Mahmoud Khalil, 30–year-old holder of a green card permitting him permanently to live and work in the United States, spouse of an American, lettered in his field after study at an Ivy League university, with nothing on his record to suggest criminal activity of any kind: Mahmoud Khalil is now under arrest and awaiting deportation at an Immigration and Customs Enforcement detention facility in Jena, a town of 4,100 in the Louisiana boondocks.
Mahmoud Khalil was arrested last Saturday evening at his apartment near Columbia University, where he recently earned a graduate degree. Mahmoud Khalil’s crime — sorry, no crime, let me try again — Mahmoud Khalil’s offense — no again — Mahmoud Khalil has simply exercised his free-speech rights while leading demonstrations, beginning in the spring of 2024, against Zionist Israel’s campaign of terror in Gaza. Mahmoud Khalil, to be noted, is Palestinian, born and was raised in a refugee camp in Syria. He is formally a citizen of Algeria.
For a time after his arrest, Mahmoud Khalil’s family was unable to contact him and did not know where he was. Now they know but cannot see him. Were this one of the Latin American dictatorships of the 1970s and 1980s—Pinochet in Chile, Videla and his junta of colonels in Argentina—we would say Mahmoud Khalil has been “disappeared.” At writing he has been prevented from consulting with his attorneys.
Here is what President Trump put out on Truth Social, his sludgy social media platform, just after Khalil was arrested:
This is the first arrest of many to come. We know there are more students at Columbia and other Universities across the Country who have engaged in pro-terrorist, anti–Semitic, anti–American activity, and the Trump Administration will not tolerate it.
And here is Michelle Goldberg, The New York Times’s poseur “leftist,” in an opinion column that appeared in Tuesday’s editions under the headline, “This Is the Greatest Threat to Free Speech Since the Red Scare”:
If someone legally in the United States can be grabbed from his home for engaging in
constitutionally protected political activity, we are in a drastically different country from the one we inhabited before Trump’s inauguration.
You have to say “Amen” to this. Goldberg immediately followed this observation with a quotation from an interview with Brian Hauss, an attorney at the American Civil Liberties Union:
This seems like one of the biggest threats, if not the biggest threats [sic] to First Amendment freedoms in 50 years. It’s a direct attempt to punish speech because of the viewpoint it espouses.
These two give the Khalil arrest an amplitude it warrants, although Goldberg ought to tell us which Red Scare she means — the first, in the 1920s, or the 1950s version, cultivated in the mulch of McCarthyist Cold War paranoia. The arrest and sequestration of Mahmoud Khalil exceeds Trump’s numerous excesses by many times. Every civil-liberties lawyer in New York and Washington ought to be on this case. If Trump actually puts Mahmoud Khalil on a plane to who knows where, to say nothing of the many more deportations he threatens, we are in deeper doo-doo than George H.W. ever imagined when he coined this phrase amid his political perils in the late 1980s. We witness in real time an extravagant exercise of censorship and the Executive Branch’s open abuse of law and the foundational institutions of justice charged with interpreting and enforcing it. I hope the Khalil affair proves a step too far for Trump and marks the beginning of this objectionable incompetent’s end.
Yes, standing against the Trump regime’s swift, Draconian action against Mahmoud Khalil is like shooting at the side of a barn. I am queasily reminded of the Reich’s idea of law-enforcement in the 1930s, or the Israelis’ in the West Bank as we speak. What’s right is right, what’s wrong, wrong: It is there before our eyes. There is no room for ambivalence here. The case is black and white.
And then the mind starts thinking about all the gray and advances into that familiar zone of ambivalence.
■
Last Friday, the day before Mahmoud Khalil’s arrest, another opinion piece in The New York Times caught my eye. The concern of Erwin Chemerinsky, a constitutional law scholar and dean of the law school at the University of California, Berkeley, was, and surely remains, the condition of America’s judicial system. Yet more now than when he wrote, this is a matter warranting all the attention we can give it. The headline atop his essay is, “The One Question That Really Matters: If Trump Defies the Courts, Then What?”
This is a good question. And it is magnitudes more salient now than it was last Friday, as the arrest of Khalil, along with Trump’s just-declared deportation program, has already gone before the courts. Whether Trump honors or ignores America’s judicial authorities in this and numerous other cases matters big time — no arguing this. The presence of even a fleck of doubt as to Trump’s acceptance of the judicial branch’s purview is a measure of just how heavily this question looms over the single most essential of all our governing institutions. There ought to be none. The Khalil case, given the apparent illegalities of Trump’s move, drops this truth upon us like a brick.
But just a minute, Dean Chemerinsky. How Trump respects or disrespects the law and America’s courts is not “the one question,” the only question that “really matters.” I vigorously object to these phrases. In what condition was our judiciary before Donald Trump took office not quite two months ago? How dare the law dean leave out this question. And how, by whose hand, did our judicial system come to this pre–Trump condition? This is another question that must not be left out. Right off the bat that makes three to Chemerinsky’s one.
And so to what Michelle Goldberg has to say about the Khalil case. Read again the above snippet from her column: “… we are in a drastically different country from the one we inhabited before Trump’s inauguration.” Oh? As different as all that, Ms. Goldberg? And then the ACLU attorney: Trump’s move on Khalil is the gravest attack on the First Amendment in half a century. Half a century? Nothing untoward occurred in between — during, let’s say, Trump’s first term and Joe Biden’s first and last?
We have here three cases, among countless others like them, of sheer sophistry. You get a lot of this from the liberal class these days, Trump Derangement Syndrome having roared back among us. President Trump is doing some very worrisome things — yes, certainly. And if it weren’t for Trump, everything would be copacetic, we are invited to think, we must must think, because nobody was doing anything worrisome before Trump came along.
You see this, a cynically dishonest glide over recent history, in all sorts of contexts. It is a standard resort among the liberals. Russia started the war in Ukraine, which began only in 2022: This a glow-in-the-dark example of what I mean. Chemerinsky, Goldberg, et al, and there are countless et als at this point, attempt the same damn thing, if more subtly, when they date the threat to the American judiciary to the doings of Donald Trump.
Dean Chemerinsky is a grand enough man to get column inches on The Times’s rigorously policed opinion page. Here is his lead paragraph:
It is not hyperbole to say that the future of American constitutional democracy now rests on a single question: Will President Trump and his administration defy court orders?
The future of American constitutional democracy: No, nothing hyperbolic in suggesting this is at issue, setting aside Chemerinsky’s histrionic reach for gravitas. Not two months in office, Trump once again displays a frightening lack of regard for law, the judicial process — altogether for the Constitution. Elon Musk, that crypto-fascist freak Trump allows to ball out department secretaries in cabinet meetings, only heightens one’s worry as to just where America is headed.
But neither is it hyperbolic to say that Chemerinsky is indulging in the insidious sleight-of-hand mentioned above — the omission of history, which (as Hannah Arendt reminded us on numerous occasions), always comes to a form of lying. Even law school deans can be ideologues more given to reflex than thought, it turns out. Even they can be prone to deflecting responsibility for things gone wrong so as to protect the monster known as the liberal elite from scrutiny (and at times to keep some of its prominent members out of the dock).
Democrats — and while Dean Chemerinsky’s record includes some creditable entries, he is unambiguously a mainstream Democrat — have been rolling the drums about Donald Trump as a threat to American democracy ever since it became clear they had failed to put him in prison by way of a wilted bouquet of flimsy lawsuits. The whiff of intellectual chicanery in this is very strong. It is artful dodgery, consisting of the truth but not the whole of it. I do not care for the term, but let’s go with it for brevity’s sake: The Democratic Party and its institutional allies have weaponized the Judicial Branch over the past, I would say, 10 years, and as long as people of purported authority pretend this problem began on Jan. 20, the urgently needed restoration job will go nowhere.
Americans deserve answers to the questions I posed above. And the first necessity here is for people in influential positions, Chemerinsky typical enough of them, to extract their politics from our public discourse on this matter and act responsibly on behalf of our raggedy republic rather than their ideological preferences.
Readers may detect I am considerably stirred by the corruption in the cause of party politics our courts and organs of law enforcement have suffered in recent years. This would be an astute conclusion. Let me explain why this is so. Two reasons.
One, the Democratic Party elite began subjecting the nation’s highest institutions of justice and law enforcement to rapacious abuse as soon as Donald Trump made clear, in 2015, he would run for president. In short order, the Democrats made common cause with the intelligence apparatus, the Justice Department itself, and the Federal Bureau of Investigation. (Let us leave out the pitiful self-degradations of mainstream media for now.)
The sprawl of the Russiagate farrago, the Mueller investigation, the CIA’s unlawful
operations on American soil, the open-and-shut complicity of senior FBI
officials on behalf of Hillary Clinton’s campaign: All this compromised
the impartiality of America’s judicial system — damage not easily
erased. Once Trump was elected, this diabolic cabal set about subverting
the Executive Branch to an extent that what transpired sometimes looked
like a bloodless coup. Among much else, Americans witnessed extensive
programs of censorship dressed up as “content moderation.” Defenders of
the First Amendment got marked down as—a new one on me, have to
say—“free speech absolutists.”
Then came the much-more-of-the-same Biden years. What had been a sabotage operation to take down a president became an operation to protect his flagrantly corrupt successor while, as mentioned above, instrumentalizing law to keep his predecessor-cum-challenger out of politics altogether. Before it was over the rot this time ran straight up to Merrick Garland, Biden’s attorney-general, and Christopher Wray, the FBI’s director. The censorship op, finally exposed in the Twitter Files and elsewhere, ran from the White House through the DoJ and the FBI to Silicon Valley’s executive suites.
I am not much for golden ages, and I do not posit that the system of American justice was ever in the way of spanking clean. Not my point. My point is that in refusing to acknowledge the messes Democrats and their allies made in the recent past, those now carrying on about Trump’s abuses of justice are effectively preventing any effort at reform or recovery. This is gross irresponsibility on the part of people who pretend to the rectitude of the old New England preachers.
The only question before us, the one that “really matters:” No, the ones that really matter, plural, begin with events people of Chemerinsky’s stature set in motion a decade ago. They want a nice, clean judiciary but deflect all thought of their role in befouling it.
Two, there is a larger, broader issue here. I learned long ago in various different places that when a nation’s judiciary falls into decay that nation has set off down a four-lane highway to failed-state status. I made this case in a book I wrote after serving as special rapporteur in Sri Lanka for an Asian human-rights commission. That was in the first decade of our century, when the island nation’s judges and courts had given way to beyond-belief corruption. When the judiciary goes and no mediating institutions remain, disorder is the inevitable outcome: This was the argument in Conversations in a Failing State.
Such is the drift of our century that what I once took to be a malady limited to the worst-off nations of the Global South — a quite unfair presumption — has made its way northward. So it was I made this same argument again, in this space two years ago, as I watched the Democrats develop those bogus lawsuits with the intent of keeping Trump out of politics and, so, from competing with Biden in the 2024 elections. This was another step in the wanton weaponization of justice — just what I saw as I watched solicitors and barristers cower in their chambers in Columbo all those years ago.
We find ourselves in another of those it-can’t-happen-here moments, don’t we? Put the thought out of your mind if you happen to entertain it. Even for those who have no use for Donald Trump, it was bad enough to watch the DoJ instrumentalize the law to attack a presidential candidate. Now we must face the bitter reality that those years of institutional misuse serve to license Trump and his people on the judicial side to carry on the abuses. I view the Khalil case, extreme as it is, not as a departure but as a dreadfully logical outcome. The Democratic elite of the recent past, this is to say, now stand as the Trump people’s enablers. Straight line between the two.
In this connection we have various among us cheering on the professed determination of Pam Bondi and Kash Patel, Trump’s A–G and the FBI’s new director, to clean it all up (and out) at Justice and the F.B.I. Paul Street, the acutely observant Chicago essayist, calls these people “Trumpoleftists,” a wonderful term. I understand the temptation to approve of the administration’s project, even if Street has no sympathy for it, but it is not to be entertained. It is ever clearer that Trump’s people are addressing the weaponization of justice by weaponizing it all over again to their own ends. I don’t see much more in the offing.
We are reading a very singular book in our household, and I will end with a mention of it. It is of another time and place and circumstance, but stay with me.
Ella Lingens–Reiner was an Austrian physician who spent two years and two months at Auschwitz–Birkenau after she was arrested during her first attempt to secret Jews to safety. Prisoners of Fear, her finely written account of her time in captivity, was published in 1948 by Victor Gollancz, a small literature-and-politics house in London. (It did not long outlive its founder on his death in 1967, alas.) Lingens–Reiner’s book is a rarity now and just recently came to our attention.
The other night we came to a passage that is stunningly, unexpectedly pertinent to what has become, or — to preserve a smidge of optimism — what is becoming of America’s judicial system. These sentences stand well on their own:
My own term in a Nazi police prison confirmed a general conviction which could be corroborated by hundreds of cases; never before had there been so much talk about “law and justice being close to the people”; never before had law and justice been so remote, so deeply estranged from the moral instincts of the people, never before so exclusively subservient to the interests of a ruling clique and its war aims….
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