Can the ACLU Stop Trump?

New legal director David Cole thinks he knows how.

On a sunny afternoon in the first week of January, I met David Cole at his office at Georgetown Law Center. In a few days, he would officially take over as national legal director of the American Civil Liberties Union—but first he had to finish grading exams. Tall and gangly, with wire-rim glasses and unfussy clothes a size too big for his skinny frame, Cole looks every bit the public interest lawyer and professor he has been for nearly three decades. At fifty-eight, he has a permanently tousled mop of thinning gray-brown hair and an open, boyish face that breaks easily into a grin.

It was lunchtime, so we headed down to the cafeteria. Around mouthfuls of tuna sandwich, Cole ruefully recalled his expectations for the ACLU job when he accepted it last summer. “I, like everybody else, thought that Donald Trump didn’t really have a chance,” he said. Hillary Clinton would win the presidency and pick Antonin Scalia’s replacement, and Cole would get to spearhead the ACLU’s effort to move the law to the left under the first liberal Supreme Court majority since the 1970s. “And no memos were written on ‘What if Trump wins?’ ”

You know what happened next.

“On November 8, the job completely changed,” Cole said. “Suddenly, instead of thinking about incremental ways to advance the law in a more progressive direction, we’re in full defense mode.”

Trump’s election made certain jobs matter much more than they would have in normal times. Cole’s is one of them. As a candidate, Trump specialized in constitutionally suspect policy proposals: criminalizing abortion, “national stop-and-frisk,” mass deportations, a Muslim registry. Democrats in Congress simply don’t have the numbers to stop Trump from following through, and Republicans don’t appear interested. That means the only plausible place to challenge him is through the legal system.

As legal director of the ACLU, Cole is the new top lawyer of the largest and most powerful public interest law firm in the country—one whose war chest has exploded since the election, thanks to an enormous spike in donations. He supervises about 100 litigators in its national offices in New York and Washington, D.C., and provides support and advice for the 200 or so lawyers in the affiliate offices across all fifty states. (Those numbers are set to grow as the ACLU spends some of its new funds.) He is also, in the words of ACLU executive director Anthony Romero, “the keeper of the keys to the Supreme Court docket,” personally signing off on everything filed at the high court, and potentially arguing cases himself.

On his third day on the job, in January, Cole testified at the Senate Judiciary Committee hearing on Jeff Sessions’s nomination to be attorney general, where he delivered a lacerating critique of Sessions’s record on civil rights and sparred with Senator Ted Cruz. Two weeks later, he was editing the ACLU’s briefs in three high-profile Supreme Court cases, about transgender bathroom access, immigration detention, and voter suppression in North Carolina. Then, late that Friday afternoon, the Trump White House tossed its first bomb: an executive order temporarily banning immigration from seven Muslim countries and shutting down the refugee program.

The ACLU had been preparing for this moment since the election. Within minutes, its immigrants’ rights project had teamed up with a student clinic at Yale Law School, the National Immigration Law Center, and the International Refugee Assistance Project to file a case on behalf of two Iraqi men detained at John F. Kennedy Airport. Meanwhile, something astonishing was happening: thousands of ordinary people were flocking to airports around the country to protest the ban.

By Saturday afternoon, Lee Gelernt, deputy director of the immigrants’ rights project, was arguing their case in federal court in Brooklyn, and by around 9 p.m., the judge had issued a ruling blocking the government from deporting anyone who had been detained under the order. Gelernt and Romero emerged from the courthouse to a crowd of hundreds of cheering supporters. In the first of many looming battles with Trump, they were the first to draw blood.

The ongoing fight over the immigration ban is a preview for what any successful resistance to Trump will have to look like: swift, coordinated action in the courts combined with extensive public mobilization. No one is more sensitive to the interplay between these two forces than Cole. In fact, he wrote a whole book about it. In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, published last year, Cole argues that constitutional rights must be won in the court of public opinion before they can be vindicated in courts of law. Civil society groups like the ACLU lay the groundwork for change by working simultaneously through many channels—state and international law, information requests, media campaigns—to shift public and expert opinion.

“In the end, I’m optimistic that our institutions are stronger than the will of a populist demagogue, even if he doesn’t back off,” Cole said when we first spoke, over the phone, in late November. “It’s not like they’re stronger in some essential or abstract way; they’re strong enough if people are concerned enough, if institutions push back enough. If people don’t resist, if people accept it, if people are chilled from expressing resistance, then I don’t think there’s anything magical about our institutions that will necessarily stop him.”

Cole takes the helm of the ACLU’s litigation team when the organization enjoys more popular support than perhaps at any other time in its ninety-seven-year history. Because civil rights are by definition protections against majority rule, the ACLU has made its reputation representing some of the most unpopular members of society, like when it successfully defended the First Amendment right of Nazis to march through Skokie, Illinois, at the Supreme Court in 1977. In the 1988 presidential campaign, George H. W. Bush played up the image of the ACLU as outside the American mainstream when he accused his opponent, Michael Dukakis, of being a “card-carrying member of the ACLU.”

The perception of the ACLU as a bunch of First Amendment zealots defending misfits and Communists began to shift after 9/11, as the organization emerged as one of the most dogged opponents of the war on terror. But the election of Trump vaulted it to the mainstream of liberal American civic life overnight. For the year 2015, total online donations added up to $3.5 million; for a few days after the election, people were giving a million dollars per day. The immigration ban triggered an even bigger flood of donations: $33.9 million in three days, according to an ACLU spokesman. The organization estimates that its active membership has more than doubled since October, from around 500,000 to more than a million.

The ACLU is far from the only organization gearing up to defend constitutional rights under a Trump presidency, but it’s certainly the most prominent. Unlike most legal nonprofits, which specialize in a particular area of law, the ACLU is set up to defend the full spectrum of constitutional rights (though conservative critics note that it doesn’t seem to care much about the right to bear arms). That makes it a natural clearinghouse for liberals and libertarians who can’t decide what to be most scared about. Cole himself has been litigating and studying just about every area where the ACLU is active since he was in his twenties. He has defended the First Amendment rights of artists and political protestors at the Supreme Court; challenged bans on using federal funds for abortion counseling; and, since long before 9/11, defended Muslims from prosecution and deportation in the name of national security. “David is the perfect top lawyer for this organization,” said Romero. “He’s someone who comes at it as one of the great legal minds in the country, but also someone who thinks about a diversity of tactics and strategies that need to be employed in addition to litigation to make a difference.”

In Engines of Liberty, Cole writes, “Framing and messaging are as essential to a constitutional campaign as formal legal argument.” His job now is to do both. Since long before his official start date, he has been helping craft the ACLU’s legal argument against the immigration ban—namely, that Trump’s extensive public comments prove that the ban was designed to target Muslims and favor Christians, in violation of the First Amendment right to freedom of religion. At the same time, he has been making that argument relentlessly in public forums. A longtime contributor to the Nation and the New York Review of Books, among other outlets, he churns out legal commentary incredibly quickly. The morning after the Ninth Circuit Court of Appeals upheld a nationwide freeze of Trump’s policy—and noted that the claims about Trump’s intent “present significant constitutional questions”—Cole had published a reaction on the New York Review of Books website. By evening, he had an op-ed in the Washington Post arguing that Trump’s immigration order, coupled with his public comments, is “like a governor signing a ‘voter ID’ law and simultaneously holding a news conference to announce that the purpose of the law is to suppress black votes.”

By breaking down the legal theory against Trump’s order into plain English, Cole hopes both to persuade undecided readers and to energize those who already care. In a 1992 law review article, he noted that the ACLU historically faced the “tension inherent in appealing to the mainstream while representing those whom the mainstream seeks to suppress, silence, or exclude.” If the ACLU is more mainstream than ever, it’s because Trump has largely dissolved that tension. “He is so divisive, and so threatening, that he is, ironically, a great unifier,” said Cole. “He is uniting people who care about civil liberties and civil rights like I’ve never seen before in my career as a lawyer.”

As legal director of the ACLU, Cole is the new top lawyer of the largest and most powerful public interest law firm in the country—one whose war chest has exploded since the election, thanks to an enormous spike in donations.

Cole almost didn’t become a lawyer at all. He graduated from Yale in 1980 with an English degree, aspirations to be a journalist, and no idea what to do next. So, like many gifted young people who were ambitious but unfocused, he applied to Yale Law School, which had a reputation as the liberal arts college of law schools. He got waitlisted. He was about to move home to Chicago and take a job trading stock options when, in the last week of August, he got a letter from Yale asking if he could start in a week.

“So I was the last person admitted to that class,” Cole said. “Someone pulled out at the last minute and they said, ‘Who can we pull in?’ ”

At law school, Cole kept taking classes in the English Department and wrote arts reviews for the undergraduate newspaper. “He had deep ambivalence, maybe more, about wanting to do law,” said Owen Fiss, one of Cole’s first-year professors. “He wore a black jacket, high-top sneakers. He was interested in being a jazz writer.”

An internship at the Center for Constitutional Rights changed his mind. The CCR is a scrappy public interest firm in New York City that specializes in long-shot constitutional litigation. It was the Reagan era, and Cole worked on lawsuits to shut down some of the administration’s aggressive foreign policy adventures in Latin America and eastern Europe. He laughed when I asked if any of those suits were successful: of course not. Still, he was intoxicated by the work. The CCR “just had kind of a chutzpah that I hadn’t seen anywhere else,” he said. He put in forty hours a week during his last year of law school, taking the train back to New Haven to attend classes a few days each week.

One lawyer Cole worked with was Jules Lobel, who is now president of the CCR. “At that point, I realized that he was going to be a star,” Lobel told me. “He wasn’t like any other law student that I’d worked with. His intelligence, his articulateness, and his writing—all three of those in combination were far better than any law student that I had ever worked with. It was better than most lawyers that I’d worked with.”

After graduating and clerking for a federal judge, Cole returned to the CCR as a staff attorney. His caseload grew “serendipitously,” he said, giving him early experience with a broad range of civil liberties issues. In one early case, he successfully defended the American-born writer Margaret Randall, who had become a Mexican citizen in the 1960s and was facing deportation under a McCarthy-era statute because she had written favorably of the Communist governments in Cuba, Nicaragua, and Vietnam. After that, he was contacted by the lawyers for a group of Palestinians who were being held in a California prison. The government, claiming national security interests, was refusing to share the evidence against them. It charged them under the same anti-Communist statute, since they allegedly had ties to a branch of the Palestinian Liberation Organization that dabbled in Marxism. “They charged them with ‘world Communism,’ and the lawyers out there said, ‘Well, has anyone done a Communism case in the last thirty years?’ ” Cole recalled. “And I had, so they called me and I joined that team.” The team convinced the judge hearing the case to give the government a choice: share its evidence with the detainees’ lawyers, or let the men go. It let them go. (The case dragged on for two decades, until the George W. Bush administration gave up trying to deport them.)

<b>People’s court:</b> The early legal victories against Trump's immigration order took place against a backdrop of popular protests, like this one at John F. Kennedy Airport.

People’s court: The early legal victories against Trump’s immigration order took place against a backdrop of popular protests, like this one at John F. Kennedy Airport.

That led to more immigration and national security work, which made Cole unusually well prepared to take on Bush’s war on terror policies. “Because I did that case, I started getting contacted by various other Arab and Muslim immigrants who were getting deported or detained on the basis of secret evidence,” Cole said. “And that was all before 9/11.”

The cases that solidified Cole’s reputation as a top-flight civil liberties attorney were about political speech. The heated debate throughout the 1990s about a constitutional amendment to ban flag burning sprang from a pair of infamous Supreme Court cases that Cole litigated. In 1989, he and William Kunstler, one of the CCR’s founders and a celebrity of the legal left, persuaded the Supreme Court to overturn a Texas law criminalizing burning the American flag. That opinion, which held that flag burning was self-expression protected by the First Amendment, prompted a massive backlash, and Congress responded immediately by passing a ban of its own. So in 1990, Cole and Kunstler persuaded the justices to strike down that law, too. In each case, Kunstler did the oral arguments, but Cole developed the legal theory and wrote the briefs. A lawyer from the solicitor general’s office, which had defended the law, later told a reporter at Legal Times that Cole’s was the best opposing brief he had ever read.

Shortly after the flag-burning victories, Cole left the CCR to teach at Georgetown. He wanted to pursue academic writing, teaching, and journalism while continuing to work on cases on the side. (He lives in Washington, D.C., but now spends the workweek at ACLU headquarters in New York City; his wife, Nina Pillard, is a judge on the D.C. Circuit Court of Appeals.)

Many law professors litigate some cases, and many lawyers teach law classes. But Cole belongs to a smaller group of top-tier litigators who are also serious eggheads. His most interesting scholarship approaches the law not as a system of rules, and not as policymaking by judges, but as both—a process by which abstract legal rules are shaped by cultural currents and the unconscious needs of the judges who craft them. One of his first articles, published in 1986 in the Yale Law Journal, applies the literary critic Harold Bloom’s theory of poetic interpretation to the question of what makes Supreme Court justices “great.” Cole’s insight is that while following precedent is a foundational principle of judging, to be remembered as a great judge requires breaking from precedent—just as being remembered as a great poet requires first mastering, then  breaking from, poetic tradition.

In Engines of Liberty, Cole analyzes the meticulous, decades-long efforts to legalize same-sex marriage and persuade the Supreme Court to formally recognize an individual’s right to bear arms. But it’s the third section, on the fight against Bush’s war on terror policies, that’s most relevant to his job now. It’s easy to forget how brazenly the Bush administration claimed authority to act without legal constraints, because Bush left office cowed by both public opinion and the Supreme Court. But in the aftermath of 9/11, the administration basically declared itself above the law when it came to national security. It established a military tribunal to try alleged terrorists in which, Cole writes, “the executive branch would be judge, jury, and executioner,” with no room for judicial review. And it insisted that it could detain so-called “enemy combatants” at Guantánamo indefinitely, without even a hearing to determine whether they are subject to detention as prisoners of war. The law appeared to be on Bush’s side: the Supreme Court had ruled in 1950 that foreign prisoners of war held overseas had no right to challenge their detention in American courts. Former CCR president Michael Ratner, Cole’s friend and mentor, who died last year, told Cole that the case he brought challenging Bush’s detention policies seemed “completely hopeless.”

The ongoing fight over the immigration ban is a preview for what any successful resistance to Trump will have to look like: swift, coordinated action in the courts combined with extensive public mobilization. No one is more sensitive to the interplay between these two forces than David Cole.

Yet two surprising things happened. First, the Supreme Court—with a conservative majority—ruled against the Bush administration four times in national security cases, including Ratner’s, between 2004 and 2008, rejecting its arguments that detainees could be held without a hearing and affirming Guantánamo prisoners’ right to judicial review. Second, the administration rolled back some of its policies even without any court saying it had to. By the time Bush left office, he had suspended the CIA’s “enhanced interrogation” program, closed its secret prisons, stopped sending detainees abroad to be tortured, released more than 500 of the 779 Guantánamo prisoners, and agreed to judicial oversight for warrantless wiretapping.

In Cole’s account, this was the product of a combination of strategies. The Supreme Court victories, he argues, were possible because human rights lawyers successfully framed the cases as a clash between Bush and the rule of law itself—not just in their legal filings, but in reports and speeches designed to marshal the opinion of the legal profession as a whole. They enlisted respected national security figures, like retired generals, to speak out against torture, which made it harder for the administration to justify itself to the public. They also waged a deliberate campaign to stir up international opinion against Bush’s policies, particularly in the United Kingdom, which had several citizens detained at Guantánamo. Cole interviewed former Bush administration officials, who told him that “foreign pressure had a significant impact on the curtailment of its counterterrorism measures,” because the U.S. depended on international cooperation to pursue its national security agenda.

Transparency was also crucial. “Human rights groups could not challenge what they could not see,” Cole writes. In 2003, two new ACLU staffers, Jameel Jaffer and Amrit Singh, began a Freedom of Information Act campaign that, over the next decade, would reveal nearly 6,000 documents detailing the administration’s torture program. Getting that information out may have made the Supreme Court less willing to defer to the administration’s promises that it was obeying the law.

Cole isn’t saying that Supreme Court justices turn on CNN, learn that people are protesting a certain policy, and so decide to rule against it. If courts always obeyed the majority will, constitutional rights would be toast. The influence of public opinion is more subtle. The 1944 case Korematsu v. United States, in which the Supreme Court upheld the legality of Japanese internment during World War II, has never been formally overturned. But decades of advocacy by Japanese American groups led to widespread recognition that the decision, like internment itself, was a national disgrace. Congress formally apologized for Japanese internment in 1988. By the time Fred Korematsu filed an amicus brief in the Supreme Court Guantánamo cases, the justices couldn’t help but be aware of the risk of again being on the wrong side of history. “To accept Bush’s position that he had unchecked authority to detain without judicial oversight would have looked dangerously like the excessive deference employed in Korematsu,” Cole writes.

The point is that the act of judging inevitably involves weighing abstract values that can’t be measured and put into effect without a sense of common knowledge and community beliefs. Judge James Robart, the federal district judge in Seattle who blocked the immigration ban nationwide, admitted as much in his written order. “Although the question is narrow,” he wrote, “the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents.”

In some ways, there is more reason to expect the judiciary to check the executive branch now than in the early Bush years. In the terrified aftermath of 9/11, there was little public outcry at first on behalf of detained terrorist suspects, in sharp contrast with the immediate and overwhelming popular protests against Trump’s immigration ban. Bush had some goodwill stored up after campaigning as a moderate conservative and ably performing the role of strong-willed leader after the attacks. Trump, on the other hand, is virtually guaranteed to face a regular wave of skepticism unrivaled in modern presidential history. As Cole noted in the New York Review of Books, the judicial rulings against Trump’s immigration ban are part of a broader backlash from all corners of civil society. More than a hundred tech companies, including Google, Apple, and Facebook, supported the case filed in Seattle, as did a bipartisan group of national security officials. Cole marveled that General Michael Hayden, who ran the CIA and the NSA under Bush, tweeted, “Imagine that. ACLU and I in the same corner.”

“Ordinarily, when the government targets foreign nationals in the name of national security, you don’t see a widespread public reaction from Americans,” Cole said in early February. “We’re in a different moment, where people are so concerned about the threat that Trump poses to them that they are making alliances with those whose interests they don’t ordinarily share.”

Cole’s observation that human rights lawyers triumphed in court when they could cast Bush’s policies in terms of “the rule of law v. the government” bodes ill for Trump, who has already made a trademark (not literally, but give him time) of personally attacking judges who rule against him. After Robart blocked the immigration ban nationwide, Trump took to Twitter to blast “this so-called judge.” In its appeal, the Justice Department made the Orwellian argument that judicial oversight of executive orders violated the separation of powers.

That didn’t go over well. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” wrote the Ninth Circuit Court of Appeals panel that unanimously upheld Robart’s order. The opinion cited two of the national security Supreme Court rulings against Bush to support the proposition that the president isn’t above the law.

Cole’s optimism about the ability of lawyers and the public to partner to keep constitutional rights safe from a Trump presidency is infectious. But is it justified?

The Supreme Court victories against Bush were extremely modest. As Cole acknowledges in Engines of Liberty, they simply required giving detainees some legal due process rather than none. Cole himself was on the losing end of several lawsuits against the government. In one that particularly rankles, he represented Maher Arar, a Canadian citizen who was seized at JFK, sent to Syria to be tortured for ten months on the U.S.’s behalf, and never charged with a crime. A federal court ruled that letting him sue the government would interfere too much with national security.

Trump probably won’t bungle everything as badly as he did the immigration order. If the administration had simply provided some facts justifying its national security judgment, it might not have been blocked. Even if, on appeal, the Supreme Court were to agree with Cole’s theory about the order’s unconstitutionality, the lesson would be that Trump would have gotten away with it if only he hadn’t spoken so loosely. (As this article went to press, the administration was preparing to issue a revised, ostensibly more legally sound travel ban.)

Most urgently, we still don’t know what will happen after the next terrorist attack on U.S. soil—how opportunistically the administration will use it to crack down on the rights of immigrants, Muslims, and political opponents. Even here, though, Cole is cautiously optimistic. “To the extent Trump tries to make radical changes, I think he’s much less likely to succeed,” he said. The same slow processes that made the fight against Bush-era policies drag on for years, he argued, will make it hard for Trump to try to return to those policies. Indeed, shortly after inauguration, career national security officials rejected a draft executive order that would have revived the torture program. “I could be wrong,” Cole said, “but I think we do tend to learn from our mistakes.”

The question is to what extent lessons of the past apply to a Trump presidency. The Bush administration infamously relied on the “unitary executive” theory to argue that it could set aside laws that would limit the president’s power over national security. But that was still a theory of constitutional authority, crafted by lawyers operating within the norms of legal discourse. So far, Trump and his inner circle don’t appear to see the need to justify themselves in those terms. Their theory seems to be: “We won. Get over it.”

Even if the ACLU and others can marshal public and international opinion against Trump, will it matter? Trump acts like a man at once desperate for approval yet, paradoxically, unwilling to change his behavior to earn it. Critics are to be defeated, not listened to. Trump may really believe that all opposition is a concoction of the biased media—that, as he tweeted after surveys showed that most Americans disapproved of the Muslim ban, “[a]ny negative polls are fake news, just like the CNN, ABC, NBC polls in the election.” It’s hard to predict whether even massive resistance will constrain his use of executive authority.

“In the end, I’m optimistic that our institutions are stronger than the will of a populist demagogue, even if he doesn’t back off,” Cole said.

The Constitution both empowers and limits government. The central idea of constitutional democracy, the principle the ACLU represents, is that there are some things elected officials may not do. But Trump is in charge now, and he embodies the opposite idea. This is most obvious in his refusal to extricate himself from his businesses, barely hiding his intention to use the presidency to enrich himself and his family. Enabled by a pliant Congress, Trump thus poses a high-stakes test of Cole’s theory and of his capacity as an advocate.

Cole begins Engines of Liberty with a quote from the great jurist Learned Hand: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” The first part is true, but the second is not. Even liberty-loving men and women need a legal system to preserve their rights, and they need groups like the ACLU to fight for those rights. Cole and the ACLU have to do two things: harness the energy of those Americans concerned about the rule of law, and persuade those who aren’t concerned that they should be. Without that, all the lawyering in the world won’t matter.

Gilad Edelman

Gilad Edelman is an editor of the Washington Monthly.