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This week, President Donald Trump acted as an authoritarian. The only real question is whether anyone will stop him from being an authoritarian. In act after act, Trump and his cronies went after political opponents with extreme actions that could only take place in a country where the First Amendment and equal protection guarantees are rendered a nullity and where the procedural protections put in place to prevent the very sort of actions Trump is taking are nonexistent. A specific law firm, a specific university, a specific union, a specific hospital, and certain nonprofit employees were targeted for unfavorable treatment simply because Trump doesn’t like them and what they stand for. If these weren’t the acts a man who clearly wishes to be a dictator, some of them would almost be comical in their cartoonishly evil absurdity. But, coming as they did, from whom the did, and when they did, it was an alarming week. The law firm
The “Addressing Risks from Perkins Coie LLP” order combines Trump’s unending obsession with anyone he blames for any part of Special Counsel Robert Mueller’s investigation from Trump’s first term, his current obsession on turning back civil rights protections, horrifying attacks on the rule of law, and archetypical Trump bluster. But, there are very real — and extremely alarming — aspects of the order. Most of the attention to the order has been on the absurd provision directing agencies to “limit[] official access from Federal Government buildings to employees of Perkins Coie when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States” — a directive that could, in theory, purport to block Perkins Coie attorneys from federal courthouses. Now, of course, the order could be enforced in such a way that nothing like that comes to pass, but — and this is part of the problem — the threat would continue to hang over the law firm, itself inappropriate. But, the order has much more. Also in that section is a remarkable directive to agency heads to limit “Government employees acting in their official capacity from engaging with Perkins Coie employees to ensure consistency with the national security and other interests of the United States.“ The order also directs administration officials to “suspend any active security clearances held by individuals at Perkins Coie,” pending review. Another provision bars the federal government from hiring Perkins Coie employees “absent a waiver … that such hire will not threaten the national security of the United States.“ Perhaps the most troubling provision, though it’s hard to say which is most chilling, is this:
Yes, Trump directed agencies to have all government contractors reveal “any business“ they do with Perkins Coie. In other words, if Trump gets his way, any federal contractor who hired Perkins Coie — a law firm with more than 1,000 attorneys — will have to tell the federal government that they hired Perkins Coie. It’s an invasive act that strikes at the heart of attorney-client privilege, among its other aspects that run counter to the rule of law. Then, there is the big picture. The entire concept of the president targeting a single law firm — and those entities associated with it — for such treatment essentially because he’s mad at them is foreign to the rule of law. Finally, there is a broader provision slipped in the middle of the order, directing the Equal Employment Opportunity Commission chair and the attorney general to “review” and “investigate” law firm practices.
In addition to carrying over the problems of Trump’s prior anti-diversity orders, the vague language of these provisions allow the review and investigations to target whatever firms Trump wants targeted. That was just the first targeted, authoritarian action employed by the Trump administration this past week. The university, the union, and the hospitalAs seen in other steps, the threats, reviews, and investigations can lead to rapid actions — seemingly without due process or any real process beyond implementing the action to make their point that they are in control here. For example, within a week of announcing “a comprehensive review“ of Columbia University’s contracts and grants, the federal government announced the “initial” cancellation on Friday of $400 million worth of grants to Columbia University — the result of what the Trump administration characterized as “the school’s continued inaction in the face of persistent harassment of Jewish students.” That’s not all, either. “These cancellations represent the first round of action and additional cancellations are expected to follow,“ per the statement. The New York Times reported how the move was “the latest in a series of attacks by Trump-aligned Republicans aimed at elite higher educational institutions,” noting that one of Trump’s anti-diversity executive order sought to restrict educational institutions. Also on Friday, the Department of Homeland Security purported to end the collective bargaining agreement with Transportation Security Administration officers, claiming that the agreement “constrained” TSA in its efforts “to safeguard our transportation systems and keep Americans safe.” The statement is a cut-and-paste anti-union diatribe, claiming, “Eliminating collective bargaining removes bureaucratic hurdles that will strengthen workforce agility enhance productivity and resiliency, while also jumpstarting innovation.” A later part claims that “[n]early 200 TSA Officers are paid by the government but work full-time on union matters.“ That might seem relevant if you are missing the denominator that DHS does not provide. There are 47,000 TSA officers, as their union — the American Federation of Government Employee — explained in their response. In other words, they are talking about one-fifth of one percent (0.002) of TSA officers. “They gave as a justification a completely fabricated claim about union officials – making clear this action has nothing to do with efficiency, safety, or homeland security. This is merely a pretext for attacking the rights of regular working Americans across the country because they happen to belong to a union,” AFGE National President Everett Kelley said in a statement, noting that the union “has been out in front challenging this administration's unlawful actions“ and that Friday’s move was a “clearly retaliatory action.” Meanwhile, in an echo of the Trump administration’s efforts to subvert the intent of temporary restraining orders and injunctions in other area, plaintiffs in cases challenging Trump’s orders seeking to restrict gender-affirming medical care for those younger than 19 years old are back in court asking for follow-up orders because, as one set of plaintiffs put it, the Trump administration thinks they’ve come up with “a way to skirt this Court’s authority and avoid complying with its injunction” — by terminating a long-running grant to Seattle Children’s Hospital.
That March 6 filing in Washington state multistate challenge was followed by a similar filing on Friday in the Maryland case led by PFLAG. The nonprofit employeesFinally, there was Trump’s Friday attack on the Public Service Loan Forgiveness (PSLF) program. Although presenting as an order “Restoring Public Service Loan Forgiveness,” the order includes some of the most blatant viewpoint discrimination in a federal government program that I can recall. To make clear exactly where he’s going, Trump introduces this with a claim that “the PSLF Program has misdirected tax dollars into activist organizations that not only fail to serve the public interest, but actually harm our national security and American values, sometimes through criminal means.” The order then purports to exclude otherwise qualified nonprofit employees from loan forgiveness credit under the PSLF program:
The government-speak, Trump-talk language in the order — in addition to the poor grammatical structure at points — can obscure its extremism. In multiple parts, it uses the language of other executive orders — which themselves are being challenges — to create conditions here, based on the Trump administration’s definitions, to participation in PSLF. Section (a)’s mention of “8 U.S.C. 1325” is the provision of federal law that details “improper entry” to the country. Aggressively enforced, the provision could seek to block organizations that provide services for undocumented immigrants. Section (c)’s mention of “child abuse” is as the next clause makes clear, about gender-affirming medical care for minors. Aggressively enforced, the provision could seek to block organizations that provide such care. Section (d)’s “aiding and abetting illegal discrimination,“ read in the context of Trump’s other orders, could appear to — again, aggressively enforced — seek to block organizations that advocate for diversity, especially those that explicitly support diversity, equity, inclusion programs at entities covered by Trump’s “anti-DEI” orders. In light of all of that, Trump’s use of the phrase “American values” in this context is extremely alarming. It is nothing less than an effort by Trump to assert that he has authoritarian control over defining — and enforcing — what constitutes “American values.” We define “American values” — not TrumpThat is the common thread. Time and again this past week, Trump declared that he has the right not only to define American values, but to define who is excluded — and then to act on it. That is wrong. This is not the end. Trump does not have that right. The Constitution, many federal laws, and legal precedent all clearly block him from doing so in many respects. That, as we have too often seen, is not enough. Many people will have to act to ensure it remains so. Legal challenges, support for those challenges and the challengers, public officials lodging protests and insisting on accountability, and members of the public speaking out are just the start. Judges will need to continue ruling against the administration when it acts illegally. All people need to defend the law and oppose these sorts of actions, not because the law is always right or because it will be sufficient to moving forward and away from authoritarianism, but because the law is a foundational shared understanding that allows us to operate as a society. Trump has regularly scapegoated groups of people — that has been a key part of his cruelty over the past decade and before. This week, to me, felt different because it went beyond broad attacks on large swaths of people. This was a series of directed attacks on individual entities that Trump believes have challenged him or his policies. As I’ve written previously, the opening of the second Trump administration has been a series of efforts by Trump and other to see what they can get away with. Those have been extreme efforts at times, but they have, primarily, been about his authority within the government — in particular, when contrasted with other branches. This week was a further escalation of that — testing out whether he can “get away with” taking a clearly more authoritarian path forward. We must respond accordingly. |
