The man at the heart of the legal resistance to the Trump agenda works in an unfinished office a block away from the White House.
David Cole, the new national legal director at the American Civil Liberties Union, hasn’t had time to hang pictures on the wall or remember to bring a mug to hold his morning tea.
“I get to wake up every morning and I get paid to think about how to respond in ways that will preserve our basic rights and liberties,” Cole said. “That’s a tremendous privilege.”
Weeks into the Trump administration, the ACLU is positioning itself as the chief enforcer of the government’s system of checks and balances. And near the center of that effort is Cole, who is on a four-year leave from his teaching job at Georgetown Law.
When he accepted the ACLU job in the summer of 2016, Cole says, he had a very different idea about what was to come.
“The way Anthony Romero, the executive director, sold me on it was, ‘Look you’re going to have a liberal Supreme Court for the first time in your career as a constitutional lawyer,’ ” Cole recalled. “And that sounded like a great opportunity. I didn’t put in a little condition at the bottom of the contract saying what happens if somebody else gets elected because nobody thought that was a possibility.”
In some ways, Cole has spent his life preparing for this job at this moment.
It so happens that one of Cole’s big breaks came nearly 30 years ago, writing legal briefs in a case where the Supreme Court, led by conservative Justice Antonin Scalia, upheld flag burning as an expression of the right to free speech.
That issue took on new relevance after the election, when then-President-elect Donald Trump tweeted that people who burn the flag should be prosecuted and have their citizenship revoked. Republican leaders in Congress denounced the idea.
So far, Cole said, the ACLU legal team has been keeping odd hours to try to keep track of the new administration. When one week into the Trump presidency — and two weeks into Cole’s new job — Trump signed a travel ban, a team of lawyers from the ACLU stayed up all night and took the administration to court.
“Never before in the history of this country have we used the immigration law to favor one religion over another, and the bedrock principle of the Establishment Clause is that the government cannot in any area of its authority favor one religion over another religion,” Cole said.
The courts mostly agreed with the ACLU, putting Trump’s original travel ban on hold. The White House has now revoked the original order and issued a new one that narrows its reach.
But the ACLU says it is going to keep fighting, based on the argument that religious discrimination against Muslims permeates the whole plan.
To Jay Sekulow, a lawyer at the American Center for Law and Justice, which bills itself as a counterweight to the ACLU, that’s a bad approach.
“I think the ACLU is taking an extreme position,” Sekulow said. “They have the right to do it. They have the right to advocate their position. But I think what they’ve done in their proceedings is put the country at risk.”
Sekulow said he is convinced there is a valid national security purpose for the travel limits. But, he said, it makes sense for the ACLU to take its opponents to court, just as he did when he challenged President Barack Obama’s actions on immigration.
As for Cole, he has devoted his entire adult life to the Constitution and the courts. But he is more enthusiastic about street marches and rallies and those little blue ribbons that actors wore at the Academy Awards to honor the ACLU.
In fact, Cole said in his new book, Engines of Liberty, it is the actions by people that power change.
“If you think of constitutional evolution as a sentence, the Supreme Court’s decision is the period at the end of the sentence but the words in the sentence are the work of citizen activists joined together in organizations, what we call civil society, that are committed to a particular vision,” he said.
Cole said he and the hundreds of others on the ACLU legal team are prepared to test that proposition and to help organize those activists.
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