The Trump Administration’s Attack on Knowledge Institutions

Guest Blogger

For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.

Vicki C. Jackson

[This essay is adapted from a piece originally published March 28, 2025 on Verfassungsblog]

Why knowledge institutions are crucial for constitutional democracies

Knowledge institutions – including universities, the truth-oriented press, government offices with data collection or scientific responsibilities – are crucial for constitutional democracies. They have as a central mission the search for truth or better understandings, through independent application of disciplinary or professional standards of reliability.  Without free discussion based on knowledge, the democratically legitimating role of public participation in elections and policy processes declines. Elections become less meaningful indicators of public views; public checks on poor policy choices, or abusive or corrupt governance, dwindle. A constitutional democracy is committed to the rule of law and the equal protection of rights – to which ends the public must be able to know what the laws are, what their rights are, how to protect those rights, and how well the legal system is functioning. The exercise of rights – whether individually or by organizations – will often depend on a foundation of informed choice.

Institutions provide the home where much knowledge is produced. As explained in prior work (e.g. here, and here), they are critical to sorting through the many claims that bombard us about what is true, and they help protect their working members’ rights in many ways. But knowledge institutions cannot perform their knowledge – creation/verification roles if they are at risk of being punished by the government. They avoid topics or views that may upset the government. As Steven Levitsky says,

“When you see important societal actors – be it university presidents, media outlets, C.E.O.s, mayors, governors changing their behavior in order to avoid the wrath of the government, that’s a sign that we’ve crossed the line into some form of authoritarianism”.

To be the kinds of institutions healthy democracies need, knowledge institutions must honestly and independently apply their own institutional criteria for truth-seeking. Intimidating knowledge institutions not only chills their members’ willingness to be critical, but also the willingness of others in society publicly to question the government. (Attacks on these institutions are often coupled with attacks on unpopular minorities, such as foreign student protesters, and other assaults on constitutional democracy.)

And this is what is happening in the United States today, across many different kinds of knowledge institutions.

The role of law

Knowledge institutions are interdependent. Academia and the press depend on government statistics; government offices depend on press reports of problems requiring attention and on university analysis of long-term effects that may be the subject of or require regulation. Yet the entire U.S. knowledge infrastructure is under real threat.

The significance of these attacks is magnified by concurrent attacks on the role of law. The Trump Administration has sanctioned or threatened major law firms, essentially because they represented or employed persons perceived as Trump’s opponents; it does not appear that the decisions to revoke security clearances for the lawyers were based on evidence of actions that threatened national security or otherwise justified revocation. In other Trump Administration action, the US Attorneys’ office in DC announced it would not consider Georgetown Law graduates for federal employment because of Georgetown’s DEI commitments. All this without any hearing or judicial findings – and without any new statutory or properly promulgated regulatory authority. These efforts may well intimidate lawyers from representing persons the Trump administration opposes.

Administration members and supporters have also threatened judges – with defiance of judicial orders, and removal from office – eliciting an unusual public response from the Chief Justice. These and other threats warrant sustained resistance, like that offered by the American Bar Association.

When a federal official in 2007 threatened law firms that were representing GTMO detainees, there was an outcry and the threats were disavowed by the Bush administration. This reflects a correct constitutional understanding of the role of lawyers here. The silence today is deafening – with some exceptions, including the ABA statement, Princeton University’s president’s statement, and the Georgetown Law Dean’s response to the announced refusal to hire its graduates.

A core ethical obligation of the Bar is providing representation even to unpopular clients; the adversarial system of law depends on this. A core element of a democracy is that election winners do not persecute election losers simply because they were opponents; doing so elevates the stakes of loss and may contribute to erosion of democracy (because those in power won’t want to risk a fair election and possible loss of power). Yet overbroad immunities for serious criminal acts by those in power can remove essential guardrails; knowledge and legal institutions are essential to maintaining a proper balance, preventing politically motivated prosecution without removing those guardrails. And the rule of law not only requires notice and clarity about the law, but also stability in the law. From dismantling entire federal offices funded by Congress to penalizing universities and employers for DEI programs or research encouraged by prior administrations, an across-the-board disregard for stability has been shown. Large-scale changes with serious material consequences should be made through reasonable legal processes, not by executive fiat.

Time for courage – and resistance

The only source of opposition from within the government thus far has been from the federal courts, whose judicial independence to apply the law is being demonstrated by courageous judges. As Salman Rushdie is reported to have said in 2008,

“Two things form the bedrock of any open society – freedom of expression and rule of law. If you don’t have those things, you don’t have a free country.”

It is a time for courage and for the institutions of knowledge, of law and lawyers to resist – clearly, and repeatedly, for all have a stake in preserving knowledge-related freedoms and the rule of law. Over the long haul, knowledge institutions need also ask themselves how to improve public trust in their processes and thereby help forestall future attacks.

By Vicki C. Jackson is Laurence H. Tribe Professor of Constitutional Law, Harvard Law School. You can reach her by e-mail at vjackson@law.harvard.edu.