Can the ACLU stop Trump? New legal director David Cole thinks he knows how.

Author:Edelman, Gilad
Position:American Civil Liberties Union

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 continue reading