The Great Grovel Gathers Momentum
Appeasing Trump brings neither liberty nor safety
“You cannot reason with a tiger when your head is in its mouth.” — Winston Churchill (maybe)
Surrender is a choice.
But I regret to tell you that the Great Grovel continues — as Big Law, universities, and the media join the feverish scramble of fear and favor, principle be damned. They tell themselves that collective resistance is futile and that surrender in advance will protect them from Trumpist revenge.
But, as we are seeing in real time, appeasement only emboldens the jackals and demoralizes other targets — and, as Ben Franklin warned, provides neither liberty nor safety.
Over the weekend, Columbia University yielded to the Trump Administration’s demands; and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison (may their name live in infamy) caved to his threats. Predictably, their surrender triggered an even more aggressive and toxic attack on the legal profession.
Last night I cross-posted this warning from Andrew Weissman:
"The concerted attacks on lawyers, law firms, and judges. are coordinated strategy to discredit and intimidate legal actors who dare to challenge the Trump administration. At stake is preservation of the ability of our legal system to function without fear or favor. When lawyers are targeted for representing unpopular clients, and judges face threats for upholding the law, we risk undoing the very prerequisites that make justice possible."
Happy (?) Monday.
I know that there are a lot of claims on your time and your pocketbook. But please take a moment to consider supporting us.
To the Contrary is a reader-supported publication. There are no investors. No sugar daddies. We’re not affiliated with any PACS. Or parties. Just me. And the dogs.
Folks, we’re not capitulating, surrendering, or shutting up.
To receive new posts — including podcasts and videos— please consider becoming a free or paid subscriber. (And I’m immensely grateful for your generous support.)
Brad Karp, the head of Paul Weiss, wants us to understand why he decided to capitulate and put his mega-firm into a Trumpist receivership. In an email to the staff, he explained that Trump’s executive order targeting the firm, was an “unprecedented” and “existential crisis” for the lawyers who raked in $2.6 billion last year.
His fear was palpable. "The executive order could easily have destroyed our firm,” he wrote.
It brought the full weight of the government down on our firm, our people, and our clients. In particular, it threatened our clients with the loss of their government contracts, and the loss of access to the government, if they continued to use the firm as their lawyers. And in an obvious effort to target all of you as well as the firm, it raised the specter that the government would not hire our employees.
He could have fought back, as others have done. But as he looked around, he claimed, Pul Weiss found precious little appetite for defying Trump.
We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the President’s executive order targeting Paul, Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys.
So, they cut a deal, agreeing to do $40 million worth of free representation for causes that Trump approved. Karp offered up the usual blather and eyewash, but it was impossible not to marvel at the self-abnegation of the alleged super-lawyers. Bob Bauer writes in Executive Functions:
[Rather] than take action against the order, Paul Weiss disregarded the lawlessness of Trump’s actions, which is lawlessness of a particularly pernicious kind: punishing lawyers for representing clients or causes personally offensive to this president….
Other firms will certainly take notice, as will the administration, which now has cause to believe that similar negotiated deals are on the table.
Some might think that Paul Weiss did what any business management might do, in the face of an extraordinary threat. Law firms, however, are a particular kind of business, a professional association, and it is hard to imagine that the damage done to the profession by this deal won’t prove worse than the threat from the federal government that it was meant to contain.
Indeed, Paul Weiss’s surrender emboldened the Trump White House: “White House buoyed by capitulation of major law firm attacked by Trump administration” | The Guardian
Inside the White House, advisers to Donald Trump reveled in their ability to bully Paul, Weiss – one of the largest law firms in the US – and see its chair criticize a former partner as he tried to appease the US president into rescinding an executive order that threatened the firm’s ability to function.
The escalation came quickly as Trump moved to extend his threats to… every law firm in the country” “With New Decree, Trump Threatens Lawyers and Law Firms” - The New York Times.
President Trump broadened his campaign of retaliation against lawyers he dislikes with a new memorandum that threatens to use government power to punish any law firms that, in his view, unfairly challenge his administration.
The memorandum directs the heads of the Justice and Homeland Security Departments to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable and vexatious litigation against the United States” or in matters that come before federal agencies.
Mr. Trump issued the order late Friday night, after a tumultuous week for the American legal community in which one of the country’s premier firms, Paul, Weiss, Rifkind, Wharton & Garrison, struck a deal with the White House to spare the company from a punitive decree issued by Mr. Trump the previous week.
Meanwhile, the universities also surrender.
Last week, Politico noted: “Universities are caving to Trump with a stunning speed and scope.” That momentum accelerated with the news that Columbia University agreed to Trump’s demands after federal funds were stripped.
Like the legal profession, academia can now expect even more threats.
Last week, I spoke with Wesleyan President Michael Roth about the need for universities to push back. He’s written extensively about the threat to civil society — and why it matters.
It may seem that asking corporations, universities, and other organizations to “keep their mouths shut” is a conservative position. Far from it. Since the 18th century, thinkers associated with conservatism and classical liberalism have emphasized the importance of having an independent civil society, the informal networks in a country that are adjacent to the political sphere.
Businesses and schools, libraries and neighborhood associations, are crucial elements of that sector. From Baron de Montesquieu and Edmund Burke in the 18th century to Alexis de Tocqueville and John Stuart Mill in the 19th, political philosophers have underscored that freedom depends on the pillars of civil society not being subsumed by those with governmental authority.
Tocqueville wrote that “Local institutions are to liberty what primary schools are to science; they put it within the people’s reach. … Without local institutions a nation may give itself a free government, but it has not got the spirit of liberty.” And Mill underscored the “need for political devolution and the diffusion of power and initiative within the great entrenched institutions of our society.”
Authoritarians, by contrast, have long known that total control will elude them if they don’t eradicate the autonomous support engendered within civil society by cultural, religious, commercial, and educational institutions. That’s why the Nazi party announced the policy of Gleichschaltung, the coordination of all aspects of German society in line with the ideological goals of the party and its leader. Under Mao, the Cultural Revolution was meant to ensure something similar. All aspects of society—from family relations to schools, from farming to music—would be cleansed of independent allegiances and aligned with the party and its leader.
And then there is the media…
When the eyes of the world fixated on the stranded NASA astronauts being rescued and touching down back on Earth, every channel danced around what precisely to call the body of water they splashed into.
A review of transcripts, courtesy of SnapStream, revealed an alarming reality: not one of the outlets could muster up the courage to simply refer to it as the Gulf of Mexico, the water feature’s name since the 16th century.
Instead, television news organizations tied themselves in knots, performing linguistic gymnastics to stay out of Donald Trump’s crosshairs, while also tiptoeing around audiences who would have surely been incensed to see them bend the knee and call it the "Gulf of America." On ABC News, "World News Tonight" anchor David Muir referred to "spectacular images from off the coast of Florida." On the "NBC Nightly news," anchor Lester Holt spoke about the astronauts "splashing down off the Florida Gulf coast." On the "CBS Evening News," it was referred to simply as "the Gulf." And on CNN, anchor Jake Tapper tried to seemingly have it both ways, noting the U.S. government refers to it as the "Gulf of America," but the rest of the world calls it the Gulf of Mexico.
FFS.
How’s that fight against tyranny going?
Timothy Snyder offered “Twenty Lessons for Fighting Tyranny”. Here are the first two:
Do not obey in advance. Most of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then offer themselves without being asked. A citizen who adapts in this way is teaching power what it can do.
Defend institutions. It is institutions that help us to preserve decency. They need our help as well. Do not speak of “our institutions” unless you make them yours by acting on their behalf. Institutions do not protect themselves. So choose an institution you care about and take its side…
Several others seem relevant today:
Remember professional ethics. When political leaders set a negative example, professional commitments to just practice become important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.
Stand out. Someone has to. It is easy to follow along. It can feel strange to do or say something different. But without that unease, there is no freedom. Remember Rosa Parks. The moment you set an example, the spell of the status quo is broken, and others will follow.
Be as courageous as you can. If none of us is prepared to die for freedom, then all of us will die under tyranny.
Exit take. It’s not going well, is it?
Monday dog
Piano boy. Eli loves lying under the piano when his mom plays. Beethoven is his favorite.
Sleepy Eli.
I have a feeling Trump isn’t finished with Paul Weiss. Innumerable inane demands await. What if Trump is dissatisfied with the quality of the pro bono work? What if the pro bono cases lose in court? What if Trump disputes the way the $40 million is accounted for? Once you bend over, there’s no standing back up, with Trump. You’re his b*tch forever.
Somehow I feel that Paul Weiss will be a diminished law firm, given how they gave in. I can see them shedding clients, because, if they can't fight for themselves, how can they fight for others? Also, the attacks of the law firms has been going on for a relatively short time, and each act of defiance builds on the last one. A few hits today would result in a stronger firm/stance tomorrow.