This is the promised Part 2 of my series on universities and law firms, the legal bits.

What Happened?

Trump has issued executive orders targeting a growing list of large law firms. Substantively, those orders tend to follow a recurrent pattern: they tend to be entitled “Addressing Risks from [Firm],” and begin with a litany of grievances against the firm in question, which tend to include some combination of work for Mr. Trump’s political opponents, hiring of persons associated with former special prosecutor Robert Mueller, and “DEI” practices in hiring. They then lay out an identical package of sanctions against each firm, including (a) suspending security clearances held by all members of the firm, (b) terminating “all Government goods, property, material, and services” provided to targeted firms, (c) terminating of government contracts with companies for whom the firm has done legal work (on the contract in question), (d) barring of firm employees from federal government buildings. (e) barring government employees from “engaging” with firm employees, and (f) barring agencies from hiring employees of targeted firms. The buildings provision is hedged by the requirement that agency heads “provide guidance” as to how to do so “when such access [to federal buildings] would threaten the national security or otherwise be inconsistent with the interests of the United States.” Arguably, the purported federal building ban could be interpreted and applied sufficiently aggressively to bar members of the targeted firms from federal courthouses, though am unaware of any reports of any targeted lawyer actually being turned away at a courthouse door so far.

Trump has also decreed drastic (amounting to hundreds of millions of dollars in each case) and unilateral research funding cuts to universities. In many cases, these have been carried out without any formal statement of the ostensible rationale. Where someone in the executive branch has announced its rationale, it has tended to involve allegations that the universities have failed to protect their Jewish students from antisemitism under Title VI of the Civil Rights Act, presumably related to protests against the war in Gaza. One funding suspension is premised on alleged Title IX violations relating to the University of Pennsylvania's permitting a transgender swimmer to compete in intercollegiate athletics. In retaliation for Harvard's effort to defend its rights, Trump has announced further efforts to punish the university, prominently including revoking its tax-exempt status.

To be perfectly clear: antisemitism is bad. Reasonable people can disagree on whether or not protests against the war in Gaza have contained antisemitism, and if so, whether it contained any kind of antisemitism that universities are permitted or required to punish. Many kinds of student speech, even speech that reflects bigoted views, are protected by free speech and academic freedom---just as it would be if a student said something sexist or racist in the classroom. Indeed, the political right has spent many years asserting precisely the opposite position, that it violates free speech principles for universities to punish students (or faculty) for, for example, uttering racial slurs such as the n-word. This op-ed from 2016 is a good example the traditional conservative hand-wringing any time a university or even a fellow student would suggest that maybe someone ought to not say something offensive on a campus. It seems quaint nowadays. Ironically, Donald Trump signed an executive order in his first term purporting to promote free speech in universities. If universities permitted something that might actually violate antidiscrimination law, like allegations that at UCLA Jewish students were excluded from buildings because of their religion, they should face appropriate---and legal---consequences. But each university is entitled to a fair hearing to adjudicate whether that actually happened, and there are legal rules in place about what the consequences can be.

They're all super illegal

I could go on for the length of a long article or a short book explaining why all of this stuff is incredibly illegal. Partly that is because it keeps on escalating, and compounding new violations of law. For example, there's a specific law barring Trump's attempt to use the IRS to retaliate against Harvard, passed in response to Richard Nixon's similar misconduct---Neal Katyal concisely explains this one in the WSJ.

So here's a quick romp through the law. With respect to universities, there is statutory authorization to terminate federal funding on the basis of violations of federal antidiscrimination laws (42 U.S. Code § 2000d-1). Unfortunately for Trump, that statute (and the Due Process Clause of the Fifth Amendment) requires notice and a hearing before terminating any such funding. The agency terminating funding is also required to file a report with Congress thirty days before terminating funding. Needless to say, Trump didn't do any of that with the universities he's targeting.

Moreover, the statute contains a specificity requirement:

There is a certain amount of ambiguity in the meaning of "the particular program or part thereof," and it does not help that this program-specificity requirment has a particularly convoluted history, but I think it's reasonable to read the statute to say that even if one of our major universities was somehow discriminating against Jewish students (which I don't believe), funding may only be terminated to the specific "part" of the university that was found (after notice and an opportunity to be heard, which was not provided) to have engaged in that discrimination. In other words, Trump can't take away money from the physics or biology departments of a university on the basis of alleged discrimination on its swim team or frat house.

Moving past the straightforward illegality of the revocations of funds to the various universities, the demands made as a condition of restoring funding were also unlawful. With respect to Columbia, Trump's goons demanded that an entire department be put in “academic receivership.” That is, it wanted Columbia to take away that department's authority over its own hiring, admissions, and other decisions (authority traditionally exercised by every department on academic freedom grounds). With respect to Harvard, the most egregious demand was that Harvard hire an external monitor approved by the federal government to create ideological balance across the university:

That's wrong for so many reasons that it's hard to know where to start. Here's one entry point: that demand was wholly unrelated to any alleged discrimination against Jewish students. Being unrelated to the only factual allegations made by the Trump administration that could create even ostensible statutory grounds for terminating federal funding, it's just Trump cutting off funds on his personal say-so: that's illegal. (The lawyer word is "impoundment," the president deciding for funsies to not spend money that Congress has, by law, appropriated. He doesn't have that authority. Congress has the power of the purse, not the president. Here's a decent explainer that focuses on the statute expressing Congress's will to hold onto that power.)

Whether or not the environmental studies department contains a critical mass of climate change skeptics or the economics department contains a critical mass of Marxists not only has no bearing on whether Jewish students are subjected to antisemitism; such a requirement could easily lead to violations of federal antidiscrimination law. Imagine telling the African and African American Studies Department that they must hire a critical mass of white supremacists (or even that the Harvard Center for Jewish Studies must hire a critical mass of Holocaust deniers?) and then imagine the likely treatment by those professors of their nonwhite students.

We all know (hope?) that "viewpoint diversity" wasn't (primarily?) intended to require the Harvard Center for Jewish Studies to hire some Holocaust deniers. (We take our wins where we can get them, I guess?) What the government really meant by "viewpoint diversity" is "hire more Republicans" or "hire more Trump supporters." Merely stating that obvious intention---the agents of the President of the United States instructing a private university to hire and admit more of their political supporters---should make clear not only its corruption but its total inconsistency with the First Amendment. But just in case there's any doubt, a brief excursus through the doctrine should suffice to remove it.

There are very few situations when the government is allowed to do viewpoint discrimination under the First Amendment. One of them is that the government is entitled to engage in viewpoint based restrictions on the use of federal funds that it disperses. As Chief Justice Rehnquist memorably explained in Rust v. Sullivan, “When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles… it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism.”

However, that ruling isn't as big as it sounds. We know that the government cannot use federal funding as a lever to coerce speech of funded entities on unrelated matters. Before looking at what the Supreme Court has said, just think about it for a moment. Imagine if Congress passed a law requiring that all recipients of federally funded food stamps post at least 5 messages a week in support of the Republican Party on their social media accounts? That sure seems tyrannical, right?

The Supreme Court agrees. From made this clear in Agency for International Development v. Open Society International:

That distinction directly applies to the demands made of Columbia and especially Harvard. The “conditions that define the limits of the government spending program” are provided in the statutes and regulations authorizing grantmaking by agencies like the National Science Foundation and the National Institutes of Health, as well as the terms of individual grants that specify the subjects to be studied. It would obviously be constitutionally permissible for the government to withhold funding from a chemist who converts grant funds intended for the study of nanoparticles to the production of a book on gender roles in Jane Austen——even though that would be a content-based regulation of speech. But “viewpoint diversity” in the English Department has nothing whatsoever to do with the limits on what grant funds for the physics department may be spent on.

With respect to the law firms, the First Amendment analysis is largely identical to the analysis with respect to universities. To it, we can add Fifth (due process) and Sixth Amendment (right to counsel) violations insofar as they impose a burden on the free choice of counsel of not only the actual and prospective clients of those firms, but also anyone whose representation is likely to get their lawyer in trouble with Donald Trump. Imagine what the next law firm that represents Joe Biden will have to worry about. We can further add separation of powers violations because those orders directly intrude on the judiciary both by punishing firms for non-frivolous litigation positions and potentially by physically restricting some firms from access to courthouses.

Thus, to Agency for International Development v. Alliance for Open Society International, already discussed, we can add Legal Services Corp. v. Velazquez in which the Court struck down a condition on Legal Services Corporation funding prohibiting any grantee from making constitutional challenges to welfare laws. In addition to making it clear that such a restriction violated the First Amendment, the Court also raised severe separation of powers concerns, observing that “By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.”

Compounding the violation of the right to counsel, the exeutive orders purport to retroactively punish clients of the targeted firms for having hired those firms to work on any federal contract. To quote the Perkins Coie order, which is identical in all relevant respects to the others:

These orders thus purport to deprive an unknown number of government contractors of any number of contract, property, and statutory rights, merely because they were unlucky enough to have hired a lawyer at some point in the past who came within the crosshairs of Donald Trump. Just to describe it is to make clear how illegal it is. None of those contractors has violated any law. None has done anything except hired a lawyer to provide perfectly lawful legal services. And now the President of the United States is ordering the entire government to breach its contracts with them, potentially flinging them into bankruptcy, because he's mad that some law firm hired someone who once met someone who once shook hands with someone who once worked for someone who smiled at Hillary Clinton across the street.

The Threat These Orders Pose

Obserrve the commonality here. Those civil society institutions who have been targeted first are those who have provided support and resources for Trump's political opponents or those who oppose policies he supports. The law firms were targeted for representing democrats and those who prosecuted Trump. The universities were targeted for not punishing students for protesting a war that Trump supports. The inevitable consequence of their success will be the suppression of political dissent, as any institution vulnerable to executive action will have strong incentives to side with Trump and against any dissident that has arounsed his anger. This is wholly incompatible with the First Amendment and constitutional democracy as a whole.

Law firms and universities occupy particularly central roles in the defense of constitutional democracy. The illegal executive actions directed at both groups of targets threaten not just those entities but all who rely on them such as clients and students.

Access to legal representation is crucial for the vindication of individual legal rights. Threats to punish firms for representing disfavored clients or advancing disfavored positions have a potential cascade effect accelerating the slide toward authoritarianism. If the executive branch successfully scares lawyers away from disfavored clients and positions, that further increases the power of the executive to retaliate against other targets in other domains. Consider that ActBlue will require effective and zealous legal representation to defend itself against the new presidentially-ordered "investigation" seemingly meant to undermine the Democratic Party's fundraising efforts. If Trump's actions against the law firms succeed, any firm representing any of his political opponents will have reason to fear retaliation. If representing ActBlue is likely to lead to financial ruin for a firm because of executive order retaliation, that seriously impairs ActBlue's ability to vindicate its legal rights, and thereby the Democratic Party's ability to fairly contest elections.

Universities for their part are a primary location for free speech and free inquiry in the United States. Let me again repeat that the alleged "antisemitism" that provides the paper-thin rationale for the revocation of university funding originated from student anti-war protests. Beyond the Trump administration's transparent ire toward universities in general, those orders are plainly aimed at creating an incentive for other universities to punish students for engaging in disfavored speech. The same extends to employers and other organizations vulnerable to the misapplication of federal civil rights law. Imagine, for example, that at some point in the near future there is another prominent police killing of an African-American person, and students participate in a Black Lives Matter march: must a university that permits such a march fear that it may be subject to punishment by the Department of Education for thereby permitting discrimination against whites? Will a university that permits a "take back the night" rally against sexual assault be subject to punishment for permitting discrimination against men?

These actions are all the more dangerous in conjunction with other executive branch threats against other sites for free speech such as the press. A producer of CBS's acclaimed 60 Minutes program recently resigned in protest of excessive corporate control of its politically controversial stories, undertaken because the company required executive branch approval of a proposed merger. There have been threats of other regulatory action against news outlets that have published stories that angered the President.

None of this can stand.