In the tumult of distractions and insults fomented by the Trump administration, it’s hard to know where to focus one’s anxiety. But there are two cultural institutions so central to my adult life and instrumental in shaping who we are as a society that to see them under systematic assault prompts personal pain: the legal bar, and higher education.
More than a dozen major law firms have come under attack by Trump and his minions, among them Paul Weiss, Covington & Burling, and Perkins Coie. His recent executive orders have threatened to withdraw their lawyers’ security clearances, restrict their access to federal buildings, and cancel their firms and their clients’ government contracts. Like any group of good lawyers, Perkins Coie, which worked for Hillary Clinton’s presidential campaign, is suing. But Paul Weiss has capitulated.
What exactly were the sins of Paul Weiss that merited Trump’s censure? The firm did pro bono work on a lawsuit brought by the D.C. attorney general’s office against individuals who stormed the U.S. Capitol on Jan. 6, 2021. And one of its former partners worked on an investigation at the Manhattan district attorney’s office into Trump and his businesses.
Paul Weiss has capitulated to Trump’s vendetta by agreeing to give $40 million in legal services to his supposed pro bono (“for the good”) causes (though one might well ask whose good is being served), to renounce any DEI hiring policies, and to issue a statement affirming that it would represent clients regardless of their political affiliation. One can only imagine the quality of the legal services that will result from Trump’s extortion, and the pledge to represent clients regardless of their party affiliation is either meaningless drivel or a sub rosa loyalty oath, but in either case deeply unworthy of a great law firm whose history stretches back more than a century.
I came of age professionally in a New York law firm very much like Paul Weiss, one that bore the name of Thomas Dewey, the Republican governor who famously did not defeat Truman. And while I fully realize that the practice of law in a place like that, once a haven of professional collegiality, has become just another profit-driven business, it’s tragic to see a partnership of men and women of the highest intellectual caliber and professional training so quickly brought to heel by a self-interested thug with so little of either.
To its credit, much of the big firm bar has reacted with overt dismay to Paul Weiss’s knuckling under, and the American Bar Association condemned Trump’s efforts attacks on major law firms, stating that these moves “deny clients access to justice and betray our fundamental values.”
Meanwhile, Columbia University, where I graduated from law school, was threatened with the withdrawal of $400 million in grant money by Trump’s soon-to-be-gutted Education Department, ostensibly because it hadn’t done enough to constrain students’ exercise of their First Amendment rights.
In response, Columbia has agreed to hire a new internal security force that will be empowered to remove people from campus or arrest them. The wearing of face masks on campus will be banned (with exceptions for religious and health reasons). And perhaps most troubling, Columbia will also adopt a formal definition of proscribed “antisemitism” that includes “targeting Jews or Israelis for violence or celebrating violence against them” or “certain double standards applied to Israel.”
Where are the lawyers to point out that even the crassest verbal “celebration of violence,” in which Trump himself engaged on January 6, 2021, and often since, is protected by the First Amendment, or that “certain double standards” is a phrase utterly void for its vagueness? Because make no mistake, when political anti-Zionism is conflated with personal antisemitism, when criticism of the current Israeli government, or chanting the phrase “from the river to the sea” while camping on the quad and wearing a mask (or not) becomes ritually equated with criminality, we are on a very short road to the suppression and control of all kinds of inconvenient or uncomfortable political speech to an extent that we have never before tolerated in this country.
Columbia isn’t alone, of course. Harvard, Stanford, the University of Michigan and dozens of other schools face federal inquiries and fear similar penalties. The University of Pennsylvania was also targeted when the Trump gang said it would cancel $175 million in the university’s federal funding, ostensibly because it had let a transgender woman participate on a women’s swim team (which as we all know would destroy higher education as we know it if allowed to continue).
In my home state of Ohio, the Republican-dominated legislature has passed a bill that prohibits state colleges and universities, including but not limited to “The” Ohio State University, from engaging in any and all forms of DEI (which the bill gutlessly, and probably unenforceably, recites as “diversity, equity, and inclusion” — lower case — throughout, an absurd textual overreach of its presumed target ideology). The law requires that state universities adopt a new policy declaring that they will not “endorse or oppose, as an institution, any controversial belief or policy, except on matters that directly impact the institution’s funding…” and provides the uselessly circular definition of a “controversial belief or policy” as “any belief or policy that is the subject of political controversy, including issues such as climate policies, electoral politics, foreign policy, diversity, equity, and inclusion programs, immigration policy, marriage, or abortion.”
And to make sure these culture war dog whistles are obeyed by the academic dogs, the new law prohibits faculty strikes and requires that a syllabus for each course taught at the institution must be posted on the university’s website for all to review and, inevitably, criticize. The syllabus must contain the name and contact information of the course instructor, his or her professional credentials, and a list of all required and recommended readings for the course, effectively subjecting, by law, every professor and college course to online harassment. Even tenured professors are to be subjected to what amounts to ideological review, including an evaluation that pointedly asks, “Does the faculty member create a classroom atmosphere free of political, racial, gender, and religious bias?” Imagine the history professor about to give a lecture about the Civil War, Roe v. Wade, or Martin Luther King’s career as she ponders that one.
We all need to take a role in resisting these attacks on others’ First Amendment rights, because while the subject matter of the suppression may seem removed from our personal concerns, the model of suppression can be applied to much that we hold most dear.
But the more immediate question is: where is the institutional leadership that should be rejecting these attacks by any and all means?
Since when does a law firm — or an individual lawyer — get told who they can and can’t represent, or how it is to go about hiring its lawyers? Since when does a great private university get told how to manage its private property and its student population? In the case of Ohio, since when do partisan political ideologues get to police the course offerings and academic culture of a self-governing public university system?
Since when does a US government official, much less the president of the United States, get to dictate written statements that must be uttered by its citizens on pain of political and financial punishment?
The short answer is never. Columbia University should have said, “keep your money, and we’ll keep our principles. We have a huge endowment and a wealthy and committed alumni. We can replace your $400 million in six months and run our private university without your interference, thank you. Come back to us when you need another Manhattan Project accomplished for you.” (Poor Ohio State, entirely under the heel of the state legislature, has no such resort, but solidarity among institutions of higher learning on these principles might keep the partisan hacks outside the college gates.)
Paul Weiss should have said, “sorry you don’t like some of the people and causes our lawyers have represented. That’s their right — indeed, often their duty — under the Constitution and our system of laws, not of men. Go ahead and withdraw our security clearances and contracts; we’re much smarter and more agile than you can conceive, and we’ve got lots of other ways to make money. And if you go too far, we’re better at the law than you’ll ever be, and we’ll beat you in court. We’ll see how this ruthless ‘meritocracy’ that you’re so devoted to works then.”
It’s our great institutions, and not random crowds with placards in the streets, that must bear us up and across the great political and cultural chasm that we’ll face over the coming years, till the inevitable backlash takes hold and we recover something of a national equilibrium. But institutions like the legal bar and higher education (not to mention the military services, medicine, and the arts) are nothing but vast, intense, ongoing collaborations among individuals, led by those who have reached the supposed pinnacle of their professions. We should demand that those leaders stand and shout an unequivocal “no” to the manipulation and suppression of our most important freedoms.
Keith, what makes the bent knees at Columbia and Paul Weiss particularly appalling is that the threats made by the Trump administration were not existential; neither the university whose endowment is around $15B (yes, that is right, Billions) nor the law firm, whose profits per partner exceed $7.5M (yes, that is right Millions) would not have been faced with closure, ruin or even substantial discomfort by standing morally firm against these threats.
I don’t fear for Columbia or Paul Weiss (nor do I condone or have any sympathy for their actions). I worry about the small liberal arts colleges that are the backbone of higher education in this country for whom state and federal funding cuts, the divisive polarization and demonization of higher education are existential. I worry about smaller law firms and solo practitioners that represent individuals in their quest for civil and criminal justice for whom such threats (yes, that is right, Threats, as that would be all it would take as these firms do not have the spare change to litigate with the federal government over such issues) would likely mean capitulation or taking down the proverbial shingle. These smaller, but much more critical and ubiquitous institutions have more at stake than the big guys, and they are, in my view, Trump’s intended audience. And they are paying attention.
What the Trump administration is doing is essentially performative, and Columbia and Paul Weiss are, regrettably, as Jaques, in “As You Like It” so notably observed, “…merely players.” So sad that these two institutions failed their part—and us.
Wholly agree, Ken, thank you for this.