Je suis Khalil

Every American should worry about Mahmoud Khalil, the recent Columbia University graduate who was detained last week by US immigration authorities, though “abducted” would be a better description. It is no exaggeration to say Khalil’s fate is a test of how easily President Donald Trump can slide into lawlessness. To recap, Trump wants to revoke Khalil’s green card and deport him for demonstrating against Israel during the Columbia University protests.

In spite of apparently having broken no law, Khalil was arrested on Saturday when he was at home with his eight-months-pregnant American wife in New York. From there he was spirited away to a facility in Louisiana (a state with many more pro-Trump judges). The pretext was that he spoke at events where pro-Hamas literature was distributed, though there appears to be no evidence that he has any ties to Hamas.

Should Trump get his way, his licence to punish any speech that he deems pro-terrorist or against the US national interest would make him judge and jury on first amendment rights. It would put every US citizen — not just permanent residents — at risk. To take one example: Trump said that attacks on Tesla showrooms qualify as domestic terrorism. But you can fill in any number of blanks. Trump depicts his adversaries as the enemy within. Isn’t criticising America’s president anti-national?

My guess is that Khalil’s case will make it to the Supreme Court. There, one of three scenarios could happen:

1. The court rejects Trump’s attempts to bring back the Hanoverian bill of attainder and Trump reluctantly complies.

2. The court folds and essentially declares Trump to be king.

3. The court upholds the law, which gives due process to citizens and permanent residents alike, but Trump ignores the ruling.

Both 2 and 3 would end the rule of law in America, though 3 would be a more dramatic way of doing it. 1 would be great, though do not bet on it.  

Students of political science could not ask for a better live experiment in whether liberal democracy can survive. The difference boils down to the courage of individual Americans. Here are two recent contrasting tales of character. Read this letter by William Treanor, dean of Georgetown’s law school, in response to the demand from DC’s acting attorney, Ed Martin, that Treanor should end the school’s DEI policies. Treanor makes it plain that Martin’s demand is blatantly illegal.

“Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution,” Treanor wrote.

It is worth noting that Martin has declared himself the president’s personal lawyer (a first for a US attorney) and threatened legal action against “anyone who impedes” the work of Elon Musk’s so-called department of government efficiency.

If everyone responds like Treanor, we can sleep a little easier. The same applies to Beryl Howell, the US district judge who this week temporarily blocked parts of Trump’s executive order targeting the law firm Perkins Coie. The firm’s sin was to have represented Hillary Clinton in the 2016 election. Trump has also suspended security clearances from lawyers at another law firm, Covington & Burling, for providing pro bono advice to Jack Smith, the former special counsel who investigated Trump. In both cases, clients have fled the law firms for fear that any association will put them in Trump’s sights. Trump, in other words, is harming law firms’ business for doing their jobs. “It sends chills down my spine,” said Howell when she issued the temporary restraining order. She also expressed “enormous respect” for Williams & Connolly, the law firm representing Perkins Coie.

Alas, the courage of Treanor and Howell is more than matched by the feebleness of others, including the companies that terminated their contracts with the law firms at the first whiff of danger. Among those folding too easily is Katrina Armstrong, interim president of Columbia University, who responded with this letter after Trump cancelled $400mn of federal research funding for Columbia. The president’s claim was that the university was failing to protect its Jewish students. Do not believe that pretext for a second. His larger goal is to punish US universities — another 59 of which are being investigated on similar grounds. Trump’s war on higher education is just getting under way.

Armstrong acknowledged Trump’s “legitimate concerns” in her decidedly uncourageous response. Nor has she spoken out in defence of Khalil, a Columbia graduate. For profiles in cowardice, however, consider the Anti-Defamation League, a once proud defender of US civil liberties that is now a reliable backer of Trump. “We appreciate the Trump Administration’s broad, bold set of efforts to counter campus antisemitism — and this action further illustrates that resolve by holding alleged perpetrators responsible for their actions,” said the ADL in a statement after Khalil’s arrest.

This was the same group that appealed for “grace” after Elon Musk had given two unmistakable Sieg Heil salutes last month. “It seems that @elonmusk made an awkward gesture in a moment of enthusiasm, not a Nazi salute,” ADL said. Meanwhile, here is Trump on protesters. “Agitators will be imprisoned/or permanently sent back to the country from which they came,” he posted. “American students will be permanently expelled or, depending on the crime, arrested.” And here is Amy Spitalnick, head of the Jewish Council for Public Affairs: “Any Jew who thinks this is going to start and stop with a few Palestinian activists is fooling themselves,” she told the New York Times.

I am turning this week to my wonderful colleague Stefania Palma, our US legal and enforcement correspondent. Stefania, am I right to say that the Khalil case is seminal? How quickly would you expect it to reach the Supreme Court?  

Recommended reading

• My column this week looks at Musk’s plummeting fortunes. “When Musk said he loved Trump “as much as a straight man can love another”, the emetic effect was widespread,” I wrote. “Trump is one of the few people left who likes having Musk around. Yet having given him more power than any private individual in US history, Trump is watching his benefactor turn into an albatross.”

• While we’re on Musk, do read Don Moynihan’s Substack, Can we still govern?, and his latest posting on how Trump and Musk are building a new spoils system. Free postings from scholars such as Moynihan are an invaluable public service.

• Do also read my former colleague Gerard Baker on “Capitol Hill’s Republican sycophant caucus”. It’s fair to say that I rarely agree with Gerry nowadays. But his scathingness about the cowardice of Lindsey Graham and other leading Republican legislators — and the frequency with which the strongly Murdochian WSJ is now attacking Trump — is a pleasant surprise. 

• Finally, Meta is trying to suppress Sarah Wynn-Williams’ book, Careless People, because it exposes what an amoral man child Mark Zuckerberg is and how Facebook “doesn’t give a fuck” about people. Sarah, who is a friend, knows what she’s talking about. She worked at Meta for years and was head of global public policy. Buy her book! Here’s the NYT review.

Stefania Palma responds

Mahmoud Khalil’s case is the latest legal controversy ushered in by the Trump administration.

In just a few weeks, the government has attacked perceived opponents across the country’s legal system — prosecutors, judges, law firms, US attorneys — in ways that critics fear undermine America’s separation of powers and the rule of law.

With Congress failing to push back and the civil service being pummeled by budget cuts, the courts have in effect become the final backstop against Trump’s contentious measures.

It will be no different for Khalil’s case, which may very well reach the US Supreme Court, as you point out Ed, in the form of a free-speech case. 

There is a long history of justices across the ideological spectrum protecting free speech. But the top court, split 6-3 between conservatives and liberals, has in recent years been heavily accused of partisanship. Only last year it handed Donald Trump, who was charged in four separate criminal cases, a landmark win that shields him from criminal prosecution for official acts taken while in the White House.

More broadly, it can be puzzling to see the same constitutional right at once be fiercely protected and potentially challenged. 

Several Republican lawmakers have commended the administration’s attempt to deport Khalil. Critics have instead raised serious fears of a clampdown on free speech — the same notion that is often at the heart of hot-button, conservative causes. In antitrust, for instance, populist Republicans are keen to crack down on online platforms they claim have censored conservative voices.

Perhaps the greatest dissonance, however, comes from Trump himself, who during his congressional address earlier this month said he had “stopped all government censorship and brought back free speech in America. It’s back”.

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