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The Trump administration is back in court this week, in a series of matters inextricably linked to the future of our democracy.
Harvard Case Oral Argument
In President and Fellows of Harvard College v. Department of Health and Human Services, Harvard has filed a motion for summary judgment, asking the court to rule in its favor because there are no disputed issues of fact. In June, the government filed a cross-motion, asking for summary judgment in its favor. This is not altogether unusual, as parties tend to see the case from a one-sided vantage point as trial gets closer. This is the last major stage before the case gets there. If neither party is granted summary judgment, there will either be a settlement or a trial.
In April, the Trump administration went to war with Harvard. It cut off billions of dollars in federal grants, which fueled the school’s research work and, arguably, American genius. Harvard sued the administration. It argued that it was entitled to have the funding it had relied upon restored. The complaint leaned heavily on the First Amendment.
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On June 2, Harvard filed the motion for summary judgment that the court will consider in a Monday hearing. Briefing by the parties followed and is complete. But something highly unusual happened. The docket is full of motions requesting permission to file amicus—or “friend of the court”—briefs, and Judge Allison D. Burroughs seems to have granted virtually all of them. Here’s just one example.
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There are 227 entries on the docket as of the time I’m writing to you on Sunday, and a significant number of them involve lawyers who aren’t admitted to the practice of law in the federal district court in Boston asking for permission to be involved in the case, many of them involving the filing of amicus briefs. I haven’t had the chance to review all of the briefs, but many seem to side with Harvard, delving deeper into one or more of the issues like a brief from the ACLU on the First Amendment and academic freedom, one from 23 research institutions that focuses on the threat to advances in scientific knowledge, and one from scholars in Jewish studies that takes the administration to task for promoting harmful stereotypes while claiming concern about antisemitism.
The administration has made the typically over-the-top sort of demands of Harvard that it has made of others, not only universities, but law firms and media outlets too, for example. Although there were reports of negotiations, Harvard, for whatever reason, has chosen against bending the knee. The administration’s demands of it early on included changing its policies on hiring, admissions, and faculty influence to insert right-wing conservative views, compulsory reports to the government, and audits of its academic programs and departments. It is nothing less than a Nazi-style effort to reroute academic freedom into something designed to support the prevailing views of those in power. But there is no doubt that the situation leaves Harvard vulnerable to Trump in a way that should make all of us nervous, regardless of where and how we were educated. The effort to bring one of the most powerful schools in the country to heel is a mark of just how far this president is willing to go in his crusade to end democracy.
The motion for summary judgment lays out the situation with precision:
“Over eight decades, the Government has paid researchers at … Harvard … to conduct scientific research around priorities established by the Government and compensated through competitive awards of federal funds.”
“That funding has enabled life-altering breakthroughs in medicine, life sciences, and computing (to name just three areas), and it has helped make the United States a global leader in scientific and technological innovation.”
“Over the last two months, the Government has abruptly terminated federal research funding to Harvard. Citing concerns about alleged antisemitism and ideological bias at Harvard, the Government presented a list of ‘conditions’ that Harvard must satisfy in order to continue receiving federal funding, which included government oversight of the balance of viewpoints at Harvard.”
“Because Harvard would not allow itself to be taken over by the Government in violation of the First Amendment, it rejected the Government’s demands.”
Harvard also argues that “the Government’s actions are arbitrary and capricious because they bear no rational connection to the concerns they purport to address, fail to consider the significant consequences of indefinitely freezing and terminating billions of dollars in federal research funding, and ignore the substantial reliance interests engendered by that funding.” At bottom, even if there were truth to the allegations of antisemitism, which declarations from the plaintiff’s top employees and numerous of the amicus briefs reject, pointing out the lack of a factual basis for them, there is no rational connection between that issue and the government’s decision to cut off billions of dollars in funding. It’s precisely the sort of arbitrary and capricious behavior by a president that Congress passed the Administrative Procedure Act to prevent.
There is likely to be an appeal from the Judge’s decision. If she resolves all of the issues in the case by granting summary judgment to one party or the other, it will be an appealable final order. The government has argued the case must go to a specialty court in the District of Columbia and that Judge Burroughs lacks jurisdiction over the matter, and will likely want to pursue that issue, along with substantive ones, if it is the loser.
The case is ultimately headed, whether now or later, to the Supreme Court for it to rule on that issue, as well as the First Amendment one and a Title VI issue involving when funding can be revoked due to discrimination. It will be one more moment when the Supreme Court will have the opportunity to draw the line on the power grab Trump is making, supposedly on behalf of the presidency, but really for himself. The question is whether this Court has any appetite to quell the imperial presidency.
More on Epstein
On Friday, the government asked a federal judge in Manhattan to unseal grand jury testimony that resulted in the indictments against Jeffrey Epstein and Ghislaine Maxwell. Epstein was detained on those charges when he allegedly committed suicide while awaiting trial. As we discussed Thursday night, it’s likely this isn’t the treasure trove of information the public seems interested in; it could just be one or more summary witnesses, agents who recap the key evidence necessary for the grand jury to indict. Politico reporting seemed to confirm that Friday evening.
Recognizing that it doesn’t fall within any of the circumstances set forth in the Federal Rules of Criminal Procedure for violating grand jury secrecy, the government argues that the Second Circuit Court of Appeals has held there are other reasons for doing so. They argue the historic public interest in this case merits it and that they will redact information about victims.
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It’s easy to see the potential here for this to get tied up in court, with Trump playing for time and hoping something new will come along to knock this off of MAGA’s radar screen. Unfortunately, the presidency gives Trump broad opportunity to manipulate any number of events that could take center stage, although, as even the government’s motion points out, MAGA’s fascination with Epstein has had staying power.
Trump Sues The Wall Street Journal for Defamation
After the Journal ran its reporting suggesting Trump contributed a crude drawing of a nude woman to a collection of birthday letters for Jeffrey Epstein, using a thick black marker to sign his name where the woman’s pubic hair would be and writing about shared “secrets,” Trump threatened to sue. And after a large number of people took to social media to point out he often threatens without following through, Trump actually did sue.
A spokesman for Dow Jones, the parent company of The Wall Street Journal, released a statement saying, “We have full confidence in the rigor and accuracy of our reporting, and will vigorously defend against any lawsuit.”
In order to prevail, Trump would have to establish that the WSJ acted with “reckless disregard” for the truth or falsity of the story they ran, proving either that they knew it was false when they ran it or that they carelessly ignored facts they should have taken into account. Trump would also have to prove damages stemming from the incident, which one might think would be hard to do, given the prior civil judgment against him for sexually assaulting E. Jean Carroll, far worse than penning a lewd birthday greeting, and the Stormy Daniels incident, where a jury concluded he paid for sex and then sought to criminally conceal it. He would seem to be what lawyers often call a “judgment-proof plaintiff,” given the difficulty of establishing that any further harm to his reputation is possible.
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