A short time ago, former U.S. Attorney Barb McQuade posted this passage from a Chronicle of Higher Education interview with Lee Bollinger, First Amendment scholar, former law school dean and former president of University of Michigan and Columbia. I note the thumbnail biography because Bollinger, apart from subject qualities, has ascended to the the peaks of two of the foundational nodes of power in American civil society: the legal profession and the university system.
He said this …
We’re in the midst of an authoritarian takeover of the U.S. government. It’s been coming and coming, and not everybody is prepared to read it that way. The characters regarded as people to emulate, like Orban and Putin and so on, all indicate that the strategy is to create an illiberal democracy or an authoritarian democracy or a strongman democracy. That’s what we’re experiencing. Our problem in part is a failure of imagination. We cannot get ourselves to see how this is going to unfold in its most frightening versions. You neutralize the branches of government; you neutralize the media; you neutralize universities, and you’re on your way.
We’re beginning to see the effects on universities. It’s very, very frightening.
For anyone who reads TPM or any of a host of other publications or online conversations, this is neither a surprising nor an outlandish statement. This is a conversation we’re all in the midst of. But that first sentence is important: “We’re in the midst of an authoritarian takeover of the U.S. government.” That is what is happening. And we’re in the middle of it. As semi-familiar as the words and concepts are, we all collectively need to concentrate on that statement. It’s neither a future possibility nor an accomplished fact. We’re in the midst of it, as Bollinger says.
That means that if we’re political people, if we care about the American Republic, if we care about this country, everything we do right now has to be guided toward defeating this takeover. These aren’t one and done things. It’s complicated. It’s often incremental, albeit sometimes unfolding very fast. Gains can be reversed. In the political realm it’s almost a zero sum game with the power of the Democratic Party, simply because that’s the one organized political force in the country that can contest the takeover in the political arena. You may say you’re done with the Democratic Party. And fine … but if you are you’re just going to have to reassemble the more or less identical coalition under a different label. So the difference doesn’t terribly concern me.
But it’s not only politics, or more specifically it’s not only electoral politics.
A free society exists not simply because there are limits on the power of the government. The state may have a monopoly on the legitimate use of violence. But it does not have a monopoly on power. It’s free because there are multiple nodes of power – cultural, economic, social – in the national space. Universities are one of those. The private sector economy is another. There’s another that’s been in the news over the last week. And I’m going to discuss it here briefly because while it can seem sort of niche and on the margins it’s very far from it. It’s the nation’s ‘Big Law’ law firms. It started with an executive order targeting Perkins Coie, a big national law firm headquartered in Seattle.
The actions against Big Law firms may end up being some of the biggest stuff happening right now. As you know, I’m far from someone who takes a lawyer-centric view of the world. But Big Law firms are a critical power node in the US system. Of course there are lots of small firms and independent operators. But that’s like saying there are small independent media outlets like TPM. They’re critical. We’re critical – and hey we’re still in our annual membership drive, so please subscribe! But you don’t want the press to reduced to be just those places. Once that’s all you’ve got civil society is on life support. The Big Law firms provide a lot of the access to the more complex and regulatory-dependent parts of the private economy and commerce. Often you really, really want one those people as your defense lawyer. If the big firms are cowed up into state subservience that’s a really, really big deal.
Now the people who get those kinds of very prestigious and generally very expensive lawyers to work with or defend them tend to themselves be at least relatively affluent and powerful. But that just means that the penumbra of obedience stretches out even further. And in any society the truly powerless need at least some level of support within the structures of power. You may have access to the courts. But if you lack access to the right lawyers your access rapidly becomes notional.
Perkins Coie was the first. And we should note that they are or were at least close to being the law firm of the Democratic Party. (Watch that front in concert with the growing partisan and governmental attacks on ActBlue.) Even if Perkins Coie gets Trump’s attack EO knocked down in court, if you’re a big corporation do you want to work with them? The White House has made it clear it views them as enemies? Why do you want to take that on? It’s the same reason the big diversified corporations that own many of the country’s big news organizations like ABC and CBS have been falling over themselves to settle absurd lawsuits with Donald Trump and hose him down with millions of dollars.
And Perkins Coie wasn’t the last, despite the fact that a federal judge had already blocked Trump’s Perkins Coie order. He has followed up with similar attacks on Paul, Weiss and Covington & Burling.
These aren’t Clarence Darrow type operations. The Big Law world is made up of firms that mostly provide legal services for big corporations and the wealthy, though most of them also do have significant pro bono practices. The top partners make fabulous incomes. They make for imperfect ‘victims’. But this isn’t a Che Guevara poster kind of thing. We need to think coldly and creatively about the multiple nodes of non-governmental authority that make free society viable.
One thing we’ve seen with the universities is that at least mostly and at least up until now each target has been hit and handled the situation more or less alone. I heard from a source this week who shared with me how a sizable flagship public university in a very red state had just taken a bodyblow loss of funding tied to scientific research and they were just trying to lay low, saying as little about it as possible. Clearly collective action is going to be necessary to fight this off, with the universities, the legal profession and numerous other nodes of power the White House wants to bend to its will.
We’ve got a huge job on our hands and there’s no guarantee we’ll succeed. But the first step of acting is knowing exactly where you are. People who are thinking in terms of Viktor Orban are not surprised by each successive move. It’s actually pretty textbook. How it all shakes out comes down to the decisions countless private actors make. It also means supporting institutions that are meaningfully supporting free society. That doesn’t have to be a matter of performative spectacles. At its most essential it means not changing behavior. One bright moment on the Big Law front came last week when the medium-sized but highly prestigious Big Law firm Williams and Connolly took on Perkins Coie’s case and filed a lawsuit in which 14 individual lawyers including the firm’s former chair signed as lawyers on the case.
Again sounds all very insidery and niche. But these are critical nodes of power in a free society. They may be richies and they may be the establishment and a lot of their muscle goes into servicing the powerful. But when their power ebbs the power of the state swells into its place. Meanwhile all the gutting going on inside the government right now is being carried out for the one purpose: that the power of the state is really the erratic and degenerate will of one man: Donald Trump.
MAGA makes no secret of its love for Viktor Orban and his model of degenerate autocracy. It’s not a wink on the side thing or something like getting caught lurking on a white supremacist message board. It’s totally open. They hold their conferences there. It’s totally overt. He’s their ideal.
None of this is good. But clarity in itself has power. Once you know where you are you stop being bewildered by each new development. You begin to be able to construct strategies based on the reality before you. You can take action with a realistic chance of success. The great majority of political media in the United States doesn’t get this or isn’t interpreting the news through this prism. They’re using the prism of conventional electoral politics and DC battles and trying to squeeze the new world into that model, all the while kind of getting and sometimes saying that something doesn’t quite seem to fit. Free media is yet another critical node of power.
I don’t want to re-litigate the events of last week in the Senate. That’s done and you know where I stood. What is still worth saying is that you should have made your decision (and all such future decisions) about the right course of action based on which one was more likely to slow, impede or defeat what Bollinger rightly calls “an authoritarian takeover” of the US government.
This is where we are. Observe, orient, decide, act. The side which acts faster and smarter wins.
