Friday Round Up! 5/30/25

There's a big tell in everything the Trump administration does that shows it's all a pretext.

One of the things I’ve been thinking about over the last few weeks as the Trump administration’s harassment of Harvard has escalated is that this is all happening back-asswards. I will explain why in a second, but it’s an extension of the pattern that is playing out in other contexts as well, and so far, no one has really seemed to notice or unpack it.

I’m talking about the lack of any meaningful fact-finding behind…well, anything the administration is doing right now. What we have seen is a bunch of executive orders and internal policy decisions covering everything from immigration to tariffs to law firms to universities, all based on various conclusions that have just been pulled out of thin air. Random people are accused of being terrorists. Law firms are accused of engaging in racial discrimination and posing national security threats. Universities are accused of being hotbeds of antisemitism and terrorist activity. Swift penalties and punishments immediately follow these accusations.

Look, maybe all of these allegations are true. Maybe they aren’t. But there’s this lovely thing we have in a democracy to figure that out — they are called investigations. And an investigation is what leads to facts that determine if remedial measures need to be taken or punishments imposed. Usually, these investigations are undertaken by the Justice Department. But depending on the entity and the alleged violation, it could be another agency that has enforcement authority. The key is that an investigation is, in a country that follows the rule of law, a critical step in between accusation and punishment.

I’ll give an example using Yale University (which is all public record). Back in 2010, some fraternity pledges chanted sexually obscene phrases during a Take Back the Night March, an annual vigil for survivors of sexual assault. Following that incident, 16 Yale students and alumni filed complaints with the Department of Education alleging that the university was in violation of Title IX, which prohibits discrimination on the basis of sex in educational institutions. The complainants claimed that Yale was not in compliance with Title IX because it did not have adequate procedures in place to report and address grievances regarding sexual harassment and assault, contributing to a hostile environment on campus. The Department of Education then conducted a 15-month investigation, which resulted in a voluntary agreement in which the University agreed to overhaul its grievance and disciplinary procedures and create more transparency through periodic reporting of reports of sexual assaults on campus to both the campus community and the Office of Civil Rights at the Department of Education. (There were no official findings of noncompliance and the University did not admit wrongdoing.) Just for context, Yale was on the front end of what ended up being 55 universities that were subsequently investigated by the Department of Education for similar Title IX issues, many of which looked to Yale’s new procedures as a model.

Here is the point: There were credible allegations that Yale may have been out of compliance with the law. In fact, there was at least one public incident (the fraternity one) which even corroborated that allegation. Nevertheless, the Department of Education undertook a formal investigation that lasted over a year — it didn’t immediately yank Yale’s federal funds, nor did President Obama issue a ranty executive order naming and shaming the University or try to strike a “deal” to exact concessions from Yale that had nothing to do with the Title IX violations themselves. Rather, the goal was to ensure compliance with Title IX, so the Department of Education worked to reach an agreement with Yale that was tailored to address any compliance gaps that might have existed.

That’s how this is all supposed to work. It may very well be the case that there is antisemitism on Harvard’s campus that needs to be addressed. However, if that were really the issue the administration wanted to address, what we would see is an investigation by the Civil Rights Division of the Justice Department, or by the Office of Civil Rights in the Department of Education.

Oh wait…I forgot. Both of those have entities been partially or completely dismantled.

In any case, without any kind of actual investigation, we don’t know the scale or pervasiveness of antisemitism on Harvard’s campus, which means that the federal government can’t address it using tailored remedies as they did in the Title IX context at Yale and elsewhere. Harvard also has no opportunity to present its case for what it is doing to address this problem. Either way, I think it’s safe to say that pulling medical research funding will have zero impact on any civil rights violations that exist. Nor will preventing international students from enrolling there — which by the way, will punish students from Israel and Jewish students who are nationals of other countries! The draconian “remedy” has nothing to do with the purported “problem.”

This of course brings us back to the basic problem we are seeing across the board. In the immigration context, the habeas due process protections that deportees are entitled to exist precisely to determine whether the government’s conclusions — that they are terrorists, or are members of Tren de Aragua or MS-13 — are, in fact, true. With the law firms, national security concerns should be investigated by the FBI before yanking security clearances, and alleged racial discrimination by the Civil Rights Division of the Justice Department. (Wrongdoing in the way they handle their cases, as also alleged in Trump’s EOs, are within the purview of the judiciary, not the executive, to address through sanctions and other measures.) There also should be some sort of factual basis to implement across-the-board tariffs — but as I noted in a previous Round Up, it looks like Trump chose to use the International Emergency Economic Powers Act (IEEPA) precisely because it was the one authority where he didn’t have to do that. (And it is likely that that choice is coming back to bite him in the butt in court.)

Why is the Trump administration so afraid of investigations and fact-finding? One reason is that Trump is impatient and likes to use immediate leverage in order to strike “deals” he can claim as victories. It is an intellectually limited and facile approach to achieving goals, but it’s the only one he knows. But those around him know better — and they also know that actual investigations are unlike to uncover the “facts” that they are claiming in press conferences and Fox News. Fact-finding breaks their reality bubble: Just ask FBI Director Kash Patel and Deputy Director Dan Bongino, who went looking for evidence of Deep State conspiracies at the FBI but have had to come clean on Fox on “what exists and what doesn’t” — much to MAGA’s fury.

All of this puts us in the upside-down world of the Queen of Hearts in Alice in Wonderland, who exclaimed after pronouncing that Alice should lose her head, “SENTENCE FIRST, VERDICT AFTERWARDS!” Except that it’s the Mad Hatter, not the Queen of Hearts, running the show.

This week Renato and I discussed two amazing smackdowns from the courts, one on the law firm front and the other in its attempt to spirit more migrants out of the country, this time to South Sudan:

Upcoming events:

• TENTATIVE DATE AND TIME: Wednesday, June 18, 5 p.m. EDT, Freedom Academy Book Club with Professor Zephyr Teachout, author of Corruption in America: From Benjamin Franklin’s Snuff Box to Citizen’s United. Join me and Professor Teachout as we discuss how right she was, and what we can do about it now. The Freedom Academy Book Club discussions are open to all paid subscribers and recordings of the talks are posted after in case you can’t make it live!

• Wine & Fries Happy Hour with Katie Phang, June 29, at 8 p.m. Awwwww yeah. My friend Katie, former host of MSNBC’s The Katie Phang Show and now fellow Contrarian, will be joining us. Katie is irreverent, hilarious, and sooo smart…I can’t wait! A link for this will be sent to Wine & Fries (founding) members three hours before the event, and will not be recorded.

WHAT CAN YOU DO?

I am getting a lot of questions from friends and colleagues asking what they can do in this urgent political moment. I have three potential actions steps you can take now:

1. Pro bono lawyers are on the front lines to stop Trump and Musk’s breakdown, takedown, and shakedown of the federal government. You can contribute to this effort on the donation page of State Democracy Defenders Action

2. Watch a commencement speech (just not this year’s one from West Point). It’s that time of year when great speakers come to campuses across the country, offering insight and inspiration that is often timeless. There are probably hundreds available to watch on YouTube, but this baccalaureate speech by Federal Reserve Chairman Jerome Powell is worth a watch:

3. Self care tip of the week: Take a walk. I’ve been going on walks as part of my recovery from my medical procedure a few weeks ago (not allowed to go back to the gym yet), and I realized I had forgotten how nice a stroll through the neighborhood is, particularly as the weather gets warmer. I took a lot of walks in the spring and summer of the COVID pandemic and found that it was a great reminder that despite the tumult of the world as seen through our screens, whether on the news or our phones, immediate reality can be calm, peaceful, and grounding. Plus it’s a great time to way to make human contact, even if it’s just to make eye contact and smile and wave at a passing walker or driver.

‘Rise like Lions after slumber
In unvanquishable number—
Shake your chains to earth like dew
Which in sleep had fallen on you—
Ye are many—they are few.’

— The Masque of Anarchy by Percy Bysshe Shelley, stanza XXXVIII