The Great Capitulation
Individuals are resisting Trump. Institutions? Not so much.
Almost every day, friends and colleagues from outside the United States ask me: "Why aren't Americans resisting the Trump Administration?" However, there is a fair amount of protest against the Trump Administration. For example, there are protests at Tesla dealerships and state capitols, as well as massive crowds for the "Fight Oligarchy" tour by Sen. Bernie Sanders (I-Vt.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.).
Yet, institutions have resisted far less than individuals: in civil society, a pattern of capitulation has emerged against Donald Trump's campaign of retribution against perceived critics. Some universities, law firms, and media organizations have chosen to comply rather than resist demands from the administration. On March 21, Columbia University--one of the wealthiest universities in the U.S.--agreed to the Trump Administration demands to overhaul its Middle Eastern studies department and its protest and security policies after the Trump Administration withheld $400 million in funds. The funds have yet to be released. Earlier this week, the Democratic-leaning law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP announced a deal with the Trump Administration where it would do $40 million of pro bono work for the administration after Trump leveled an executive order against the firm, which most legal observers considered illegal. The order was subsequently dropped. These deals follow a $15 million settlement last December by ABC News with the president over defamation, which most legal experts think was a winnable case for the outlet.
It is no accident that the Trump Administration is targeting independent institutions: they are one of the few remaining bulwarks against its power, following the total acquiescence of Republicans in Congress and Supreme Court decision last July that declared that the president has near total immunity for his actions. Universities are designed to foster independent thought and action, even if they sometimes fall short in doing so. Law firms provide legal representation for administration critics. Journalistic institutions strive to tell the truth and challenge the powerful.
One reason these institutions are capitulating is that it costs less in the short term. It is easier for the head of a law firm, as Brad Karp, the head of Paul Weiss did, to go to the White House and cut a deal rather than face the potential loss of big clients and a long, expensive court battle. A journalistic outlet settling a lawsuit with Trump ensures that he and his subordinates will still appear on the network, which faces competition from other news outlets in booking newsmakers.
However, in the long term, the costs are much higher. Settling with the administration shows that the tactic works and invites more harassment. It is also no guarantee that the harassment will not return later. Indeed, the legal campaign against independent institutions has not stopped with Columbia, Paul Weiss, and ABC News. The administration withheld $175 million from the University of Pennsylvania over transgender participation in women's sports. Another top Democratic-leaning law firm, Perkins Coie, chose to sue, rather than seek a deal, with the Trump Administration after it was targeted by an executive order. CBS News' parent company, Paramount, is mulling a deal with Trump over a baseless $20 billion lawsuit over its storied "60 Minutes" program, which most legal observers think that Paramount and CBS would eventually win.
While these institutions would likely ultimately prevail in court, the government has leverage to shake them down. For example, the Federal Communications Commission is weighing whether to approve the acquisition of Paramount, CBS' parent company, by Skydance Media. Law firms likewise fear that challenging the Trump Administration would hurt their corporate business. Columbia, like almost all research universities, relies on federal money for grants for medical and scientific research.
However, there are two ways to respond to this pressure. The first is for institutions, to the extent possible, to make themselves less of a target. According to the Wall Street Journal, the Columbia administration emphasized that there was "considerable overlap" between changes that the Trump Administration demanded and changes it thought were needed after the campus was rocked by pro-Palestinian protests last spring, some of which turned disruptively antisemitic. If that's the case, then the school should have made the changes before the administration cut off funds months later. (Cancelling medical and scientific research grants also does nothing to address antisemitism.)
The second, more difficult way to respond, would be through collective defense. Institutions could form a kind of NATO to provide funding and legal support for targeted universities, journalistic organizations; such an effort could cushion the blow from these attacks. Thousands of associates at corporate law firms signed an open letter decrying Paul Weiss' deal; the letter could motivate firms to take on the administration rather than cut a deal. (The Journal reported that there have been discussions between law firms to sign a letter supporting Perkins Coie, the targeted firm that sued the administration, but some firms have feared signing a brief without a "critical mass.")
It is a human response to threats to bury your head in the sand rather than stick your neck out for a peer. But it ultimately does not work: institutions, and U.S. democracy more broadly, will hang together or hang separately.
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