conclude that any form of accountability is undesirable because it just strengthens the outgoing autocrat. I think that would be the wrong lesson to learn. It’s not the lesson consistently from around the world. Just look at what has happened recently in Brazil for a counterexample to that claim. I do think we will have to navigate it carefully and make sure that we are turning a corner without perhaps turning a blind eye to what has been done in this country in the last decade. I’m hopeful that if we do all the things I listed before, in my very long answer of what needs to happen next, that we will have a very good shot at raising a fourth wave of democracy. You mentioned Trump v. U.S., the immunity decision, and its lasting slipstream in terms of what can happen next. What are the possible correctives for a Supreme Court decision that all but created a monarch? And maybe as part of that answer, help me think through whether that means we need to fix the court itself. We definitely need reforms to the Supreme Court, and my rule of thumb on reforms to the court has been a veil of ignorance test, which is that there’s a lot of support out there for a bevy of court reforms that run all the way from Elizabeth Warren to Steve Calabresi, the founder of the Federalist Society. Those reforms are not left or right, because, as John Rawls argued in A Theory of Justice, they are decisions that you would make not knowing whether it was going to benefit or harm your side. I think a growing portion of people from different ideological and political stripes think the founders did not imagine lifespans being as long as they are today, and think that someone could be confirmed to the court at the age of 35 and potentially serve until they’re 100 years old and be on the court for 65 years. There’s all sorts of reasons why you would want people on the court who are a little closer to having not been in the cloistered life that a justice leads for 60 years, and why you would not want the replacement of justices to be artificially timed to guarantee that one could be succeeded by their chosen successor. I think you can probably get some pretty broad agreement across the political spectrum for the notion of having 18-year terms, after which justices rotate and ride circuit, and every president gets two appointments to the court, taking down the temperature of the confirmation battles. It would need to be done in a way that isn’t designed to give one side or the other a guaranteed majority, but are sensible reforms to bring the court back in step with the fluctuations of the American people. When you do that, you might eventually get some revisiting of some absurd decisions like Trump v. U.S. It was 16 years between Bowers v. Hardwick and Lawrence v. Texas, so maybe it’ll be less between Trump v. U.S. and restoring some rule-of-law, no-kings principle to the Constitution. Congress Democrats Donald Trump Jurisprudence Supreme Court 2026 Midterms