Posted on by rjonakait

First, Let’s Kill Not Just the Lawyers

There are over 130 lawsuits against the administration’s activities, but I want to consider three instances where there could be, but aren’t, court cases. The first happened a few months ago. Trump sued the television network ABC for libel. ABC settled the suit for millions even though knowledgeable First Amendment and media experts said that the network would have won.

Second. The Trump administration said it was stripping Columbia University of $400 million in grants but would “negotiate” about them if Columbia made various changes, including prohibiting masks at protests, adopting a definition of antisemitism, employing security guards who are authorized to make arrests, and putting a department into “academic receivership.” Columbia seemingly capitulated and agreed to the extraordinary demands of the administration, probably insuring further attacks on other universities.

Third. Trump is now also targeting law firms that, in his opinion, “engage in frivolous, unreasonable, and vexatious litigation against the United States.” He has stripped firms of security clearances and forbade their lawyers from entering government buildings, which makes it impossible to represent sundry clients. Some firms have resisted Trump’s demands, but the large and powerful Paul Weiss firm gave into them. Paul Weiss will stop diversity activities, provide $40 million of free legal services to projects that have Trump’s approval, and take on clients with a “full spectrum of political viewpoints.”

There is a common thread here. ABC, Columbia, and Paul Weiss are all private institutions. The institutions have to be concerned that they will be effectively destroyed by Trump’s actions and by additional actions Trump might take if he were defied. ABC had to be concerned that the FCC and other government agencies would make life difficult for them and their affiliates or even strip them of their licenses. Columbia gets multiples of the $400 million in federal grants and contracts, and the university had to be concerned that Trump would extend his attack on the university. Paul Weiss felt that it would lose clients and lawyers to other firms because of what Trump had done.

Trump’s retribution is frighteningly broad, and while his memory for facts may be deficient, he remembers what he perceives as slights. Years ago, for example, Trump tried to sell Columbia some Manhattan property. Eventually the university declined, apparently angering the then real estate developer. Trump wanted $400 million for the property, the amount that the federal government is now withholding from the university. Coincidence? Another example: Trump has demanded an apology from the Maine governor for some comments by her that Trump did not like. His implication is that the state of Maine will be punished if “I’m abjectly sorry” is not forthcoming. Paul Weiss was targeted not for the work it had done, but for the work of a one-time partner, Mark Pomerantz, for the Manhattan DA. That the threatened actions against the firm are only a pretext is clear. If Paul Weiss were a threat to national security and security clearances needed to be stripped to ensure our safety, nothing the firm promised to do would change that. This is not about national security; this is about retribution.

The attack on law firms, however, is not just revenge. Apparently, prestigious firms have already decided not to take on cases that challenge Trump’s policies for fear that they or their clients will become future Trump targets. Trump is trying to win or avoid court cases not through our constitutional adversary system, but by eliminating legal opponents. We are in a new and dangerous territory when the government seeks to prevent lawyers from challenging it. Trump may not be trying to kill all the lawyers, but he is trying to kill those attorneys who oppose him as well as the institutions that do.

I, like others, hope that courts will step in to stop presidential abuses, but when institutions are rightfully concerned that they are facing an existential threat, it is understandable, and to me frightening, that they conclude that they must not fight to save their lives. When they don’t mount a defense, there aren’t cases for the courts to decide. For Trump, the path is clear: If I can show an institution that I can destroy it, they will probably capitulate, and I won’t have to worry about meddlesome courts. Most of the talk about a constitutional crisis has concerned Trump’s refusing to obey court orders, but these attacks on private institutions also constitute a constitutional crisis.

We will still get legal challenges. Individuals who have been arrested, or deported, or lost their jobs have challenged and will challenge what is happening. They feel that they will in effect lose their lives unless they challenge Trump. Private institutions may have pressures to capitulate; individuals have pressures to resist. However, individuals do not have the kinds of resources of an ABC, Columbia, or big law firms to take on the government. Individuals must depend on the volunteer activities of a few lawyers or on organizations like the ACLU or similar groups to stand up to Trump. If you can, this is the time to support those who are fighting against Trump. Only then will we find out what our country actually deems legal and constitutional.

Posted on by rjonakait

The Ukrainian Jokester (concluded)

The man with the accent who, to my regret, had just told an offensive joke on the subway to me, loudly announced at the joke’s conclusion that he had to take care of some personal business. He fished out of a fanny pack-sized satchel a dented plastic cup. He moved to the end of the car. I feared that he was going to urinate there, but, instead, he opened the subway door and stepped into the space between the cars as we lurched to our next stop. A considerate man, apparently, to do this out of sight and to use a cup.

My hope that he would take another seat and find a new conversant was dashed as he sat in the place he had vacated. I could not take my eyes off that plastic cup, which looked surprisingly dry, as he placed it back into the satchel while I wondered what that cup was nestling against.

Based on zero evidence that his comedic efforts were a success (no passenger had laughed or, strictly maintaining the no-eye-contact rule, had even looked in his direction), he launched into several more stories. Each time the punchline was, “It was the Jew!” After one of these inevitable endings, he said, “I must be Jewish. My grandfather was Jewish, but he converted to Catholicism.” Perhaps there was a story worth hearing there, but I was not about to try finding out.

We came into a stop that allowed a transfer from our local train to an express, and I got up to exit as did other passengers. “You’re leaving,” he said, and I nodded pointing at the subway sign. He looked a bit hurt, and for a brief, irrational moment I felt sorry that I was sneaking out on him. Even so, I hurried out the train door and scurried to get on the subway car directly in front of the one I had left.

 Now that I was separated from him, I did exit at my planned 110th Street station, but I was immediately pleased that as I stepped from the car I was behind a pillar on the platform, for I could easily hear “Glory, Glory, Hallelujah” coming from my “friend” who, too, was on the platform. (He did not advance the song beyond this refrain, but his voice was pretty good.) I had a view of the exit turnstiles, but I did not see him go through them immediately. He had to be lingering on the platform, and if I headed for the street, he would see me. I waited. I still did not see him. I can’t tell you how foolish I felt hiding behind a narrow subway pillar that required me to suck in my gut to remain unseen. Finally, thanking all the Christian, Arab, and Jewish gods, I saw him go through the turnstile. I could not see the stairway to the street, so I waited some more. I inched forward, but with his back to me, he was still at the bottom of the steps that I had planned to take. I tried to calculate the likelihood of being spotted going up a different set of stairs that would have made a slightly longer trip to my destination. I eschewed the risk and waited further behind my protective pillar. I finally took baby steps forward again, and blessed day, I did not see him. I left the platform and ascended to the street, fearing he would be at the top, but although I did a 360, I did not spot him.

I hurried—a rather loose term for the way I now walk—up to Columbia University stopping for a few quick errands along the way. I was going to meet for the first time a student whom I was going to advise for his senior thesis. I had read his proposal. It was for the definitive biography of Supreme Court Justice John Marshall. My goal was to aid the student in narrowing his topic so he could complete it in the next year and not need five more years to graduate as his proposal would require. I knew that I was about to dash some dreams, but sometimes you have to break some eggs to make the omelet for the greater good. (Ok, I agree that this is a mixed metaphor and not a good one, but I can’t come up with anything better right now. I am listening if you have a suggestion.)

 

The meeting site provided a complication. Although I have taught a course at Columbia, and I am currently advising another senior on his thesis, I am not a regular member of the Columbia faculty and do not have a Columbia ID. In this land of Covid, Columbia now limits access to its buildings, and I can’t get in them. The student and I had worked out a solution. We would meet on the steps of Hamilton Hall (yes, that Hamilton of musical fame—a graduate of a precursor of Columbia) and then move into a wedding-sized tent set up on a lawn in front of the building, one of the many “temporary” erections now marring the Columbia campus. Enough heat is provided by portable heaters to make it reasonably comfortable inside.

 he student calls out my name as I approach Hamilton. We shake hands and head into the tent, which contains a dozen or more eight-person tables and find a place to talk. Doing my job, I ask some incredibly insightful questions that will advance the student’s thought processes exponentially. He is answering, and I am listening when I spot him. My pisser, Polish-Ukrainian, Jew-joking subway rider is walking on the far side of the tent. My eyes are glued to him hoping he does not spot me. He sits down at a table where there is one other man. Does he know this guy? Does he have some connection to Columbia? I am not about to ask him, but I realize that I have not been listening to the student’s painstakingly thoughtful comments. I stop the student’s discourse and say, somewhat embarrassed, that I was not listening. I briefly explain to him why, and then immediately wonder if I should have told him about the anti-Semitic jokes since the student has a Jewish sounding name. However, he seems to think that my awkward situation is funny. My subway companion is sitting with his back to me and is unlikely to see me, so I get back to my business of advising a Columbia senior thesis. After a forty-minute discussion, I leave the tent with hopes that I have left my subway regaler behind.

I have garnered no great wisdom from this encounter, and it will not change my subway behavior. Someday again I will be asked about a book I am reading, and I will still give a brief reply, and the odds are overwhelming I will quickly return to my reading. All I can take away from my subway trip is the reminder that not every experience in New York is pleasant, but even those that are not may add interest to life.