A War on the First Amendment: David Cole on Trump Targeting Students, Law Firms, Schools & Journalists

AMY GOODMAN: “Strange Fruit,” performed by Billie Holiday. It was written by Abel Meeropol, also known as Lewis Allan, as a protest poem against the lynching of African Americans, after he said he was haunted by Lawrence Beitler’s gruesome iconic photograph of the 1930 lynching of two Black teenagers, Thomas Shipp and Abram Smith, not far from here, in Marion, Indiana.

This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman at Ball State University in Muncie, Indiana, where I gave the David Letterman lecture last night. We’re broadcasting from the Unified Media Lab. Joining me from Chicago is Democracy Now!’s Juan González. Hi, Juan.

JUAN GONZÁLEZ: Hi, Amy. And it’s great to see you’ve cut the geographical distance between us, at least for a day. And welcome to all of our listeners and viewers across the country and around the world.

AMY GOODMAN: Well, an immigration judge has announced she may rule as early as Friday on whether the Trump administration can keep detaining Mahmoud Khalil, who was seized by federal agents March 8th from Columbia housing in New York.

Mahmoud Khalil was a Columbia University student protest leader involved in Gaza solidarity encampments. The judge has ordered the Justice Department to hand over evidence by 5 p.m. today to justify Mahmoud’s continued detention in Louisiana.

He was a legal permanent resident of the United States with a green card, which has now been revoked. At least 300 other international students at more than 80 colleges and universities around the country have had their visas revoked in recent weeks.

On Tuesday, The Guardian published a letter Mahmoud Khalil’s wife, Dr. Noor Abdalla, who’s about to give birth, wrote to her jailed husband. It said in part, quote, “We will not be silenced. We will persist, with even greater resolve, and we will pass that strength on to our children and our children’s children — until Palestine is free,” she wrote.

The case of Mahmoud Khalil comes as many legal scholars say the country is facing a constitutional crisis on a number of fronts — from the Trump administration threats to ignore judicial decisions, to the administration’s targeting of law firms and universities, to Trump’s use of the 1798 Alien Enemies Act to expel Venezuelans without due process to a notorious supermax prison in El Salvador. President Trump has even floated the idea of sending U.S. citizens to jails in El Salvador.

We’re joined now by David Cole, professor at Georgetown University Law Center, former ACLU national legal director. His latest piece for The New York Review of Books is headlined “Academic Freedom in Peril.” Cole also has a piece in The New Yorker titled “The Last Time Pro-Palestinian Activists Faced Deportation.” And he has a separate piece in The Guardian headlined “Trump’s attacks on law firms are an attack on law itself.”

Before we go into all these issues, Professor Cole, can you start off by talking about this latest decision, a judge ruling that the White House has to reinstate, allow AP to report from the White House covering President Trump, even though it refuses to say “Gulf of America,” continuing to refer to it as the “Gulf of Mexico”? The significance of this, David?

DAVID COLE: Really significant decision from a Trump-appointed judge declaring that Trump’s policy of punishing reporters and media outlets that don’t toe his line violates the First Amendment. You know, nothing is more sacred in this country than the right of people and the press to criticize the government, to disagree with the government. And yet the White House was saying, “If you disagree with us, if you refuse to call the Gulf of Mexico a new name that Trump has made up, we’re going to keep you out of the ability to report on matters in the Oval Office, on Air Force One.” And the judge has said, “You can’t do that. You can’t punish the media for its point of view.”

JUAN GONZÁLEZ: And, David, what about this — there was — a federal appeals court has overturned another — a firing of the Trump administration of two top federal labor officials. The court ordered that they be restored. Trump had abruptly fired Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board, and these are judicial bodies that oversee federal workers, and they are supposed to be fired only for neglect or malfeasance.

DAVID COLE: Right. So, this is, again, part of Trump’s effort to try to neutralize any checks and balances on his unlawful actions, here by removing officers who have independence under our laws from the mere political will of the president. There are certain agencies that we want to have independence: the Federal Reserve, the NLRB, the Federal Trade Commission. We don’t want them making political decisions. We want them making decisions that are in the best interests of the country. And so, that’s what Congress has said.

The president, nonetheless, dismissed these officers. They challenged his dismissal as a clear violation of the statute, which says he can’t dismiss them just because he doesn’t like them. He has to identify some actual wrongdoing or malfeasance or neglect of duty that they have engaged in. And so, the D.C. Circuit has upheld their challenge at this point. I’m sure the Trump administration will take it to the Supreme Court, and they’ll have the final word.

JUAN GONZÁLEZ: And what about these attacks on law firms, on major U.S. law firms, that have been involved in pro bono work? Lawyers are supposed to be officers of the court. Talk about the impact that this is having on the legal profession.

DAVID COLE: Yeah, so, you know, if you are engaged in an effort to violate legal restrictions, right, left and center, lawyers are a problem, because what lawyers do is sue you when you violate the law. And so, what you see President Trump doing is attempting to disable the bar from challenging his actions, and in particular to disable what is often referred to as Big Law, the big law firms that have, in some instances, thousands of attorneys, incredible resources, and often use those resources pro bono to challenge unlawful actions of the government. You know, that’s when they’re acting at their best, in sort of the ideals of the legal profession, upholding the law. Trump has singled them out for doing exactly that, and has done it explicitly in the face of — on the face of executive orders targeted at these firms.

He says, “Well, you represented immigrants in challenging border policies, or you represented transgender folks in challenging laws that discriminate against transgender people, or you hired Bob Mueller, the former FBI director, who I don’t like.” And on the basis of those actions, he has imposed really crippling restrictions on firms, such as your security clearances are revoked, so you can’t do any confidential, classified work involving the government, and you’re not allowed to go into federal buildings, which means you can’t go to federal court, you can’t go to the Justice Department, you can’t do your work.

Three firms, three courageous firms — Perkins Coie, WilmerHale and Jenner & Block — have stood up to this blatantly illegal attack, went to court, challenged it the day these orders were issued. Judges immediately enjoined these orders, because they are illegal on their face. You cannot retaliate against lawyers because you don’t like the lawsuits they’ve brought or the partners that they have hired. And so, the firms have been successful. And I would predict no judge, up to the Supreme Court, will uphold what the Trump administration is doing.

Yet four firms — Skadden Arps, Paul Weiss, Milbank and Willkie Farr — have settled with the president, have essentially given in to his illegal demands, have agreed to change their management structure within and to his liking, and have agreed to donate hundreds of millions of dollars of pro bono assistance to support causes that Trump approves of. That is not, you know, what the legal profession is supposed to be about. It is not supposed to be about trying to curry favor with the administration by agreeing to illegal demands from the boss to only do his bidding. And that’s, unfortunately, what we see four law firms doing here.

I think this is a threat to the legal profession, but it’s more than that. It’s a threat to the rule of law, because what Trump is trying to do is neutralize the opposition that comes from lawyers, who only are successful in their opposition when you are violating the law. He wants to violate the law with impunity, and so he’s trying to take the law firms out of the business of challenging his actions.

AMY GOODMAN: Professor David Cole, I wanted to ask you about the students who have been detained. Interestingly, here at Ball State, there are five students and alum who were arrested at the end of February protesting around Palestine issues and investment in Israel. But I’m talking now about Mahmoud Khalil. I’m talking about Rumeysa Ozturk. Talk about the detention of, the removing of visas of, of green cards, the abducting of these student leaders. In the case of Rumeysa, she had written an op-ed in her Tufts paper about Palestine issues. Can you talk about what’s going on here?

DAVID COLE: You know, what’s going on here is absolutely clear: The Trump administration is trying to suppress protests that it doesn’t like. And we don’t have to guess about it. Just as with the law firm orders, Trump has put it out there in the public, this time in a tweet on Truth Social saying, you know, “We’re going to go after you for your illegal” — quote, what he calls — “illegal protests.”

Well, protests are not illegal simply because they express a view that the president disfavors. Protests are protected precisely because they express views that the president or the government disfavors. That’s the point of protest.

And what the administration is doing is abusing immigration authority, that was never designed for this purpose, to target people who are doing nothing more than speaking out in favor of Palestinian rights, opposing and objecting to the massive killing of Palestinians in Gaza by Israel. These are First Amendment-protected activities. I could go out on the street right now and protest what’s going on in Israel, criticize Israel and argue for the right of Palestinians to a homeland and the like, and the government has no constitutional authority to go after me for that. Well, the same is true for noncitizens who live among us, the millions and millions of noncitizens who live among us. The First Amendment does not draw distinctions between citizens and noncitizens. It protects speech across the board. The Supreme Court has said, because it protects speech across the board, it protects even the speech of inanimate entities like corporations. Well, if it protects corporations because we have an interest in the speech of all, it certainly protects the rights of noncitizens.

And indeed, in a case I argued about 40 years ago, a court struck down a provision of the McCarran-Walter Act, the then-existing immigration law, that made immigrants deportable for advocating communism. And the court said the First Amendment protects all people within the United States. You can’t punish a citizen for advocating communism. You can’t deport a foreign national for advocating communism.

And the same is true today. You can’t punish a citizen for protesting what Israel is doing in Gaza. You can’t deport a foreign national for protesting what Israel is doing in Gaza. And yet, that is exactly what the Trump administration is trying to do.

And it’s employing a little-used provision of the Immigration Act, which was designed to essentially give the secretary of state the ability to remove or keep out high-level people, officials, whose entry would in some way undermine our foreign policy by sending the wrong message: “We approve of this group by allowing its leader into the country.” That policy, which gives the secretary of state the ability to remove people whose presence or activities here poses serious foreign policy consequences, has very rarely been used, and only for high officials. And now the Trump administration is using it for ordinary students on college campuses who are doing nothing more than engaging in protest.

The idea that a protest on a college campus poses serious adverse foreign policy consequences for the United States is ludicrous. We are stronger than that. We can tolerate the fact that people among us disagree about Israel and Gaza. In fact, we must tolerate that under the First Amendment. But the administration is not tolerating that with respect to foreign nationals, seeking to chill protest — and, I think, succeeding thus far, because everyone is deathly afraid that they’re going to get picked up if they do no more than advocate for the human rights of people in Gaza. It’s a travesty.

JUAN GONZÁLEZ: And, David, I wanted to ask you also about the assault on universities by the federal government, the withdrawal of funds, the pressure by some conservative members of Congress to remove university presidents, and even the federal government, for instance, in the case of Columbia University, demanding that the university remove the head of a department of Middle Eastern studies. Regardless of whether this is legal or not, the impact that this is having on the functioning of these universities and the fear that it’s instilling across the country to university administrations?

DAVID COLE: Yeah, no, this is all part of the scheme, right? I mean, again, what is Trump doing? He’s targeting the most vulnerable. He’s targeting immigrants. He’s targeting dissidents. He’s targeting transgender folks. He’s targeting people of color. But he’s also seeking to neutralize any place where there might be opposition, the checks and balances, so removing heads of agencies, removing inspectors general, targeting the press and punishing them if they disagree, targeting law firms and punishing them if they disagree, and now also targeting universities and punishing them in totally unlawful ways.

So, universities, under our Constitution, are protected by the First Amendment. They have a heightened, what the court has called a special concern of the First Amendment, is academic freedom, precisely because universities need to be places of free exchange, free inquiry. The court has said the First Amendment precludes political officials from interfering in the management of their academic affairs, in what they teach, who teaches it, what rules they apply vis-à-vis their students’ speech and their professors’ speech and the like. It’s the universities’ freedom to make those decisions.

Trump doesn’t like how they’ve made those decisions, again, principally on the issue of Israel, but I think that’s being used basically as an excuse. What he’s really trying to do is hem in any check or any criticism or any opposition from universities across this country by holding over their heads the millions — and, in some instances, billions — of dollars of federal funding that supports research that these universities carry out for us, you know, lifesaving research. And he’s doing it by asserting that the universities have, in one way or another, violated Title VI, which requires that recipients of federal funding not discriminate on the basis of race or national identity in their programs. And he claims, “Well, you know, they’re tolerating antisemitism, therefore they’re violating Title VI, therefore I’m going to punish them.”

Well, that’s not how the law works. The law says that if you — if the federal government wants to withhold funds because it claims that a university has violated Title VI, it has to specify the specific violation. It has to provide notice of that specific violation, a specific incident in which there was antisemitism and the school failed to respond adequately. It then has to give the university an opportunity to respond. It then has to engage in a program-by-program evaluation and can only withdraw funds to the extent that they are related to the particular program that constituted the violation.

Has the Trump administration done any of that? No. It has not identified a single instance of antisemitism by students at Columbia, at Cornell, at Northwestern, at Princeton, at any of these schools where it has frozen funds. It has not identified a single instance of antisemitism that the schools failed to respond to adequately. Instead, it just waves its arms and says, “Antisemitism, antisemitism,” without identifying a specific instance.

And that is really problematic, because the line between free speech and antisemitic harassment is a difficult one to draw. If somebody gets up on campus and says, you know, “From the river to the sea,” that’s their First Amendment right. If two people do it, that’s their First Amendment right. If three people do it, that’s their First Amendment right. I could go out on the street corner right now and say, “From the river to the sea,” and the government could not punish me for it, because it’s my First Amendment right. If enough students are saying that and directing it at Jewish students so that Jewish students feel they don’t have equal access to the educational environment, well, then a Title VI problem may arise, and the school may need to respond in a particular way. But drawing that line is very difficult. Very few courts have found that this kind of speech constitutes — even conceivably constitutes — a Title VI violation.

And so, you need to have facts and circumstances to see whether the schools were simply allowing students to speak freely, which is their right, or failing to respond to actual discrimination, which they are required to do. The Trump administration has just blown past that and, instead, is threatening to withhold billions of dollars from these universities if they don’t do the Trump administration’s bidding.

And then, as you indicate, the Trump administration’s bidding includes things like, “Oh, I don’t like the head of this department. Replace him,” or, a report suggests, “I don’t like the Columbia University president, so replace her.” And Columbia did replace her. Well, the president of the United States should not be deciding who is the head of a private university’s academic department or of the university itself. Those are First Amendment academic freedom decisions of universities.

But what Trump is seeking to do here is to neutralize the opposition. This is what autocrats do in many other countries. When they come to power, they look for where the opposition might come — the press, the lawyers, the universities, the nonprofit sector — that will be next. And they seek to neutralize opposition. That’s Trump’s plan here, and it’s clear as day.

AMY GOODMAN: You’re at Georgetown, David Cole. We want to ask you about the new video that’s emerged on the arrest of Badar Khan Suri, the Georgetown University prof and postdoctoral scholar who last month was ambushed by masked federal agents outside his family’s home in Rosslyn, Virginia; after repeatedly being transferred across five ICE facilities, currently jailed at an ICE detention center in Texas. His legal team is saying that for two weeks he was placed in a cell without a bed, a television blaring 21 hours a day, was denied food or water to break his Ramadan fast. So, I wanted to ask you about him, about Rumeysa Ozturk at Tufts, about Mahmoud Khalil, all of these takings of these students, these scholars, these professors, and with Badar Khan Suri at your university.

DAVID COLE: Yeah, so, professor Badar Khan Suri was teaching in the Center for Christian-Muslim Understanding. The Center for Christian-Muslim Understanding, that’s where he was teaching. He was teaching a class that violates no law whatsoever. And yet he comes out of class, goes home to his wife and child, and outside of his home is picked up by masked federal agents, and, as you suggest, spirited off across many states and many detention centers.

And what’s the charge against him? As far as we can tell, the charge is his presence here threatens serious foreign policy consequences. Why? Because he has said some things on social media that support the rights of Palestinians against the Israeli attack on Gaza, and because he is married to the daughter of somebody who used to be in Hamas — married to the daughter, a U.S. citizen daughter, of somebody who used to be in Hamas. This is guilt by association by association. No charge that he engaged in any criminal conduct. No charge that he advocated any kind of illegal conduct. No charge that he provided support to terrorist activity. Simply that he said some things we don’t like, and he’s married to someone who is, in turn, related to someone who used to be in Hamas.

That is, again, an outrageous action by the government, because you have a right to say things about the way people in Gaza are being treated. You say so every day on this show, and you can’t be punished for doing so under our First Amendment. So professor Khan Suri cannot be punished for doing so. And you have a right to marry who you want, regardless of who their parent is. That is not a basis for kicking you out of this country. And yet he’s been torn from his child, torn from his wife, simply for, you know, what he stands for in terms of his political views.

And the same thing with the woman at Tufts. As far as we can tell, her only “offense,” if you want to call it an offense, is having written an op-ed in the Tufts school newspaper criticizing the Tufts administration for not being hard enough in its stance against atrocities in Gaza. Again, we all have a First Amendment right to criticize atrocities in Gaza and criticize others who are not criticizing those atrocities as they deserve to be criticized. That is our First Amendment protection. And yet, she was, like Mr. Khan Suri, picked up by masked agents and spirited away simply for what she said.

And the same thing with Mahmoud Khalil, the graduate student, green card holder, at Columbia. What is his offense? Didn’t engage in any criminal activity. He didn’t support some terrorist activity. He simply spoke out during the protests about the —

AMY GOODMAN: David, we have 30 seconds.

DAVID COLE: — horrific human rights abuses.

Yeah, so, these are core First Amendment activities, and foreign nationals should not be targeted for those activities. Universities should not be targeted for those activities. We should celebrate that we’re a strong-enough country that we can have dissent protected by the First Amendment and not punished by the Trump administration.

AMY GOODMAN: David Cole, we want to thank you so much for being with us. He is the Honorable George J. Mitchell professor in law and public policy at the Georgetown University Law Center, former national legal director of the ACLU. We’ll link to your articles.

And as we broadcast from Ball State in Muncie, there are students that are standing outside the studio holding signs that say, “Ball State arrested five peaceful protesters,” and “Know the Ball State 5: arrested for speaking out.” Their hearing, the hearing for the Ball State Five, will take place in court on April 23rd. They were charged with disorderly conduct as they took on a board of trustees meeting, and they were charged with disorderly conduct and — just to get this accurate, according to the statement that was given by the university to the Ball State Daily News, one was charged with disorderly conduct with unreasonable noise.

Coming up, Trump requests a $1 trillion budget for the Pentagon, while other agencies face major cuts or even elimination. Back in 20 seconds.