The Situation: They Just Can’t Help Themselves

The Situation on Friday passed up the Trump administration’s offer of protection from antisemitism.

Today let’s consider the administration’s gestures of retaliation hither and yon.

On Lawfare Live this afternoon, my colleagues and I went over the Trump administration’s increasingly bleak record in federal courts in suits claiming that its various executive actions constitute unconstitutional retaliations for First Amendment protected activity:

The list of cases is really starting to pile up. The score among law firms alone is already 3-0 in favor of the law firms in the district court. Another case is pending, and you can take to the bank that it will go the same way. Harvard University now has two cases: one involving its foreign students, the other involving its grant money. This week, NPR got in on the game. And that’s all before you get to the students who allege that their visas have been revoked in retaliation for their exercise of their free speech rights and are fighting matters in habeas corpus cases.

On the show today, I asked my colleagues if any of them could think of a single such case the administration has either won or seems likely to win. Roger Parloff mentioned a case involving an individual lawyer whose security clearance Trump had stripped, arguing that the government’s authority over such matters is so broad that the courts might not interfere even when the executive branch’s purpose was clearly retaliatory. But that was it.

It’s not a surprise that the White House keeps getting its butt kicked in these cases. A government action, under general First Amendment principles, is not allowed to target for negative consequences a person or group by way of retaliating for constitutionally protected speech, association, or writing. Yet here are a series of executive orders and administrative declarations that announce their retaliatory purposes quite boldly. The executive order struck down this week against the law firm Jenner & Block, to cite one example, declares:

Jenner & Block LLP (Jenner) is yet another law firm that has abandoned the profession’s highest ideals, condoned partisan “lawfare,” and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States.  For example, Jenner engages in obvious partisan representations to achieve political ends, supports attacks against women and children based on a refusal to accept the biological reality of sex, and backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders. Moreover, Jenner discriminates against its employees based on race and other categories prohibited by civil rights laws, including through the use of race-based “targets.”

In addition, Jenner was “thrilled” to re-hire the unethical Andrew Weissmann after his time engaging in partisan prosecution as part of Robert Mueller’s entirely unjustified investigation.  Andrew Weissmann’s career has been rooted in weaponized government and abuse of power, including devastating tens of thousands of American families who worked for the now defunct Arthur Andersen LLP, only to have his unlawfully aggressive prosecution overturned by the Supreme Court.  The numerous reports of Weissmann’s dishonesty, including pursuit of nonexistent crimes, bribery to foreign nationals, and overt demand that the Federal Government pursue a political agenda against me, is a concerning indictment of Jenner’s values and priorities.

So, according to its own order, the administration is taking action against this law firm because (1) it doesn’t like its choice of clients, (2) it doesn’t like its use of “partisan representations to achieve political ends,” (3) it doesn’t agree with Jenner’s representations in cases involving gender identity and immigration, and (4) it doesn’t like Andrew Weissmann.

In fact, the only stated basis for the actions taken against the firm involve retaliation for First Amendment protected activities.

The order regarding NPR is subtler, but only marginally. It declares as an ipse dixit that NPR and PBS are “biased”: “neither entity presents a fair, accurate, or unbiased portrayal of current events to taxpaying citizens.” And Trump’s order consequently directs that the government, “shall cease direct funding to NPR and PBS, consistent with my Administration’s policy to ensure that Federal funding does not support biased and partisan news coverage.” Put differently, I am cutting off your government funds, because I don’t like what you say.

I have a prediction for you—and it doesn’t require me to be some kind of Nostradamus: The government is going to lose this case. It’s going to lose the remaining law firm cases. It’s also going to lose the Harvard cases. And the courts are not ultimately going to affirm the secretary of state’s authority to throw someone out of the country based on an oped or lawful student protest activity—or to lock such a person up after revoking his or her visa for such a retaliatory purpose.

All of which raises the question: Why is the administration doing this? Why retaliate in such obvious and flagrant violation of the First Amendment against a wide array of institutions and people who are going to sue and win in response? Why announce one’s retaliatory purpose right up front and directly, rather than, say, go after Harvard or the law firms for some unrelated infraction?

The more time I spend with these cases, the less I think I know the answer to this question.

At first, the idea seemed to be to not litigate but to bully institutions into accepting terms by way of avoiding court fights. But that didn’t work—or, rather, it worked until it didn’t. A bunch of firms did cave. Columbia University caved. And it looked briefly like the administration was going to take over the elite university and law firm sectors the way Hitler accomplished the Anschluss and took the Sudetenland and then the rest of Czechoslovakia—which is to say with blustering threats and by daring anyone to stand in his way.

But the thing about appeasement is that it didn’t ultimately work for Hitler either. Eventually, he invaded Poland and France and then the U.K. had to go to war. And eventually, a few law firms did stand in Trump’s way. And Harvard University did. And NPR did. And a bunch of student activists, who really had no choice but to fight because he had locked them up, did as well.

And just as Neville Chamberlain looked pretty dumb, all of a sudden, the law firms that folded and the university that folded look pretty stupid and cowardly. So what has Trump gained? And all of this was pretty predictable.

So perhaps the idea was not to intimidate everyone but to intimate some institutions. Call it opportunistic intimidation. Sure, some law firms would fight—and win—but more would not fight, and their submission was the goal. And sure, some universities might fight, but others would not do so, and their submission was the goal as well. By bullying the ones that allowed themselves to be bullied, the administration creates a climate that affects other similarly-situated institutions.

But this turns out to be effective only in the short-term too. The reason is precedent. It’s comparatively easy to shake down a law firm when law firms are confronting a presidential level extortion scheme for the first time and don’t know what realistic recourse they might have.

Once three district court judges have ruled in strong terms that such retaliation against a firm for its First Amendment protected activity is wildly out of bounds, however, spines tend to stiffen. The same is true with universities. And what’s more, the law that Harvard will make and the law firms have already made will operate as a shield for other universities and firms who might otherwise be tempted to succumb.

So what is really going on here? I think the answer lies in an old joke involving a scorpion and a frog who both want to cross the Nile River. The scorpion proposes that the frog give him a ride on his back, since the scorpion can’t swim. The frog objects that this won’t work, as nothing prevents the scorpion from stinging him.

The scorpion responds that stinging the frog would be foolish, since the scorpion can’t swim and he would therefore drown if the frog died. The frog considers the matter and concludes that the scorpion’s logic is correct. So he lets the scorpion climb on his back and he starts swimming across the river.

Whereupon the scorpion suddenly stings him. The frog, in his dying breath, asks the scorpion, “Why?”

The scorpion, drowning himself, responds: “I just couldn’t help myself.”

The reality is that there is no rational basis for this spate of actions. These guys just can’t help themselves. The urge to dominate people and institutions and make them conform to Trump’s will is just too strong for them to resist. Even when the result is that they will lose, and lose again, and lose again. Even when they actually strengthen the instinct among their foes to push back by clarifying that legal recourse is, indeed, available. Even when they can’t possibly believe they are going to prevail.

They just can’t help themselves.

And that isn’t scary. It’s pathetic.

The Situation continues tomorrow.