How courts might stop Donald Trump’s attack on civil society
IN FEBRUARY 2018 a teenager shot and killed down 14 high-schoolers in Parkland, Florida. As the country reeled, a New York government official sought to weaken America’s gun lobby. Maria Vullo, head of the state’s financial-services regulator, told Lloyd’s of London that if it stopped providing insurance to the National Rifle Association (NRA) the government wouldn’t investigate it for regulatory infractions. Lloyd’s took the deal and the NRA sued, arguing that choking its business for political reasons violated the First Amendment. Last year the Supreme Court agreed unanimously. “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavours,” Justice Sonya Sotomayor wrote for the justices in NRA v Vullo.
Coercion of institutions whose views Donald Trump disfavours has been a signature of his second term. Will he be checked? The Vullo ruling suggests that Mr Trump’s widening assaults on American civil society are unconstitutional. Since taking office he has ejected a news agency from the Oval Office for its choice of words and told Harvard University that it will lose funding unless it enforces “viewpoint diversity” under government oversight. He could soon go after non-profits by removing their tax exemptions. Many of his targets have been reluctant to sue, fearing escalation. But a handful of elite law firms have—and their cases are moving quickly enough that the Supreme Court may soon be forced to act on the principles it enunciated in Vullo.
Mr Trump’s attacks on law firms began as unabashed vengeance-seeking. In February he started targeting firms which represented his political foes and employed people he dislikes. His first executive order stripped Covington & Burling of its security clearances. Next came Perkins Coie, Paul Weiss, WilmerHale and two others, whose lawyers lost access to federal buildings and whose clients were warned that working with the firms would put their government contracts at risk.
Panic ensued: many of these firms’ top clients rely on Washington contracts and could leave for less controversial firms. “The administration forced a choice: work for us and people we like or we’ll put you out of business,” explains Scott Cummings, a legal ethicist at the University of California, Los Angeles. In Viktor Orban’s Hungary, he notes, a similar ultimatum left the legal industry with no firms that outwardly oppose the country’s autocrat.
The shakedown worked, partly. Paul Weiss found its way back into Mr Trump’s favour by pledging $40m of pro-bono work for his pet causes. Another eight firms have since struck deals, together offering an additional $900m of free labour. But four firms sued. Top lawyers like Paul Clement, who has argued over 100 Supreme Court cases, and Dane Butswinkas, who was briefly Tesla’s general counsel, chose to represent them. Their arguments echo those of the NRA: pressing clients to sever ties because of cases the firms have taken on infringes on their right to free speech. In addition, they argue that the administration violated the clients’ right to counsel and the firms’ right to due process by imposing sanctions without giving them the opportunity to defend themselves.
“This is the one domain where the president has met the most resistance from conservatives,” says Gregg Nunziata, a prominent right-wing lawyer. The value of representing unpopular causes is sacrosanct and big firms have the resources to sue politicians in power. Susman Godfrey, the latest firm to come under attack, litigates election cases. That caught the eye of a president who has mused about seeking a third term.
Four district judges have temporarily blocked parts of Mr Trump’s orders and the firms are seeking permanent relief. The case law that emerges from their battle will shape the fate of universities and non-profits. Part of the Trump administration’s pressure on Harvard and Columbia University has leveraged the Civil Rights Act to enforce changes, a tactic Democratic presidents have used to promote gender equality. But the Trump administration has also distinctively insisted it has the right to control what universities teach and whom they hire. On April 21st Harvard filed a lawsuit against the administration accusing it of flouting the First Amendment, among other offences.
The early success of law firms which decided to fight hasn’t convinced other targeted institutions to stop settling, but cutting deals is not proving to be the end of it. After pledging to give itself the makeover the administration demanded, Columbia University has not had its funding restored. And law firms that donated pro-bono time may soon find themselves in more agony. Mr Trump has spoken about using them to broker coal leases and trade deals with countries hit with tariffs; White House officials reportedly said the firms that settled may be asked to represent the president himself. Sheila Heen of the Harvard Negotiation Project is advising bosses to do something she never normally suggests: don’t negotiate. The punishment for disloyalty, she reckons, only gets worse “once you are his”. ■
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