A natural experiment in how to survive Trumpism

Academia came together while law firms went alone

Trump’s strategy, like that of all autocrats, has been to divide and conquer; to systematically go after competing centers of power; to one by one sideline any actor that could be a check on his power.

As Ian Bassin explains:

The first play in the autocratic playbook is not to attack everyone at once.

Rather, it’s to go after one. One law firm. One judge. One university. One journalist. The strategy isn’t just to silence the immediate target — it’s to make others watch and learn. To convince them that resistance is dangerous, costly, and futile. To make them believe that if they just keep their head down, it’ll happen to someone else instead.

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Law firms and universities serve as major counterweights to government power in our democracy. Universities are centers of independent thought, research, and expertise (not to mention, historically, student organizing and protest). And law firms often sit literally on the other side of disputes between the government and its citizens. (As elite institutions they’re also both, it’s worth noting, convenient political targets for an authoritarian movement with a populist facade.)

So Trump went after universities and elite law firms first. That’s no surprise.

Striking, though, is the extent to which the responses from these institutions have diverged. So far, law firms (who are nominally in the business of the rule of law) have largely fallen prey to a lawless, divide-and-conquer tactic. But universities are increasingly showing signs of coordinated resistance.

Feel free to speculate on why the reaction has been so different — obviously there are major differences in institutional functions, financial incentives, governance, and stakeholder priorities — but that’s not really the most important lesson. The contrast between universities standing up and most big law firms shrinking back is a natural experiment in how individual actors can protect themselves in the Trump era. Standing up — not shrinking back — isn’t just the best way to collectively defeat an autocratic threat, it’s also the best way for targets individually to defend themselves and their interests.

What happened when law firms shrank back

On February 25th, Trump started his divide-and-conquer attacks on law firms with a memorandum directing government agencies to suspend the security clearances of employees of the law firm Covington & Burling, and to review and potentially revoke any government contracts with the firm. The memorandum itself explains why Covington was targeted — because it “assisted former Special Counsel Jack Smith.” Trump then raised the stakes on March 6th, issuing an executive order that aimed to destroy Perkins Coie, a Seattle-based firm that has historically represented the Democratic Party and its candidates.

Since then, he has targeted four other firms with virtually identical executive orders. He has also issued a memorandum threatening sanctions against lawyers and law firms that litigate against the government. And the EEOC has launched an investigation against 20 large law firms for alleged “DEI” hiring practices.

Some firms — Perkins, Jenner & Block, WilmerHale, and Susman Godfrey — took the legally obvious but still courageous route against the plainly unconstitutional orders. They fought back in court (with the assistance, it should be noted, of another handful of firms who were willing to step up and represent them). So far, that strategy is paying off for them. Expect the courts to soon permanently block the attacks on those specific firms.

But at least nine firms decided that even if the attacks were obviously unconstitutional, it would be safer to shrink back and cut deals with the administration in exchange for protection from retaliation. And many more firms — particularly some of the richest and most powerful — have decided to keep their heads down rather than stand up for the rule of law, presumably hoping that Trump won’t turn his sights on them.

Perhaps these firms were just doing a different kind of calculus. Certainly, there are legitimate incentives to cut a deal or stay quiet — including protecting the people the firms employ and the firm’s clients. And as Josh Marshall documents, the agreements the White House was asking firms to sign weren’t really enforceable “agreements” at all. As far as we know, they contained none of the specificity of a legal contract. They didn’t even include time frames. It was all simply a vague promise to stop undefined “illegal DEI hiring” and, sometime in the indefinite future, provide tens of millions in loosely defined pro bono services for causes the president personally cared about. They could do so 200 years from now, for all the agreements specified. Perhaps they thought, “why not?” Especially if signing didn’t actually commit them to anything — and no court would ever enforce the agreement anyway.

The problem is: In looking to protect themselves from short-term harm, these firms misunderstood what Trump wanted. It wasn’t a one-time, legally flimsy apology with no real commitment. It was an ongoing promise of undefined tribute.

In signing these informal agreements, they essentially committed themselves to be available to answer the president’s call. To follow his instructions. To not do anything that might anger the White House for as long as this president is in the Oval Office. Otherwise they’ll be right back in the firing line.

Already, per The New York Times, Trump is coming back for more: Law firms made deals with Trump. Now he wants more from them.

Plus, the price of protection is rapidly escalating. Look at the list of agreements. Notice the pattern? The going price keeps going up — it started at $40 million a pop, now it’s $125 million.

These firms may not have realized it, but in allowing themselves to be divided and conquered, they’ve likely locked themselves into prolonged servitude to the White House. This puts them in a tricky position — how can a firm both zealously represent its clients and stay loyal to the administration? Those two imperatives are inevitably going to come into conflict. We don’t know how much brand and reputational damage the settling firms will suffer in the long run — especially compared to other firms that have shown greater legal mettle. But we’d bet a billable hour’s-worth it will be more than if they had just joined Perkins, Jenner, Wilmer, and Susman in standing up.

What happened when universities stood up

Contrast all of that to higher education.

At first, when the Trump administration summarily terminated $400 million in federal funding to Columbia University — and threatened all federal funding if Columbia didn’t comply with a list of demands — it seemed like the divide-and-conquer strategy would be similarly successful. Columbia’s leadership made the same calculation as law firms, opting not to challenge the violations of its First Amendment rights in court.

But the faculty at Columbia were not so cowed.

On March 25, the American Association of University Professors (AAUP) filed suit challenging the administration’s moves at Columbia (Protect Democracy represents the AAUP in this suit). And, at Harvard, the AAUP filed another suit on April 12 against the administration's $9 billion funding review. In both places, the professors, not the administrators, took the first initiative to protect academic freedom.

Days after the AAUP sued at Harvard, its president announced that the university as a whole planned to stand up to unconstitutional attacks on academia. The university itself filed suit this week.

Harvard’s decision started an avalanche. Princeton University President Christopher Eisgruber — who’s been outspoken on academic freedom since the beginning — publicly stated "Princeton stands with Harvard.” Stanford's leadership added support, with President Jonathan Levin and Provost Jenny Martinez affirming that Harvard's stance is "rooted in the American tradition of liberty, a tradition essential to our country's universities, and worth defending." Columbia's acting president then put out a statement affirming that the school would reject any agreement "that would require us to relinquish our independence and autonomy as an educational institution."

Within a week, American higher education has mostly closed ranks to protect itself against federal government overreach. At the time of writing, 480 university presidents have signed on to a statement “speak[ing] with one voice against the unprecedented government overreach and political interference now endangering American higher education.”

Meanwhile, faculty senates are proposing a NATO-like "Mutual Defense Compact" among all 18 universities in the Big Ten Academic Alliance. This shared legal and financial defense fund would be the first formal attempt by universities to establish collective security in this way.

Universities are also joining forces in legal proceedings. A coalition including Princeton, Brown, MIT, Cornell, the University of Illinois, the University of Michigan, and other major research institutions filed a lawsuit on April 14 against the Department of Energy, challenging cuts to research funding. And alumni across many schools are joining hands to protect their alma maters.

Obviously this is all still pending; we’ll see if this united front holds and if courts protect the constitutional rights of faculty, students, and institutions of higher education.

But we also may not need to wait that long. The administration already appears to be faltering in the face of resistance. Last Friday, leaks from the White House attempted to assert — astoundingly — that the whole thing had been a misunderstanding and they hadn’t really meant to target Harvard like they did. Per The New York Times: Trump officials blame mistake for setting off confrontation with Harvard.

It is unclear what prompted the letter to be sent last Friday. Its content was authentic, the three people said, but there were differing accounts inside the administration of how it had been mishandled. Some people at the White House believed it had been sent prematurely, according to the three people, who requested anonymity because they were not authorized to speak publicly about internal discussions. Others in the administration thought it had been meant to be circulated among the task force members rather than sent to Harvard.

This week, the administration has repeatedly reached out to Harvard in an attempt to restart negotiations.

For its part, Harvard is standing firm that it “will not compromise” on its constitutional rights.

Four lessons from the natural experiment

Here’s four things we can learn from this contrast (besides the top line that standing up works and shrinking back doesn’t).

First, early targets are leaders whether they like it or not. When an actor — be it Harvard or a law firm — is among the first targets of an autocrat, they are thrust into a leadership role. They may feel like they’re making decisions just for themselves, but the truth is: Others are likely to follow their example, one way or the other. This means they can both reasonably expect others to back them up if they take a stand (as in the case of universities) or to similarly cower if they shrink (as in the case of law firms).

Second, in a standoff with an autocrat, strength (and perception of strength) matters. Law firms made a deal, in part, because they thought about this as a rational negotiation: If they gave the president what he wanted, he’d be satisfied. But that’s not how these things work; this is a dominance game, a public dance of strength and weakness. And so concessions only encourage further demands, while hard lines (and the projection of strength they convey) have so-far gotten the administration to back down.

Third, because the Trump administration is looking for domination, not compromise, that makes the decision easier. As Jamelle Bouie writes in his (excellent) piece, “One way to keep Trump’s authoritarian fantasy from becoming our reality,” compromise with an autocrat isn’t really possible:

Cooperation with a leader of this ilk is little more than appeasement. It is little more than a license for him to go faster and push further — to sprint toward the consolidated authoritarian government of Trump’s dreams (and those, especially, of his most reactionary allies and advisers, with their eyes on Hungary, Turkey and even Russia and China) …

When institutions like Columbia University effectively surrendered to the administration, they did not buy themselves grace so much as they were forced into Trump’s service as agents of his will. There would be no bargaining. There was no deal you could cut to save your Cloud City. You could either submit or resist.

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Finally, it’s never too late to stand up. Originally, much of academia was prepared to shrink back. But once the stakes became clear and Harvard drew a line, other universities quickly realized that they too could switch strategies and stand up.

Paying tribute requires a permanent state of submission. That means anyone who had been shrinking back can change their mind and stand up.

Law firms — and everyone else — might want to take heed.

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Judge blocks “citizenship” elections order

A federal judge blocked key portions of Trump’s executive order purporting to unilaterally impose a documentary proof of citizenship requirement. (Read more about the “dumpster-fire” EO here.) According to Holly Idelson:

The court has rightly pushed back on President Trump’s attempted power grab regarding who can vote and how. As the judge correctly stated: “Our Constitution entrusts Congress and the States — not the President — with the authority to regulate federal elections.” Forcing qualified voters to produce cumbersome citizenship documents in order to vote (like the ill-conceived SAVE Act in Congress) is a dangerous solution in search of a problem. It would impose costly and unworkable commands on voters and on election administrators — all in response to a phantom threat. Federal law already prohibits non-citizen voting in federal elections and evidence overwhelmingly shows it almost never occurs. Instead of imposing unnecessary new barriers to voting, Congress and the administration should take steps to supply election officials with the resources they need to continue holding safe, accurate, and efficient elections.

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What else we’re tracking:

• Rebecca Kelly Slaughter and Alvaro Bedoya, the two FTC Commissioners that Trump has illegally attempted to fire, have a must-read op-ed in the Financial Times on the stakes of their case for the Fed, SEC, FDIC, and economic stability: Trump’s move to fire us is a terrible warning for the US economy.

• The Trump administration appears to be targeting ActBlue, the online fundraising platform used by many Democrats. This likely presages broader attacks on civil society and opposition under thin pretexts.

• As the “Signalgate” scandal continues to get more outrageous (the latest: Secretary Hegseth had an unsecured internet connection set up in his Pentagon office so he could connect to Signal, according to the AP), The Atlantic’s Isaac Stanley-Becker covers the parallel “fiasco” happening inside the National Security Council.

• The latest in the Faithful Fight toolkit series — which brings together strategies from religious leaders across denominations to help communities mobilize against authoritarian actions — is all about “Organizing and training for collective action.” (Get these toolkits in your inbox here.)

• FBI Director Kash Patel announced that the Bureau had arrested a judge in Wisconsin, ostensibly for helping an undocumented defendant avoid arrest. (Even in full autocracies, arresting judges tends to be a rare and extreme tactic.)

• Quiet in the background: Congress is preparing a debt bomb. Per the Manhattan Institute’s Jessica Riedl, the approved budget resolution “allows Congress to slash taxes by $5.3 trillion and expand spending by $517 billion over the decade. This $5.8 trillion addition to the deficit (plus interest) would exceed the cost of the 2017 tax cuts, 2020 CARES Act, 2021 American Rescue Plan, and 2021 Bipartisan Infrastructure Law — combined.”

• A bit of good news: ICE restored thousands of international students’ visas after a judge’s order. Pushing back on lawlessness works.