This Trump case will tell us if we still have a democracy

Oral arguments were heard this week in Harvard v. Trump’s cross motions for summary judgment. Summary judgment, or “judgment on the papers,” means both sides agree on the facts but disagree on how the law applies to those facts.

Neither Harvard nor the Trump administration dispute that Trump made certain unprecedented written demands to the university, accompanied by unprecedented threats if they refused to comply.

Harvard refused to comply, and sued.

Whichever party loses summary judgment will appeal, and the final disposition will likely, eventually, come from the Supreme Court. If the high court’s Republican majority further empowers Trump’s edicts under their misguided “unitary executive theory,” our 249-year history of ideological freedoms will come to an end and the nation will yield to Trump’s revenge.

Trump’s pressure campaign

The Trump administration, ostensibly seeking to reduce campus antisemitism following widespread protests over Gaza, threatened to withhold billions in federal funding from Harvard, place a lien on its assets, and put academic departments in receivership, unless Harvard agreed to:

• Exclusively promote faculty committed to Harvard’s mission and Trump’s viewpoints
• Submit the university to a Trump administration review of “viewpoint diversity”
• Scrutinize any “programs and departments” that might, in Trump’s judgment, fuel “antisemitic harassment”
• Submit all faculty to outside review for alleged “plagiarism”
• Submit to a comprehensive hiring and review audit conducted by the federal government
• Implement a comprehensive mask ban and suspend anyone who wears a mask
• Report to the federal government on any faculty members who “discriminated against” Jewish or Israeli students
• Screen student applicants to reject those with viewpoints “hostile” to Trump/Israel’s policies
• Establish outside review for Harvard programs that reflect “ideological capture” ie, programs where classroom messaging does not reflect Trump-supportive dogma
• Diminish the influence of its own professors and faculty over the university
• Establish “merit based” hiring and admissions policies that pleased the Trump administration.

Oral argument

Oral argument was both testy and basic. The lone Department of Justice lawyer arguing the motion, Michael Velchik, asserted that the administration “has the power to decide” where it will spend taxpayer money and that, “the government does not want to fund research at institutions that fail to address antisemitism to (the government’s) satisfaction.”

According to Velchik, when Harvard refused to go along with Trump’s demands, Trump was free to terminate any and all contracts with the university.

Trump essentially argues that the federal government can terminate or withhold funds under a contract for any reason at all, even if that reason violates free speech, the right of free association, or any other rights protected under the First Amendment.

Steven Lehotsky, Harvard’s counsel, countered that Trump’s attempts to control the university, including telling the university what it can teach and how it can teach it, represents Trump’s blatant “and unrepentant” violation of the First Amendment.

The Supreme Court has long held viewpoint discrimination to be such a serious violation of the First Amendment that it is treated as “presumptively unconstitutional.” Lehotsky argued plainly that, “It’s the constitutional third rail, or it should be, for the government to insist it can engage in viewpoint discrimination.”

Trump has been consistent in his belief that he can punish speech and political conduct he doesn’t like, notwithstanding clear and unequivocal legal precedent to the contrary. He has applied the same strong-arm tactics to boardrooms and corporations, national media outlets, law firms, and, most recently, comedians.

If the Roberts court continues to enable him, Trump will extend the same reasoning to imprison or otherwise punish anyone who criticizes him, following the same authoritarian playbook that produced such hits as Nazi Germany, Viktor Orbán’s Hungary, and Vladimir Putin’s Russia.

Even if Harvard allowed the expression of antisemitic views on campus — despite a strong Jewish presence among Harvard faculty — there still has to be some nexus, or some connection, between what the government is trying to fix (antisemitism) and the methods it uses to fix it. The judge went to the heart of this concept when she asked Trump’s counsel to explain the relationship between antisemitism and cutting off unrelated cancer research funding, noting that Trump is “not taking away grants from labs that have been antisemitic.”

An amicus brief filed in the case by Jewish scholars also points out that Trump routinely uses “antisemitism” as a ruse to attack freedom of speech, freedom of thought, and freedom of association. As noted in their amici brief, many Jewish scholars reject the notion that being Jewish “requires adherence to a specific conception of Zionism or support for the Israeli government or its policies and practices.”

Judge Allison Burroughs noted that if Trump, or any federal administration, could punish a university without due process simply because they don’t like their politics, or their message, or the substance of their curriculum, the constitutional consequences would be “staggering.”

Harvard v. Trump asks the most fundamental questions one can ask about the relationship between the government and the governed. Under the First Amendment, can the federal government control what is taught in the classroom and what is said on campus at various universities? Can the federal government withhold federal funds if it doesn’t like what it hears, or doesn’t agree with the viewpoints expressed?

If the answer is no, then our Constitution stands. Trump will join a 249-year line-up of presidents who have to grin and bear it when students call them ugly names and protest their policies. Who knows, Trump might even someday learn why the framers made free speech and association the very first amendment to the Constitution.

But if the answer is yes, the First Amendment will fall under the Roberts court, and there’s no reason to believe any other Constitutional protection will stand. Trump will forcibly insert his right-wing ideology onto campuses, boardrooms, and legacy media nationwide. That ideology will serve a madman’s lust for power and revenge, and America’s democracy will cease to exist.

• Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.