Resistance is not futile

Harvard is demonstrating that bullies don't like to get hit back.

A scene from a Harvard Square rally last week. (Joseph Prezioso/AFP via Getty)

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Barack Obama recently said, “It has been easy during most of our lifetimes to say you are a progressive or say you are for social justice or say you’re for free speech and not have to pay a price for it. Now we’re at one of those moments where, you know what? It’s not enough just to say you’re for something; you may actually have to do something and possibly sacrifice a little bit.”

Donald Trump’s ambitions are clear: To transform our nation from a democracy into an authoritarian state. Since taking office, he and his cronies have set out to render ever greater portions of the federal government into a pliant tool for his dictatorial ambitions, including through frontal attacks on the justice system and due process. But Trumpers also recognized from the outset that, to complete the destruction of America’s traditions of pluralism, free expression, and civil rights, they must bring to heel entities and organizations outside the government that have long been protectors of free expression and the freedom of inquiry.

John Roberts created a monster. It's about to eat him.

In assaulting the private sector and civil society, Trump and his crew are following in the footsteps of other contemporary authoritarian leaders, such as Hungary’s Victor Orban and Turkey’s Recep Tayyip Erdoğan, who have focused on destroying (or at least coopting) civil society institutions in their countries.

Trump moved fast in his assaults on key non-governmental realms, implementing what initially seemed to be remarkably successful efforts to render corporations, lawyers, and educational institutions into stooges, answerable only to the Leader and his cronies.

But suddenly — signaled by resistance from the nation’s most elite universities — the weaknesses of the nascent Trump authoritarianism, and the potential for resilience within our nation in the face of his lawless assaults, are coming into focus.

Trump’s appeal to billionaire greed

In August 2021, conservative New York Times columnist Ross Douthat expressed admiration for Orban’s capture of Hungary’s media — which is now (profitably) controlled by his cronies — and expressed hope that the American right could also bring the “consolidated media and tech powers” to heel.

As it turned out, Trump did not even have to deploy his usual toolkit of threats and coercion to get Silicon Valley’s masters of the universe to become his pliant servants. Many tech billionaires became angry with Joe Biden’s efforts to require them to (heaven forbid) pay taxes. They also took umbrage at the Biden administration’s cheeky efforts to impose elemental regulatory guardrails on their media and technology companies.

Jonathan Taplin on our new Trumpian oligarchy

Following the lead of two white children of Apartheid era South Africa, Elon Musk and Peter Thiel, many Northern California plutocrats who had previously been largely apolitical (or liberal Democrats) found new political homes in the GOP. Predictably, companies controlled by those tech bros made rapid about-faces in favor of Trumpism, most notably Mark Zuckerberg’s Facebook/Meta, which gave up its policy of attempting to limit the proliferation of disinformation and welcomed the publication of lies from rightwing extremists.

Likewise, Amazon founder Jeff Bezos — whose company had spent much of Trump’s first term litigating against bias in the award of government contracts — turned the newspaper he owns, the Washington Post, over to the leadership of rightwing Murdoch associates, prevented the paper from endorsing Biden, and devoted its opinion pages to singing the praises of “personal liberties and free markets.” Meanwhile, other journalism outlets owned by large corporations — including ABC and CBS, the latter of which will soon be controlled by the family of Silicon Valley billionaire Larry Ellison — began falling over themselves to pursue transparently corrupt “settlements” of bogus Trump lawsuits, thereby funneling cash into his pockets.

On Inauguration Day, a phalanx Silicon Valley billionaires assembled to pay fealty to Trump, demonstrating by their presence that the nation’s most powerful communications industry is now on the Trump train.

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Fresh off his successful stoogification of Silicon Valley, Trump turned to the professionals he’s long stiffed: Lawyers.

Trump recognized he could not fully corrupt the legal system solely by gutting the DOJ. He also had to make lawyers in private practice hesitant to represent victims of MAGA attacks, whether they be immigrants targeted for kidnapping and transport to foreign gulags, or those who blow the whistle on his administration’s illegalities.

Trump also recognized the nation’s largest law firms were the best initial targets. If he could intimidate major firms into serving him — and prevent them from providing skilled representation to his foes — he could well succeed in intimidating much of the legal profession, and thereby come far closer to achieving his goal of establishing a fully unjust society.

Trump’s initial tools for coercing large law firms were “executive orders” chock full of rage-filled defamations regarding such heinous acts as hiring or representing prosecutors like Robert Mueller and Jack Smith, accompanied by threats to blacklist firms from government-related work. The orders were patently unconstitutional, violating, among other things, due process and the 1st Amendment, as judges hearing several challenges to them immediately recognized.

Yet the first of the major Wall Street law firm to be hit with a Trump order — Paul, Weiss — folded in a matter of days, revealing the cynical brilliance underlying the scheme. His illegal “orders” would be vigorously enforced by the marketplace, and by fear of monetary losses, even if the orders were condemned by the courts.

Trump's hostile takeover of big law

Brad Karp, chair of Paul, Weiss, said that, in the “finest traditions of the firm,” he and his colleagues initially prepared to fight Trump in court. But instead of supporting Paul, Weiss in the face of what amounted to an assault on the entire legal profession, other firms immediately began circling like sharks, seeking to lure away lawyers and their clients. Faced with the prospect of pecuniary losses, adherence to Paul, Weiss’s “finest traditions” was suddenly less attractive, and capitulation to Trump more acceptable.

Submission initially seemed painless. As Karp learned during a visit to the White House, it appeared that all his firm had to do was make facially anodyne commitments to things like “viewpoint diversity” and following the law “with respect to employment practices.” And while the firm was also offering to perform millions of dollars of pro bono work on causes Trump favored, Karp explained that “the Administration is not dictating what matters we take on, approving our matters, or anything like that. We obviously would not, and could not ethically, have agreed to that.” No, of course not.

Soon thereafter, one Wall Street firm after another struck similar “deals” with Trump, most not even waiting for the president to issue “orders” against them. Each supplicant voiced assurances that its Trump “deal” was of little significance and would not compromise any “values.”

The Declaration of Independence's warning for Trump

Recently, however, the actual costs of the “deals” have been coming into sharper focus, and they are far more substantial than advertised. First, the apparently salutary Trump-approved “pro bono” work the law firms agreed to take on looks more than a little sketchy on closer examination. For example, Paul, Weiss declared that it would support Trump’s “task force to combat antisemitism.” The leader of that “task force” is an antisemitic conspiracy theorist, and it has been the tip of the sword for a Trump assault on civil rights and academic freedom.

It’s also becoming clear that the Trump deals contained a dangerous implied corollary: a limitation on what clients the law firms will take on. For example, public interest and civil rights organizations that represent vulnerable victims of government misconduct — including immigrants and civil rights plaintiffs — are now reporting being turned down when they request help from firms that previously leapt at such opportunities. Many whistleblowers, and other witnesses to Trumpers’ illegal actions, are almost certain to face similar responses when they ask big firm lawyers to represent them.

The hesitation of some lawyers to anger Trump by representing his victims or perceived “enemies” could also extend beyond the firms that struck “deals” with Trump — particularly in the face of declarations by AG Pam Bondi that the DOJ is on the lookout for “unethical” lawyers, meaning those who dare represent the victims of Trump’s misconduct.

Accordingly, by issuing a few absurdly illegal “executive orders,” Trump has managed to a transform a key segment of the legal profession from the protectors of his victims into potential tools for his assault on the justice system.

The assault on liberal education

In his 2021 paean to Orban’s neo-fascism, Douthat praised the Hungarian strongman’s “attacks on liberal academic centers.” In 2017, Orban chased an independent university that was established by George Soros out of the country. That was only the beginning of a systematic destruction of the Hungarian university system and other previously independent research institutes.

Some Republican governors, including Ron DeSantis, have since attacked public universities in their states. Trump, however, has broader ambitions. Soon after taking office, he set out to attack leading private Ivy League universities and their peers.

Trump’s cronies initially claimed an intention to address the real instances of antisemitism on some campuses in the wake of the October 2023 terror attack in Israel and the resulting war in Gaza, and cited them as a reason to open their “investigations” of universities. But it soon became clear that addressing antisemitism was a mere pretense for a full scale assault on their academic and administrative independence.

The primary initial target of Trump’s attack on academia, Columbia University, initially responded to his extortionate withholding of billions of dollars in federal research and other funding by giving in to several demands. But the university’s attempt to reach a “deal” only led to even more intrusive asks, reportedly including a demand for administration involvement in hiring decisions and a proposal to place the university under ongoing judicial supervision.

Trump moves to destroy Columbia University

Meanwhile, other private universities, including the nation’s oldest and richest academic institution, Harvard, were watching what Trump was doing to Columbia with the expectation that they would also soon become targets. Harvard quietly began preparing its own defense, including issuing bonds that could fund some of its operations in the likely event that Trump tried to extort the university by withholding federal funds.

Matters came to a head last week. Harvard responded to a letter, signed by several Trump administration officials, listing an absurdly intrusive list of demands with a firm rejection. The administration then ratcheted up the pressure on Harvard, including by withholding billions of dollars, and with a threat from Trump to take away Harvard’s tax exempt status.

But Harvard, having prepared itself for a long fight, showed no signs of buckling, and yesterday it sued a large number of federal government agencies and officials.

Obama applauded Harvard’s actions, stating on social media last week that “Harvard has set an example for other higher-ed institutions — rejecting an unlawful and ham-handed attempt to stifle academic freedom, while taking concrete steps to make sure all students at Harvard can benefit from an environment of intellectual inquiry, rigorous debate and mutual respect. Let’s hope other institutions follow suit.”

And it looks like many will. Soon after Harvard announced it will take a stand against Trump’s assault on the institution, other universities chose to speak up in emphatic support of Harvard’s position — a stark contrast with how many major law firms remained silent following the targeting of their compatriots. Within a few days, the interim president of Columbia was publicly reversing course, announcing that the institution was not prepared to give in to Trump’s most intrusive demands. Furthermore, the same law firm that had represented Paul, Weiss in its capitulation to Trump is among the firms representing Harvard.

Thus, while obeisance in the face of Trump’s threats and corrupt inducements proved to be infectious in civil society and other private sector contexts, Harvard’s resolute resistance has had the opposite impact. His choice of a powerful target is clearly backfiring. By the end of last week, Trump’s cronies were telling reporters the threatening letter to Harvard had been sent mistakenly and was “unauthorized,” effectively conceding that their frontal attack on the most powerful elements of the nation’s private educational sector might have been a bad idea.

Trump’s assault on civil society and educational institutions is hardly over — he and his cronies are reportedly about to commence an offensive against nonprofits. But recent events demonstrate that resistance, particularly by institutions with the greatest resources, is not only the right thing to do, but just might be effective.

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