We all learned long ago, perhaps on the playground, that giving in to a bully only makes things worse. That is why it is shocking to see capitulation on the part of those being illegally bullied by President Trump. This will only embolden him.
On Thursday and Friday, a law firm and Columbia University surrendered.
Trump said Thursday that the national law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP had reached a settlement with his administration. A week earlier, the president had issued an executive order, “Addressing Risks from Paul Weiss.” that revoked security clearances for all lawyers in the firm, ended its government contracts with the firm and limited access to government buildings for those working at the firm.
Why was Paul, Weiss targeted? The primary reason given was that one of its former partners worked in the Manhattan district attorney’s office and was part of the legal team that investigated Trump in the case that later resulted in his prosecution and conviction on business fraud charges. Also, the executive order says that a Paul, Weiss lawyer represented clients suing Jan. 6, 2021, rioters.
This is nothing but blatantly illegal retribution. A federal judge in issuing a temporary restraining order against a similar Trump executive order directed at the law firm Perkins Coie, which had represented Hillary Clinton, said that action was an “extreme, unprecedented effort” and that it “casts a chilling harm of blizzard proportion across the entire legal profession.” The law is clear that lawyers are not to be punished for representing clients or for their lawful advocacy.
But Trump on Thursday said he was withdrawing the Paul, Weiss executive order and in exchange the firm would contribute $40 million in legal services to causes Trump has championed, including “the President’s Task Force to Combat Antisemitism, and other mutually agreed projects.”
This obviously only emboldens the president to target more law firms in shakedowns.
As of Friday, Columbia University has agreed to the same type of capitulation. On March 13, the Trump administration announced it was cutting off $400 million in federal money to Columbia citing “continued inaction in the face of persistent harassment of Jewish students,” especially as to pro-Palestinian protests that occurred last spring.
Such a cut in federal funds is illegal in many ways. The federal government’s claim was that Columbia violated Title VI of the 1964 Civil Rights Act in not adequately responding to a hostile environment against Jewish students. But Title VI requires “an express finding on the record, after opportunity for hearing” of failure to comply with the statute, as well as “a full written report” submitted to House and Senate committees at least 30 days before a cutoff takes effect. There was no hearing, no finding and no report by the Trump administration.
The legal standard under Title VI is that a recipient of federal funds must not show “deliberate indifference” to a hostile environment. Not only was there no such finding, given Columbia’s ultimately aggressive response to the pro-Palestinian demonstrations last spring, it is not plausible to say it was “deliberately indifferent.”
Also, as the Department of Education previously has made clear, a university cannot be required to stop speech that is protected by the 1st Amendment. That would be unconstitutional. Yet Columbia is being punished for adhering to that requirement.
Let’s say Columbia had been found to have violated Title VI. The law says that the remedy, cutting off funds, must be “limited in its effect to the particular program, or part thereof, in which noncompliance has been so found.” Instead, the Trump administration apparently planned to cut off funds affecting a broad swath of the university’s programs, including the medical school, which was far removed from the protests.
Columbia had every reason to file suit, challenging the order. Instead, it conceded, amid claims that there was overlap between what Trump wanted and reforms it was already considering. The Trump administration’s demands included changing Columbia’s admissions criteria, establishing rules related to protest that could restrict student speech and putting Columbia’s Middle Eastern, South Asian, and African Studies department under academic “receivership” for at least five years, taking control away from its faculty, a potential violation of academic freedom.
Choosing to make a deal rather than fight the president is understandable. Litigation is expensive and can be protracted. The president’s attack could seriously damage Paul, Weiss and Columbia; they want their nightmare to be over and giving in to the president seems the fastest way to accomplish that.
But both the university and law firm have substantial resources to challenge the Trump administration challenges, and their capitulation will have enormous costs for other schools and law firms, some with fewer resources, as the president determines his next targets. Trump has taken a page from the playbook of all dictators: govern by fear and intimidation.
If democracy is to survive, though, it must be because the illegal and unconstitutional acts of the Trump administration are stopped. That requires that those targeted fight back.
Erwin Chemerinsky is the dean of the UC Berkeley Law School. His latest book is “No Democracy Lasts Forever: How the Constitution Threatens the United States.”
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