No one who knows anything about the history of democratic collapse could miss the pattern that is unfolding in America today. Institutions designed to be independent are quickly being brought to heel. Law firms, the media, universities: In case after case, the President is making illegal demands of these institutions, and the institutions are caving. Not fully, or not completely. In each case, they are striking, as the President puts it, “a deal.” But that deal gives the President something in a context where the law would—eventually—say he is entitled to nothing. This isn’t lawfare. This is extortion.
Examples:
- The President sued ABC for defamation. George Stephanopoulos had said that Trump had been found guilty of “rape” by a New York jury. The jury, in fact, had found him guilty of “sexual assault.” The judge in the case clarified that Trump’s actions met a broader definition of rape. Nonetheless, Trump sued for defamation. ABC settled, paying $15M to a Trump-related foundation, and $1M for legal fees.
- The President threatened to withhold $400M from Columbia University, claiming it had violated Title VI by failing adequately to protect Jewish students. The President demanded that the university make important changes in policy, including changes in its curriculum and faculty, to advance Trump’s conception of “diversity.” Columbia has settled with Trump, agreeing to put certain departments under special oversight review, changing its security protocols, and hiring special security officers.
- The President issued an executive order suspending the security clearances of Paul Weiss employees and restricted their access to government buildings and eligibility for federal contracts. The cause of the President’s actions was work done by a Paul Weiss partner investigating Trump’s business practices. Paul Weiss subsequently settled with the administration, agreeing to provide $40M in pro bono legal services to support various Trump administration initiatives.
These threats had no basis in law:
- The defamation claim is bogus: Given the judge’s clarification, it’s not even clear the statement was false; it certainly would not have met the “actual malice” standard required by the law.
- Whether or not a law passed by Congress could give the President the power to withhold funds without any legal process, the actual law does not. An enforcement action based on a civil rights claim requires a hearing and findings. None of that was done here.
- A law firm’s work supporting an investigation into Trump’s business practices is not a legitimate basis for withholding security clearances. And in any case, after all, the man was convicted of felony charges based on his illegal business practices.
Yet despite the President’s threats having no basis in law, each of these targets settled with Trump. They didn’t give him everything he demanded. But they did give him some things.
I don’t doubt that settling was the rational thing for them to do, individually, given the risks and the costs and the struggle. I can certainly understand the desire of ABC to avoid discovery, not because that would change the legal conclusion, but because it certainly would have been embarrassing. Likewise, the costs to Columbia and Paul Weiss would have been significant. The simplest for them, no doubt, was to find a way to simply walk away.
But that rational choice should not be costless for them. When you give in to what you know is an illegitimate threat, you are complicit in that threat. When you allow the extortion to have an effect, you are part of the extortion.
I’m not saying one should never give in. “Your money or your life”: No doubt, hand over the money.
But these institutions were not going to be destroyed by Trump. They would not even have lost to Trump. They would pay a price, a sacrifice for a public good. They chose not to. That choice should be costly.
We’ve seen people fight this President, and accept the costs of that fight. Seven lawyers at the DOJ resigned rather than comply with an unethical order to dismiss an indictment. (Danielle Sassoon; Hagan Scotten; John Keller; Kevin Driscoll; Bradley Weinsheimer; Denise Cheung; and one more unnamed career federal prosecutor involved in the January 6 cases.) The AP is fighting the decision to deny them access to the White House because of its refusal to use the President’s chosen proper noun for referring to the Gulf of Mexico. Maine Governor Janet Mills has refused to give the President a “full throated apology” for her refusal to violate her view of federal law (and she is a pretty smart lawyer), even though the President has threatened to retaliate against Maine for her refusal. CBS is fighting a $20B (with a “b”) action based on the claim that they improperly edited an interview with Trump’s political opponent. (The cause of action is the Texas Deceptive Trade Practices-Consumer Protection Act. Seriously. Real lawyers signed their names to that complaint.)
Those acts deserve our respect. No doubt, they have and will be costly. But by accepting those costs, these people and institutions stand for something that is critical at this moment. The pattern of this President is clear. He is not constrained by the law; he has no respect for the law; he is immune under the law. He is therefore using his power to advance his personal view of what the policy of the United States government should be, in a wide range of contexts far beyond his core constitutional authority.
Congress was meant to be the first line of defense against such lawlessness. That was the framers hope, embodied in a system of separated powers. But partisanship has defeated their plan. There is no Congress jealously guarding its power. There is only an obsequious majority, and a minority that believes it responsible for minimizing the majority’s mess.
Beyond the courage of individuals, all we are left with is the courts. Or more precisely, the Supreme Court.
In theory, given the trend in Supreme Court jurisprudence, one might well have imagined the Court would be an important obstacle. Yes, the Court has signaled it wants to secure more effective presidential control over the actions of the bureaucracy. But it has also crafted extraordinarily powerful doctrines to assure that the President is acting with the approval of Congress. The “Major Questions Doctrine” narrows executive power to act without congressional approval; the demise of Chevron moves in the same direction. These efforts — representing extraordinary judicial activism designed to defend the policymaking process as a process between the President and Congress—would support resistance to Trump.
If, that is, the Court acts in a principled way.
I get that’s a big “if,” and that we have little to support that hope. Recall earlier cases when the Court did act. In 1952, for example, President Truman seized the steel mills to avert a strike that he believed would jeopardize the supply of steel to support the Korean War. 31 days after he took that action, the Supreme Court declared it illegal. No statute gave the President the power to seize industrial property or intervene to avoid a strike, the Court held, and no inherent claim of executive power would support it either. Truman was stopped within a month of his illegal action. In dissent, Chief Justice Vinson was astonished. Who would think that these were the actions of a tyrant or any “dictatorial usurpation”? This was Harry Truman!
The contrast with Trump could not be clearer.
Trump’s strategy is obvious: Long before the election, Steve Bannon had explained it: to flood the zone; to do as much as you can as quickly as you can to assure enough victories to secure an ultimate win. It is a “smash and grab,” as Ezra Klein has described it. An analog version of a DDOS.
Such a strategy can only be resisted by quick and aggressive actions by the Court. Yet so far, it has done nothing. Actually less than nothing: The Chief signaled the attacks on judges had to stop; the attacks on judges only increased.
Decent institutions will resist this, however costly. Some, like Princeton (see Chris Eisgruber’s fantastic essay) will lead that resistance.
Those that don’t are collaborators. Reluctantly or not, they make this extortion possible.
