Category Archives: Random Blogging

The Rubber Is Meeting The Road

Paul Weiss, an enormous and influential law firm, and Columbia University, long considered a top-rank institution of higher education, have bent their knees to the bully in the White House. They didn’t offer even token resistance. (Many in the legal community now mockingly refer to the law firm as “Paul Wuss.”)

Their cowardice threatens all Americans.

A recent essay in The Contrarian  quoted Rachel Cohen, a young lawyer who organized a letter of protest against Donald Trump’s unconscionable attacks on lawyers and law firms, and who subsequently resigned from her job at Skadden Arps, which has evidently also bent the knee. (She’s not alone; see The Telegraph, Junior lawyers revolt after bosses bow to Trump ‘intimidation’.)

“Big law has a huge collective action problem,” she said. “[I]t’s because we are so risk averse.”

As the Contrarian notes,

In a real sense, the collective action problem—no one stands up to the MAGA onslaught because no one else is doing it—now permeates much of civil society (including the press, law firms, and universities). Tech barons feel compelled to cough up $1M for Trump’s inauguration because they don’t want to risk being left off the podium. Paul Weiss capitulates for fear other firms will do the same. Faced with oppressive, powerful forces, it is much easier to go along to get along, keep your head down, and not call attention to oneself. (Hence, the entire Republican Party capitulating to Trump.)

At a time when too many Americans measure their worth by comparisons to others’ wealth, status, and influence, the fear of losing something–access to a politician, research grants, social status, or blue ribbon clients–can become paralyzing. “It is called a collective action problem for a reason—it is hard to break the passivity cycle. But that does not mean it is impossible.

The essay suggests changing the incentives. Law firms bending the knee can be ostracized by associates; universities like Columbia should be shunned by students, faculty, and alumni who understand the degree to which compliance undermines intellectual integrity. When institutions face a downside–shaming– for doing the wrong thing, they might be more inclined to stand by their principles.

Meanwhile, other universities can eschew the ground of least resistance. They can pledge to reject attacks on academic freedom. If and when even one prestigious university lays down such a marker, it will cement its own status as a prominent academic institution that leads with integrity. (Also, one or more schools can offer Columbia students the opportunity to transfer, or could agree to hire researchers whose grants were cut. The loss of prestige, students, and top-notch faculty can be a disincentive to cave.)

I would note that incentivising moral/legal behavior is only necessary for institutions lacking the integrity to act on their purported principles without outside pressure.

The Association of American Law Schools has published a blistering letter denouncing Trump’s unprecedented attacks on legal and educational institutions.

Taken together these actions seek to chill criticism, silence those who may seek to hold the executive branch accountable and intimidate lawyers…. The independence of our universities and judiciary, and the ability of lawyers to fully represent their clients, are at the core of our democracy and have long been supported by all Americans, regardless of political party.

The letter called for collective efforts to push back against the Trump bullies, including coordination with alumni, judges, local bar associations, and other schools, and for public and private demonstrations of support for those Trump targets.

As a former lawyer and academic, I found the immediate, craven surrender of Paul Weiss and Columbia incredibly depressing.  A law firm unwilling to defend the rule of law has shamed itself; a University (especially one with an ample endowment, like Columbia) that sells its integrity for a grant betrays the central purpose of academia.

If I were in the market for legal services, I would not employ a law firm that has shown itself unwilling to defend itself. If I was once again seeking an academic position, I would avoid any university unwilling to defend academic freedom.

Several law firms attacked by Trump (Covington and Burling, Perkins Coie, Jenner and Block, and most recently, Wilmer Hale) have refused to fold, unlike Paul Weiss and Skadden Arps. At this juncture, I was able to find only five universities that have publicly spoken out against Trump’s vendetta. The president of Wesleyan, Michael Roth, was first and loudest; he’s been joined by presidents of Mount Holyoke, Delta College in Michigan, Trinity Community College in Washington DC, and Princeton.

Their ranks must increase. The rubber has hit the road.

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How Resistance Succeeds

The number of protests has been skyrocketing nationally. Does it matter?

I described the massive turnouts at Town Halls in Indianapolis last week to my youngest son; he responded “for all the good it will do,” dismissing the effectiveness of such events. But there is scholarship showing that non-violent protests by a sufficient percentage of the population have succeeded in overcoming autocracies elsewhere.

And what is a “sufficient percentage”? Three and a half percent of the population!

If turnout at the past week’s nationwide town halls is any indication, reaching three-and-a-half percent should be very do-able. According to Google, there were 340 million Americans as of 2024. Three and a half percent would mean that we need to turn out 11 million 900 thousand nonviolent protestors.

The pre-eminent researcher in the field of protest efficacy is Erica Chenoweth of Harvard, who co-authored the book, “Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict.” In the linked interview, she explained why civil resistance campaigns that are non-violent attract many more people than violent insurrections like the horrifying one we saw on January 6th (as she notes, it’s in part it’s because there’s a much lower barrier to participation compared with picking up a weapon). It isn’t sheer numbers, of course–she explains the other factors that were necessary to successful resistances in the countries she’s studied.

There are four of them:

The first is a large and diverse participation that’s sustained.

The second thing is that [the movement] needs to elicit loyalty shifts among security forces in particular, but also other elites. Security forces are important because they ultimately are the agents of repression, and their actions largely decide how violent the confrontation with — and reaction to — the nonviolent campaign is going to be in the end. But there are other security elites, economic and business elites, state media. There are lots of different pillars that support the status quo, and if they can be disrupted or coerced into noncooperation, then that’s a decisive factor.

The third thing is that the campaigns need to be able to have more than just protests; there needs to be a lot of variation in the methods they use.

The fourth thing is that when campaigns are repressed — which is basically inevitable for those calling for major changes — they don’t either descend into chaos or opt for using violence themselves. If campaigns allow their repression to throw the movement into total disarray or they use it as a pretext to militarize their campaign, then they’re essentially co-signing what the regime wants — for the resisters to play on its own playing field. And they’re probably going to get totally crushed.

As she notes–and as the emerging American resistance has found– protesting can take many forms other than street demonstrations.

People have done things like bang pots and pans or go on electricity strikes or something otherwise disruptive that imposes costs on the regime even while people aren’t outside. Staying inside for an extended period equates to a general strike. Even limited strikes are very effective. There were limited and general strikes in Tunisia and Egypt during their uprisings and they were critical.

Chenoweth cautions that preparation for most of these methods is essential, noting that successful strikes or other methods of economic noncooperation have often been preceded by months of stockpiling food, coming up with strike funds, or finding other ways to engage  community mutual aid while the strike is underway. Here in the U.S., organizations like Indivisible have demonstrated that capacity for planning and organization, and together with other grassroots organization, they’ve proven their ability to turn out large numbers of citizens.

What is so encouraging about Chenoweth’s findings is that “large numbers” does not equate to “large percentages.” As she says,

a surprisingly small proportion of the population guarantees a successful campaign: just 3.5 percent. That sounds like a really small number, but in absolute terms it’s really an impressive number of people. In the U.S., it would be around 11.5 million people today. Could you imagine if 11.5 million people — that’s about three times the size of the 2017 Women’s March — were doing something like mass noncooperation in a sustained way for nine to 18 months? Things would be totally different in this country.

April 5th should provide us with an initial indication of whether engaging that percentage will be possible. On April 5th, Indivisible and several allied organizations are mounting a nation-wide Day of Action, telling this lawless administration “Hands off our healthcare, our social security, our democracy!” Here in Indianapolis, it will take place at the Statehouse, from noon to 4:00.

I plan to be there, and hope to see many of my local readers.

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We The People

Wednesday night I attended an “Empty Chair” Town Hall, and I was absolutely blown away–in a very good way–by the event.

I was one of three people who “kicked off” participant testimonies with brief descriptions of what we are currently facing. My assignment was to explain why DOGE and the majority of Trump’s Executive Orders are unconstitutional; the other two addressed assaults on Medicaid and Women’s rights.

Here’s what I said:

Under the Constitution, Congress has exclusive power to raise revenue and “pay the Debts and provide for the common Defense and general Welfare of the United States.”  The Appropriations Clause states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” DOGE has never been authorized as a government unit of any kind, and it is exercising financial decision-making that the Constitution vests exclusively in Congress.

Accordingly, every decision DOGE has made and is making is illegal and unconstitutional until and unless ratified—or more properly, authorized in advance– by Congress.

Most of Trump’s increasingly incoherent, petty and autocratic Executive Orders are similarly unconstitutional. Most of them violate the Separation of Powers—a structural element fundamental to America’s constitutional system. The most blatant example was his effort to use an Executive Order to overturn birthright citizenship, which was established by the 14th Amendment. A president cannot amend the Constitution via Executive Order.

An Executive Order is defined as a written directive signed by the president, that orders agencies of the federal government to take specific actions in pursuance of the Executive’s duty to ensure that the laws of the nation “be faithfully executed.” To the extent that such orders apply to matters not properly within the Executive’s authority, they are legally unenforceable.

Trump’s disdain for the Constitutional limits on his authority have plunged the nation into a full-blown Constitutional crisis.

Following those first, very brief presentations, some sixty people (out of the nearly 600 in attendance) lined up to address that empty chair. They were a cross-section of ordinary Americans (not a “coastal elitist” to be seen)– working class folks, a mixture of young and old people, retired folks– and they were amazing.

Don’t take my word for it: here is a link to the recorded livestream.

The citizens who turned out on a week-night (and presumably those watching via the livestream) wanted Todd Young to know that they are angry at his lack of a backbone, and his failure to live up to the oath of office that he took both as a Marine and as a Senator. They wanted him to understand how this rogue administration’s attacks on government are harming Hoosiers–the shutdowns of mental health services, the refusals to pay funds legally due to local nonprofits, the disregard of Free Speech and due process guarantees, and especially the persistent, vicious assaults on America’s diversity.

The people addressing that empty chair were passionate, but more significantly, their charges of malfeasance were accurate. They’d done their homework. The people who attended that Town Hall were the epitome of the “informed electorate” that sustains democratic regimes. When I left, I felt more positive than I have since the election.

The Town Hall’s organization by the Central Indiana Indivisible Chapter was flawless–there were volunteers directing traffic (which significantly overflowed the church’s large parking lot); and others inside directing attendees, managing microphones and herding the people waiting to testify. The crowd was more than just energized–attendees applauded speakers, booed references to Trump and Musk, and clearly demonstrated their intent to protect the America they value–an America where every person is (at least theoretically) valued.

The minister who welcomed the crowd emphasized that message, insisting that “Everyone is welcome here,–we don’t care what color you are, we don’t care who you pray to or whether you pray, we don’t care who you love. You are valued and welcome here.” Several of those who spoke made a similar point: America is a land of immigrants, a “melting pot” (or “tossed salad”) of diverse folks–and that is our strength. That is what makes America great. That is the beauty of We the People, and we will fight to retain it.

If Senator Young is too weak and intimidated to join the fight for America, the people in that Town Hall will find someone who isn’t weak and intimidated to replace him.

If you weren’t there, I really, really hope you will watch the recording. We the People are beautiful.

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It Isn’t “Rigging”–But It’s Just As Bad

Our mob-boss-channeling President attributes any losses he experiences to various nefarious plots against him–that poll was rigged, that data has been tampered with…and especially, he couldn’t have lost that 2020 election fair and square, it must have been “rigged.” His inability to grow up has infected the MAGA cult, which is now busy deconstructing things they very obviously don’t understand. 

Just as there are perfectly reasonable efforts to improve government efficiency–efforts that don’t require destroying the village in order to save it–there are deficiencies (mostly unintentional) in election administration that operate to disenfranchise voters and skew election results. Here in Indiana, where Republicans rule and don’t worry a lot about the consequences of what they’re doing, those sloppy irregularities can significantly affect close elections.

That was in all likelihood the case in the contest between Tiffany Stoner and Becky Cash for Indiana House District 25–a race Stoner lost by 64 votes our of several thousands cast. I don’t understand why the Democrats didn’t demand a recount, given the extensive evidence of irregularities the party uncovered in the two weeks following the election.

A Democratic compendium of those irregularities included the following:

Approximately 280 absentee mail-in ballots were rejected across Hendricks County. The clerk’s office never gave a definitive and accurate number despite several requests.

An unknown number of absentee ballots were sent to voters without the required security initials from the clerk’s office. After the error was discovered, the clerk knowingly chose not to inform voters that their ballots would be rejected due to the office’s mistake. Consequently, any completed and returned ballots were not counted, and the affected voters remain unaware of this issue. 

Voting machines were left unattended at polling locations overnight, raising concerns about their security. One machine was powered off and its votes were not even tallied until the following day, while another was found to be broken and went unused. 

The county clerk’s office rejected dozens of absentee ballots, citing signature mismatches. However, signatures can vary due to changes in style, age, illness, or disability. Notices were sent via the postal service to affected voters on November 7th, requiring them to submit a signed affidavit by 12 noon on November 13th. This left voters with very little time to address the issue and resolve the rejection.

The county election board rejected a military ballot, claiming the signature did not match the one on file. This decision denied an active-duty service member, currently defending our freedoms, their vote. Moreover, they were not provided the legally required notice or opportunity to correct the issue.

Mistakes occurred in voter registration and the transfer of registrations between government agencies. For instance, the BMV failed to include a voter’s signature in one case. In other instances, voters who registered through the Secretary of State’s portal discovered their registrations were never processed. One voter with an Indianapolis address, but residing in Hendricks County was forced to vote provisionally after their registration was erroneously sent to Marion County.

Inspectors weren’t present at any early voting site. This is required by statute on election day and most counties employ these same secure practices in early voting.  One description we received from a poll-worker said, “everyone and no one was in charge.” We even discovered an instance where a librarian gave the keys to the room where voting machines were secured to a poll worker without confirming their identification.

These errors very obviously disenfranchised some number of voters. (You might expect the party of “election integrity” to care, but you’d be wrong. It’s not about integrity; it’s all about winning.) Whether these lapses in competent administration would have changed the outcome of that election is unknown, but the mere number of errors certainly should affect voters’–and candidates’– confidence in the system.

In the wake of the election, several Democrats have called for the creation of a nonpartisan voter protection organization. In stark contrast to the typical GOP whining about the “unfairness” of losses and unfounded accusations of “rigging,” that proposal sounds…what’s that word…adult.

In fact, looking into the documented irregularities of the Hendricks County vote prompted me to contemplate the differences between Democrats and MAGA Republicans that are demonstrated by their responses to election losses. It occurred to me that America’s political polarization isn’t between the informed and uninformed, or the educated and uneducated–striking as those divisions are.

It’s between grown ups and children throwing tantrums.

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What Did You Do In The War?

Ah, the parallels…

Those of us of a “certain age” can recall media reports of post-World War II German children asking their grandparents very uncomfortable questions, mostly versions of “What did you do during the war, grandpa?” We may well be approaching a time in the United States where a version of that question becomes widespread.

A year or so ago, Saturday Night Live aired a mock interview with a German woman who responded to a question about America’s “alt-right” MAGA movement by saying “In America you call it the alt-right, in Germany we call it ‘why Grandpapa lives in Argentina now.'”

A number of historians have documented the embarrassing connections between America’s Jim Crow laws and Nazi anti-semitic legislation. I will admit to being one of the clueless folks who believed we had surmounted–okay, begun to surmount–the ignorance and prejudices of former generations. If the current Trump/Musk assault on basic American principles proves anything, it proves how very wrong that belief has turned out to be. You really have to be purposefully blind to ignore the virulent bigotry that allowed Trump to win election (narrowly, to be sure) and reward his supporters with his anti-diversity rampage, or to downplay the pro-Nazi enthusiasm of Elon Musk, which was evident well before his “heil Hitler” salute.

So here we are. And assuming (as I devoutly hope) that this horrific time will pass and reasonable people will once again gain control, those of us experiencing this effort to re-install the Dark Ages should expect that same post-Nazi question: what did we do to counter the assault on American values? How did we respond to the neo-Nazi ugliness threatening our Constitutional liberties and social progress?

What did we do during this war for America’s soul?

I thought about that question when I came to the end of one of Robert Hubbell’s daily letters. Hubbell had been writing about Trump’s effort to punish law firms for the unforgivable sin of representing people he considers enemies. But as he concluded, the challenge to our most deeply-shared moral commitments extends more widely.

We are living through a consequential moment in our nation’s history. There is a “right” side and a “wrong” side to that history. Someday in the not-too-distant future, there will be a reckoning in which everyone—individuals and institutions—will be called to justify their response in a moment when democracy was under attack.

Institutions with proud histories will be forced to explain why they abandoned their commitments to fairness, justice, and human decency at the first opportunity. Were they afraid? Or greedy? Both? Or—worst of all—did they not care?

Were their lofty “mission statements” mere PR exercises to make themselves feel good and attract young talent with false promises about the firm’s values? Were their commitments to equality and inclusion something they never truly believed? Was it all “for show”?

Those are uncomfortable questions with deeply troubling answers.

We must choose to be on the right side of history—because it is the right thing to do. Do not surrender to fear or intimidation. Lift up those who are being attacked for defending the rule of law. And make known your displeasure with the products and services of those who are sponsoring Trump’s frontal assault on the rule of law.

But most importantly, make a personal commitment to do everything you can to help defend democracy in its hour of need. Make your future self proud by doing the right thing at a time when doing so takes courage and determination!

The most anguished question I get from readers of this blog–and I get it almost every day–is “what can I do?” And it’s a fair question. Most of us have limited means of protesting, and the means we do have are arguably of limited effectiveness. Still, when we get that “what did you do” question, at the very least we should be able to answer that we repeatedly called our elected officials, attended town halls, worked with one or more of the burgeoning number of grassroots organizations, attended protests and participated in boycotts of companies and firms that are knuckling under.

We should also be able to say that we shared factual information with friends and family members living in those “alternative” realities.

Repeat after me: real Americans are identified by their devotion to and protection of the American Idea-– not their skin color or religion. When your grandchildren or great grandchildren ask what you did when Trump/Musk attacked the American Idea, be sure you don’t have to answer from Argentina.

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