David Cole became national legal director of the American Civil Liberties Union right before Donald Trump became President of the United States. A constitutional law expert and litigator who has argued many times before the U.S. Supreme Court, Cole took a leave from his job teaching at Georgetown University’s law school to oversee the ACLU’s 300 lawyers and direct the entire legal program of the nation’s oldest civil liberties organization—just as ACLU’s membership was about to explode.
I visited Cole in his Washington, D.C., office, where I took an elevator to the fifth floor, walked into a warren of cubicles, and yelled “Hello?”
“Hello!” Cole called back from a corner of the office. He was working at a standing desk with a pile of papers and a view of 15th Street behind him. Dressed casually, with curly hair and a friendly smile, he chatted with me for more than an hour about his new job, his optimism about the growing resistance movement, and how he was politicized by encountering feminism in college.
Q: What got you into this work?
David Cole, national legal director of the American Civil Liberties Union, says his encounters with feminism while he was in college played a key part in how he became politicized.
Cole: My dad was a professor and my mom was a public school teacher and they were both very Catholic but in a very liberal, social justice kind of sense. They taught me that it’s important to defend the most vulnerable and speak out for those who aren’t in a position to speak for themselves. But in college, I wasn’t terribly political. I was vaguely liberal. I was an English major at Yale, and on the swim team. I wasn’t involved in campus politics and didn’t take any political science courses. Then around my senior year in college I got interested in feminism. In terms of my political journey, feminism really was the thing that politicized me.
Q: Why was that?
Cole: I read a book called The Mermaid and the Minotaur by Dorothy Dinnerstein, about how many of our problems as a society stem from the fact that we were principally raised by mothers and not fathers, in families with traditional sex-role divisions. It made a lot of sense to me, that something so personal could have such widespread social implications.
In law school, I did a couple of internships with feminist legal organizations, including the New Haven Women’s Law Collective and Equal Rights Advocates in San Francisco. The lead lawyer at the Center for Constitutional Rights on women’s issues at that time was a woman named Rhonda Copelon. She came to Yale Law School and spoke about a case that she had done in the Supreme Court seeking to get Medicaid to cover abortion for poor people. And I was so impressed by her that I applied to work for the Center for Constitutional Rights.
By the time I was hired, for a summer job, Rhonda had left to teach law school. There wasn’t much in the way of women’s rights work there at the time, and I got involved, sort of by default, in a number of cases challenging U.S. intervention in Central America and related constitutional concerns. I became a civil liberties lawyer, spending much of my time defending activists who had been singled out for harassment or mistreatment (or detention and deportation) for their political allegiances.
Q: The ACLU has gotten a ton of money since Trump was elected and it is now seen as the center of the resistance. What has that been like?
Cole: I think the really important thing is the growth in our membership. The reason our membership went from 425,000 before Trump’s election to over 1.6 million today is because people see Trump as an across-the-board threat to basic civil liberties and civil rights, and we are an organization that for almost 100 years has been defending basic civil liberties and civil rights. With that new membership and with the support that they have brought I think lies tremendous possibility in terms of pushing back and building a movement for civil rights and civil liberties.
‘The reason our membership went from 425,000 to over 1.6 million is because people see Trump as an across-the-board threat to basic civil liberties and civil rights’
Q: How is that possibility being realized?
Cole: You’ve seen it thus far in the travel ban cases. Typically when Presidents target foreigners in the name of America’s national security, as Trump did, Americans are fine with it.
That’s what George Bush did after 9/11. There weren’t major objections for a long time. It goes all the way back to the Palmer Raids, when, after a series of terrorist bombings, we rounded up thousands of foreign nationals, not for involvement in the bombings but for technical visa violations. Americans didn’t raise their voices in protest because it wasn’t their rights that were at stake. Trump followed the same playbook. This time, however, Americans raised their voice and you saw tens of thousands of people going out to airports to protest.
You saw the presidents of every major university signing a letter opposing the ban. You saw the leading science organizations all coming together opposing this ban. You saw retired national security officials, Republicans and Democrats, come out strongly against the ban. Michael Hayden, who was head of the NSA and CIA under Bush, and who I’ve debated on numerous occasions about the CIA’s torture program, put out a tweet the day after the travel ban was issued saying, “Imagine that. ACLU and I in the same corner.”
Here is a President who, in his first week in office, takes a tried and true route for targeting foreigners, waving the flag of national security. And yet he faced tremendous resistance from ordinary folks, from the elite, from former government officials, from Republicans as well as Democrats, and from the courts. I think that’s a huge setback for President Trump and victory for human rights and the rule of law.
One of his other primary promises and goals was to repeal the Affordable Care Act. So far, he has failed there as well. So he’s made a lot of noise about challenging basic civil rights and civil liberties, but thus far he has failed in two of his most prominent efforts.
On other initiatives, we will see if he succeeds. Take increased immigration enforcement in the United States. He issued an executive order on that and there are reports of ICE officers being much more aggressive in picking people up. In order to really increase the number of people being deported, however, he’s going to have to vastly increase the number of immigration judges in this country or radically curtail due process rights. He can say, “I want to deport eleven million people,” but he can’t do that unless he puts vast resources into the job, which he has not shown an inclination to do. And even if he were to invest the resources, if the people mobilize in protest, he won’t succeed. We are still a democracy, and some of the most inspiring activism I’ve witnessed since Trump’s election has focused on resisting his immigration policies.
Q: How big a threat to civil liberties does Trump represent?
Cole: I think Trump’s election poses the greatest threat to civil rights and civil liberties that this country has seen out of wartime—and we might soon be in wartime. But the threat will not come to pass if citizens continue to respond in the engaged way we have seen thus far—in the Women’s March, in the airport demonstrations, in the town halls, in the vastly increased calls to members of Congress, in joining groups like the ACLU and supporting Planned Parenthood. I’ve never seen citizen engagement of this type in my entire career, and it’s around civil rights and civil liberties. That’s a huge opportunity.
‘I think Trump’s election poses the greatest threat to civil rights and civil liberties that this country has seen out of wartime—and we might soon be in wartime.’
Q: It’s exciting to see the mass movement and citizen participation, but there are a couple of giant worries. One is the Supreme Court. What effect do you think Neil Gorsuch will have on the court?
Cole: I don’t think Neil Gorsuch will radically change the Supreme Court. He’s replacing Justice Scalia after all. Obviously, had Merrick Garland been appointed, that would’ve changed the court to a liberal majority for the first time in forty-plus years, but right now it’s status quo.
This court has not been a prime mover for social justice, but for the most part it hasn’t gotten in the way of social justice all that much, either. The fight for social justice needs to focus on other venues—but that’s been true for two generations, and indeed, for most of our history.
The real question will be if Justice Kennedy, Justice Ginsburg, or Justice Breyer is replaced during the Trump Administration. Then you could see a radical reconfiguration.
Q: What about Roe v. Wade?
Cole: I would not expect Roe v. Wade to be overturned by this Supreme Court. Again, if President Trump gets another appointment, possibly. But Justice Kennedy has already shown he’s not willing to overturn Roe v. Wade and certainly none of the four more liberal members are going to overturn it. I don’t know that Chief Justice Roberts would overturn Roe v. Wade. It’s been in place for forty years. The last time the question came up, in Planned Parenthood v. Casey, the Supreme Court declined to overturn it. The Court has cut back on Roe v. Wade in fairly significant ways without overturning it. But last term’s decision in Whole Women’s Health striking down restrictions that Texas put on abortion facilities was a very powerful pro-choice decision. And the five justices in the majority then are still on the court today.
Q: Another big roadblock to progress is voter suppression and redistricting. Do you see hope for pushing back?
Cole: First of all, on voter suppression, there were some really important victories in the runup to the 2016 election that struck down voter suppression measures in Ohio and North Carolina, and if those are upheld, it would place some constraint on the ability to suppress votes going forward.
That’s been the Republican strategy, seeing that the new demographics are against them. Rather than changing to respond to those new demographics, they have too often sought to repress the votes of young people, poor people, and people of color. I think that’s a self-defeating strategy in the long term. We are a democracy and you have to respond to the people. But it’s also an unconstitutional strategy, and the ACLU, along with its allies, has been adamant about supporting everyone’s access to the ballot box.
Q: And redistricting?
Cole: On redistricting, too, there was a very positive decision from Texas, striking down redistricting on racial grounds.
Practically speaking, the real response for those who care about civil liberties and civil rights will be to come out and vote in the 2018 and especially the 2020 elections for candidates committed to those rights, because those elections will determine the makeup of the state legislatures and who will be drawing the next set of lines after the 2020 census.
After Obama won in 2008, the Republicans said we’re going to focus on the states, and they achieved tremendous victories, because the Democrats weren’t really playing that game. I don’t think the Democrats are going to make that same mistake again, and I think the threats that Trump poses to civil rights and civil liberties will bring people out to the polls. We at the ACLU are nonpartisan, but we are partisan about the Bill of Rights, and if people support candidates who believe in the Bill of Rights, our constitutional democracy will be much stronger.
Q: You have called the NRA the most effective civil rights group in the country. Can you explain that?
Cole: I wrote a book last year called Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. It examines how various citizen movements succeeded and one that I looked at was the NRA. Whether you agree with their ultimate goal or not, I think you have to respect their commitment and their strategy. They have shown how you use the power of democracy to protect an individual right, mobilizing their five million members.
I interviewed one of their former presidents for the book, a guy named Kayne Robinson, and I asked him why their members are so much more politically engaged than members of any other group.
He said, “The key is you have to have the threat.” The threat for the NRA is that the liberals will take their guns. Liberals often dismiss that threat, but precisely because liberals are so dismissive of the NRA, it feeds into the credibility of that threat for NRA members.
Well, those who believe in civil liberties and civil rights now have the ultimate threat in Donald Trump. I think that’s going to continue to bring people out in ways that we haven’t seen before. We are a democracy. If people come out, we can change the direction of the country.
Q: What is the ACLU’s next big focus?
Cole: Reproductive freedom will continue to be a big concern, with states increasingly passing more restrictive abortion regulations and the anti-choice movement emboldened by President Trump, so I think we will continue to see a great deal of activity in pushing back against restrictions on women’s reproductive choice. We’re concerned in particular about the defunding of Planned Parenthood.
We’re focused on voting rights, because given Trump’s lies about millions of fraudulent voters, we expect to see renewed efforts to suppress votes in the name of fighting this imaginary threat of voter fraud. And the battle for LGBT rights, civil rights more generally, and criminal justice reform all got much tougher when Jeff Sessions took over as Attorney General. We will be stepping up our efforts in all three areas.
Finally, one area we haven’t yet seen major developments in, but where we fully expect we will, is national security and civil liberties. This President said he’d like to reintroduce torture and dragnet electronic surveillance, and I think he will push the envelope in ways that will raise very serious civil liberties concerns. But we will be pushing back.