Cole To Politico: "Trump can be stopped. Resistance to Trump, will outperform expectations"

.................Politico Magazine spoke with Cole in his yet-to-be-furnished office after one week on the job, and then again this week. The constitutional litigator has a confident prognosis for the left: Trump can be stopped. Yes, this president may wield awesome power, but resistance to Trump, Cole says, will outperform expectations, with pushback emanating from lower courts and civil society. How? Cole points to the George W. Bush administration, a period that Cole argues saw a raft of court decisions (along with some intrepid journalism and civic action) that eventually froze the administration’s agenda in its tracks. This interview has been condensed and edited for clarity.

Politico Magazine: The administration plans soon to reissue the immigration order, possibly this week. What will it look like? Do you expect that it may also be vulnerable to a legal challenge?

Cole: We’re ready to challenge it as soon as it appears. Based on reports, it appears that it will continue to be essentially a Muslim ban. They’re talking about exempting legal permanent residents—possibly exempting people who have visas already granted. But the thrust of it will continue to be a ban targeted at Muslim countries. And given his many, many statements that he intends to target Muslims through the immigration power, there’s going to be a very strong Establishment Clause challenge to the order. It will essentially be Muslim ban 2.0.

Politico: The 9th Circuit’s ruling keeping the executive order on hold has received some pushback from legal scholars. If the case reached the Supreme Court, would it be upheld?

Cole: Yes. This is a blatantly discriminatory executive order targeted at Muslims, designed to disfavor one religion and favor another, Christianity. Under bedrock Establishment Clause principles, that is unconstitutional. Those who raise questions point to political branches and their broad authority when it comes to regulating immigration and argue, therefore, that you’re always in an uphill battle when challenging the political branches’ decisions. But what they don’t recognize or acknowledge is that never before in the history of this nation has the immigration power been deployed to target one religion for disfavor and another for favor. And there’s just no justification for deploying the immigration power in a religiously discriminatory way.

Politico: Reports suggest that the Department of Homeland Security is preparing for an uptick in deportations across the country—exactly how much is still a matter of some dispute. Will the ACLU be involved in some way?

Cole: Absolutely. We’ve ramped up our immigration project more than any other aspect of the organization. And so we are developing the facts to challenge some of the tactics use by ICE in rounding up foreign nationals. We are planning challenges to the expansion of what’s called expedited removal, which is a kind of summary proceeding that is currently used for people at the border—the rumor is that they intend to expand that, raising serious due process concerns. We’ve also been advising sanctuary cities on their rights to decline to participate in this crackdown.

Politico: Last November, just days after the election, you wrote an essayarguing that Trump’s worst impulses can, and will, be thwarted. Those were dark days for many people in your field, and yet your confidence seemed almost like a reflex. What makes you so confident?

Cole: The reason comes from my book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. Here’s the question: What caused President Bush to curtail virtually all of his most aggressive counterterrorism measures by the time he left office?

In the immediate aftermath of 9/11, Bush authorized torture; authorized disappearances into secret prisons; authorized extraordinary rendition; authorized warrantless wiretapping; detained so-called enemy combatants at Guantánamo; and asserted he had uncheckable authority to keep them in secret. And that’s what he did.

By the time he left office, he had emptied out the CIA’s secret prisons. There were no longer any extraordinary renditions to countries like Syria or Morocco. Torture had stopped. The CIA’s interrogation program had stopped. The warrantless wiretapping program was now under judicial supervision. And over 500 people had been released from Guantánamo by Bush—of the peak 775 people there, Bush released the majority of them.

If you had told me that on 9/11, Bush and Cheney were not going to be able to do whatever they think is necessary to respond to this crisis, people would have said: Who’s going to stop him? He’s got a Supreme Court that put him in office. He’s got a totally supportive Republican Congress, and historically Congress in times of war bow down to the president. He had vast support from the American people, with popularity ratings around 80 percent. There was no competing superpower. Al Qaeda was hated by everybody except the Taliban. Who was going to stop him? Yet he was forced to curtail each of these measures.

And how did that happen? A large part is owed to the Center for Constitutional Rights, which filed major cases in the Supreme Court on behalf of enemy combatants. But it was also about engaging public opinion, so that the frame when the case got to the court was not “terrorists vs. our security,” but instead framed as “the rule of law versus lawlessness.” CCR did a tremendous amount of international advocacy.

Here’s one example. One of the biggest early campaigns was in England, because there were nine British detainees [at Guantánamo]. [Prime Minister Tony] Blair’s position was initially supportive of what President Bush was doing—essentially, Our people are being treated fine, and the U.S. has every right to hold them. But over time, CCR generated sufficient concern in the media and the populace that Blair was forced to reverse himself and demand their return. So Bush releases three of the detainees. What happens next? The moment they got back to Britain in 2004, the detainees told stories of how they were tortured. The stories were reported widely.

Back to the Supreme Court. The next month, the Court hears a case called Rasul v. Bush. The case is about habeas corpus—it has nothing to do with torture. But Justice [Ruth Bader] Ginsburg asks about torture. She asks the [government’s attorney] what their position is if the detainees are being tortured. Where did that come from? It came from advocacy, those stories being told and reported from across the pond. [The government lawyer] responds that they’re not being tortured. Then, that very night, CBS’ “60 Minutes” released the pictures from Abu Ghraib—pictures that depicted conduct almost identical to the descriptions of the British detainees at Guantánamo. Instantly, it changed the entire dynamic: Can we really trust the president?

Politico: What was going on inside the administration at this time?

Cole: When I interviewed a number of Bush people for the book, they each said that the pressure they were getting from Europe on renditions, on Guantánamo, on secret prisons, was powerful. It made it difficult to do almost anything with the Europeans. On national security, for example, those governments were getting pressure from their people, who were critical of how we were treating non-Americans. And that helped raise up the voices of those within the administration, who felt this was going too far.

But that’s just one example. Soon, the organization Human Rights First helped organize former generals to speak out against torture. They were hugely supportive and helpful to [Arizona Senator John] McCain in getting the so-called McCain Amendment passed—a bipartisan prohibition on the use of cruel, inhuman and degrading tactics, regardless of citizenship—the first time Congress had ever pushed back against the president. The Bush people fought like hell to stop it. Cheney was on the Hill personally pushing senators not to pass it. The McCain Amendment passed the senate 90-9. (Interestingly, Jeff Sessions voted against it.)

Here’s the point, and it’s relevant to Trump: It was civil society organizations engaging in litigation, but mostly through advocacy in other forums, that brought pressure to bear on the Bush administration, so that by the time the Bush administration left office, it had really ratcheted back most egregious measures. As far back as ACLU would have liked? No. But a lot further than anyone would have predicted, given the history of how courts and Congress and the American people have responded to presidents in times of crisis.

Politico: That story hinges on a key premise: That presidents respond to public pressure. But Trump isn’t like other presidents. What are the odds that he simply doesn’t listen—to European allies, to the public, to the courts?

Cole: The question is not whether Trump will respond, but how. The experience we had with the Bush administration illustrated that even where you have very strong convictions, people like Dick Cheney—who had zero interest in human rights, or the rule of law, or civil liberties—that if sufficient pressure was brought to bear, they would be compelled to curtail many of their own initiatives. The whole idea of checks and balances is that there may be people who, absent those checks, would overreach. In some sense, checks and balances were put in place to deal with people like Donald Trump.

So if Donald Trump attempts, for example, to ignore an order of the Supreme Court or to ignore some kind of action by Congress, I think our institutions are sufficiently strong that his administration will be delegitimized. The institutions will survive and Donald Trump won’t. And that certainly will be the case if in fact there is great popular support for the institutions and values that define us a nation. The more extreme Trump’s positions are, the more likely it is that other institutions will play a role in pushing back.

Politico: What other lawsuits are the ACLU pushing that we haven’t heard about?

Cole: On Thursday, we’re filing our brief in a transgender rights case. Soon, the Trump administration is likely to rescind a guidance which had been issued by the Department of Education saying that schools must allow transgender boys to use the boys room and girls to use the girls room. It was already probably the most important case of the term, and it will be even more if the Trump administration seeks to reverse the longstanding policy. [The Trump administration did, in fact, rescind the Obama administration’s guidance on transgender bathrooms on Wednesday.]

Also this week, we filed a supplement brief in a case pending in the Supreme Court about constitutional limits on immigration detention. We are already challenging anti-reproductive choice legislation that was enacted in the wake of Trump’s victory and emboldened by his promise to overturn Roe v. Wade. And we’re preparing to challenge an executive order that was leaked that would allow people who are acting on religious beliefs to avoid all sorts of legal obligations that apply to everyone else; [the order would exempt those] who believe marriage is only between a man and a woman; that sex should only take place within a marriage; and that life begins at conception.

We are expanding our voting rights work in the wake of President Trump’s false claims that there were millions of fraudulent voters, which will further embolden Republican legislators to enact restrictive voter ID laws that are designed to suppress the votes of African-Americans. We just filed a brief in the Supreme Court opposing review of a North Carolina case in which we prevailed in establishing that a Voter ID law passed by the state Legislature was intended to target African-Americans and deny them access to vote.

And in the national security arena, we are preparing for the potential designation of the Muslim Brotherhood, which is a broad-based movement that many different groups and entities around the world connect to. It could well affect Muslim civil society here in the United States in a dramatic way.

In virtually all the areas that we traditionally defend, from religious freedom to LGBT rights to reproductive choice to voting rights to immigrant rights, we are seeing new challenges, as a result of the Trump administration. And we’re responding just the way we promised: We’ll see him in court.

Politico: So business is good for the ACLU.

Cole: We are busy. I wouldn’t say business is good. Because the threats are so widespread and so serious. I don’t think we’ve seen a president that poses as grave a threat and as widespread a threat to basic civil rights and civil liberties in American history. That means that we have our work cut out for us.