[From the Archives] Our Vichy Moment: Time to Stop Collaborating

[This remains my most important post, but I wrote it before all of you subscribed to Substack. It remains true. This is our Vichy moment when we have a choice between collaborating or fighting. Fight. When we fight we win.]

 

In my experience practicing law for nearly 40 years, I have learned that American institutions--corporations, individuals and non-profit alike--are very pragmatic when it comes to resolving disputes.  Clients may initially claim that they must stand on principle, but in the end will most often swallow principle to put a problem behind them. This is especially the case when the potential downside to an investigation or lawsuit is potentially catastrophic.

I am not surprised, therefore, to see a large number of universities and law firms rush to make a deal with the Trump Administration when faced with the potential of heavy financial penalties.  Law firms have been subject the Executive Orders with potentially devastating sanctions--prohibiting federal agencies from working with the sanctioned law firms, ceasing government contracts of clients that hire them, and suspending the security clearances that many lawyers need to do our jobs (certainly true of my practice).   While a hardly few have chosen to fight--most notably Perkins Coie, Jenner & Block, and Wilmer Hale--a larger number of the largest U.S. law firms have capitulated.  

Universities have been hit with the loss of huge cuts in federal grants (largely to science departments). In response, Universities have caved as well.  Columbia has agreed to Trump's demands (including placing an academic department under supervision) , and it looks like Harvard is on the road to caving as well.  It has changed the leadership of an academic department as well.

While I understand the desire to make a deal.  This needs to stop.  American institutions need to fight.  Michael Roth, the President of Wesleyan University calls this "a Vichy moment in American history . . .You can have preserved your school but you live in a sea of authoritarianism."   As Robert Kuttner elaborates:

In 1940, the French hoped to preserve part of “free France” by making a separate peace with the Nazis and setting up a puppet regime under Marshal Philippe Pétain based in Vichy, while the Germans occupied and ruled northern France. The arrangement lasted only until the Gestapo decided otherwise in 1942 and “free France” fell increasingly under direct Nazi rule.

Preserving a Columbia that is partly free is the same sort of fantasy. The rest of Columbia is free only until Trump decides to escalate his demands and seize more territory.
Wesleyan has the same kinds of federal funding streams at risk as larger universities: research grants from NIH and NSF, as well as Pell grants to students and the federal student loan program. I asked Roth if speaking out puts all of these at risk.

 “Of course, I think about that,” Roth said. “And then I think that’s the classic collaborationist dilemma, right? You know, you collaborate with authoritarians who you know are in the wrong, in order to keep them from doing worse stuff. And I think when you do that, when you engage in the collaboration, you actually encourage them to do even worse stuff.”

I agree with Roth.  The Trump Executive Orders against law firms and the actions against the Universities are unquestionably illegal,  unconstitutional, and dangerous. Every law firm to fight the Executive Orders has won in court--in cases decided by Judges appointed by both Republican Presidents and Democratic Presidents.     Similarly, there is no statutory authority for the actions against the Universities.  While Title VI of the Civil Rights Act allows for sanctions, these can only be imposed after a formal investigation and the remedies must be limited to the programs found to be in violation. Unless the violation involves the Chemistry Department, you can't take away its grants as a sanction. Moreover, it is clear that the Universities are being targeted because of speech--which makes them constitutionally suspect as well.

So what's the harm in collaboration if it protects your institution?  First, it is wrong-headed to think that this one deal will appease the tyrant.  It won't.  To the contrary, the evidence is that it will only embolden Trump to ask for more. Columbia has already learned this lesson.  After agreeing to Trump's terms, it has now learned that Trump is demanding that it be subject to a formal consent degree.  The law firms may soon learn this lesson as well.  They thought they were merely agreeing to do pro bono work for crime victims and other favored causes of the right.  Just last week, however, Trump suggested that the obligation might also include helping both the government with trade negotiations and the coal industry.

The lesson here is simple--caving only leads to more demands. As Michael Roth explains "I think that’s the classic collaborationist dilemma, right? You know, you collaborate with authoritarians who you know are in the wrong, in order to keep them from doing worse stuff. And I think when you do that, when you engage in the collaboration, you actually encourage them to do even worse stuff."

More fundamentally, collaboration normalizes the authoritarian actions.  Simply put, when Columbia and Paul Weiss caved, they made Trump even more eager to go after other universities and law firms.

Fighting is hard.  Fighting is risky.  But the lesson of history is that not fighting authoritarians, in the end, never ends well.