Courage versus Complicity [updated]

How to identify a complicit settlement over the confession of error

As retired Admiral Mark Montgomery recently put it, the strategy of Donald Trump is not unusual “if you’re watching the Sopranos.” It is unprecedented for a president. In a single word, our commander in chief is an extortionist. He makes threats that exceed his authority, and he counts on his targets recognizing that it is cheaper to give in to those threats than it is to fight them. Seven months into the extortionist’s reign, almost every target has caved.

“Extortion” is a bold word. Let’s be precise about its meaning. Extortion involves the attempt to get something of benefit from another person through the wrongful use of force, threats, or coercion. The critical word in that sentence is “wrongful”: If the Department of Justice believes in good faith that a target has committed a criminal or civil wrong, and threatens prosecution unless that target settles, that is not extortion. But if a government official threatens prosecution or the withholding of a contracted benefit when the target has done no wrong, then that act is extortion. And conceivably, the target’s giving in could even be viewed as the payment of a bribe.

The clearest examples of this pattern so far have been Trump’s extortion of law firms. Almost immediately after coming to office, Trump issued a series of illegal executive orders targeting law firms that had represented clients adverse to Trump. Nine firms eventually agreed to give Trump $1B in free legal services in exchange for him dropping the threats against them. Four firms fought back. All four won their cases in the district court. (You can track the progress of the cases and their appeals here.)

The unanimous conclusion of the district courts affirms that the threats were illegal. That suggests the President’s actions were extortion. By settling with the President, the 9 firms were giving in to that extortion, giving the President “something of value” in exchange for his official act. As John Kecker told 60 Minutes, that act by those firms could well constitute bribery. (Keker and others penned an extraordinary oped in the New York Times at the start of this fight which ended with an extraordinary (for the Times) plea: “For God’s sake, stand up for the legal profession, and for the Constitution.”)

Trump’s extortion, of course, reaches far beyond the law firms. He has threatened news organizations (CBS, ABC, WSJ) and news-ish organizations (Meta, X). And he has threatened universities (Columbia University, Cornell University, Northwestern University, University of Pennsylvania, Brown University, Princeton University, UCLA, and my own university, Harvard).

The cowardice of the media organizations is unspeakable, though differently unspeakable depending on the organization. Meta and X are not serious news organizations. Their caving to extortion is just the cost of doing business. ABC apparently caved because of embarrassing discovery. But CBS’s cowardice was completely inexcusable for a news organization. The cause of action against 60 Minutes would have earned any normal lawyer legal sanction. The idea that it justified a $16 million settlement is absurd — as is agreeing to a “bias monitor” in exchange for a merger approval. Only the WSJ has stood firm against the President’s baseless threats, making them the first conservative opponent of the President with the power to prevail against him.

The claims against the universities are more complicated. The foundation for the President’s actions has been Title VI, which bans
discrimination in federally funded programs, and charges of antisemitism at these universities. But as Ben Eidelson and Deborah Hellman explain, Congress limited Title VI claims of discrimination to “race, color, [and] national origin.” Unlike Title VII, it does not protect against discrimination on the basis of religion. That weakens substantially the administration’s claims against the universities. And independently of those weak claims, the administration has no basis for threatening unrelated funding as a remedy for any alleged discrimination. The President certainly has no basis for insisting on monitors to ensure the content of academic work fits his conception of right and good.

So far, only Harvard has responded to the President’s threats through litigation. That resistance triggered an extraordinary response across the world, as the “veritas” school essayed to speak truth to power. But as the Times reports today, even Harvard is considering settling with the President as a way to make the fight go away.

We should be clear about principles in advance of any agreement.

• Giving in to extortion is complicity with extortion. No doubt, that is understandable for some. If a thug threatens “your money or your life,” give him the money. But yielding doesn’t change the character of the act. It just makes it understandable.

• For any ordinary business, giving in makes perfect sense individually. Apple is just a business. Its purpose is to maximize shareholder value. If it settles a baseless claim, plausibly, the only question that should be asked is whether it gave more than was necessary, and possibly whether that something more would constitute a bribe.

• But for an organization that is more than a mere profit maximizer, giving in is a betrayal — if indeed, the organization is innocent of the claims made against it. CBS caving was a betrayal of its obligations as a news organization—given the charges against it were baseless. And likewise, Harvard giving in would be a betrayal, if indeed it is innocent of the charges made against it.

• This is why it would be a mistake for Harvard to settle while admitting no wrong. I don’t know the facts. I do know the Harvard President’s task force found significant examples of antisemitism on Harvard’s campus. Of course, independent of Title VI, that finding demands a response by Harvard to fight that antisemitism and any hatred against any religious or ethnic group, including Muslims and Palestinians. But the precise question Harvard needs to answer is whether it believes its acts could provide a good faith basis for legal action by the Administration against it. If it does, then any settlement should admit as much, for admitting the wrong would transform complicity with extortion into a confession of error. And if there is legal error, let us confess it and correct it as quickly as possible.

• Yet even that confession could only reach so far. The Obama Administration, for example, pursued Title IX and Title VI actions against universities aggressively. (Here’s ChatGPT’s summary of those actions.) But any threat under those Titles was proportionate to the wrong. The Obama Administration, for example, did not threaten to cut off research funding at university hospitals because of allegations of sex discrimination at undergraduate colleges. So while confessing error justifies some remedial response, it cannot justify paying damages far exceeding any plausible claim that the government could make against the university. Compare: If I hit your car and dented your bumper, but you in return pulled a gun and demanded $1M in damages, my paying even $100k is not my confessing error and settling a claim. My paying $100k is my complicity in your extortion.

• I get the exhaustion of any institution like Harvard with this President, though I think it is naive to believe any settlement is a settlement. A settlement with this President is a reprieve, until a news cycle demands a new distraction. The reality is that in the Bannon-esque world we live in, Harvard is a perpetual distraction, settlement notwithstanding. But exhaustion makes an act understandable, just as the threat of extinction makes an act understandable. It doesn’t change the character of the act.

tl;dr: If my university agrees to settle without a statement of the form "we acknowledge our liability and are agreeing to a payment proportional to that liability," my university will have joined the long list of institutions that populate our Sopranos-like universe. It will have only strengthened the power of this most dangerous executive in his quest to destroy the independence that free society depends upon.

That is what every "strong" person or entity or institution is doing just now: Strengthening the power of this most corrupt president. If a decade ago, just as this man was entering the 2016 race, you had asked me whether the institutions and individuals that defined America would ever give in to this form of extortion, I would have said "no." The billionaires, I would have said, have enough. They could afford to lose a bit to save their soul. The same with the lawyers: Every one of them entered law school imagining that they would have the courage to do right; none believed they would sell right for so little. The same with the press, all of them imagining they were Woodward and Bernstein reincarnated. The same with the academics. I would never have imagined that any of these strong souls would cave so easily, and to such a pathetic opponent. This isn't FDR, or Lincoln. They are caving to an economic, historical and cultural illiterate who happens to have the superpower for the age of the fantasist: The ability to live life unconstrained by truth.

Watching this happen explains so much. How often have people wondered how Germany in the 1930s was possible? How easy it is to understand that now that we have seen this. None of us can imagine choosing to lose, not everything, but something substantial. So we sell the most important thing - integrity - just to keep what we have. 

It is the same as it ever was.