Harvard draws the legal blueprint for how to fight back Trump's revenge campaign

The legal system in this country has long prided itself on supplying justice in a measured way. Government officials are required to abide by an elaborate set of procedures before they can impose penalties on anyone. But all that seems to have fallen by the wayside in the second Trump administration. Nowhere has that been more evident than in its dealings with Harvard University.

On May 15, the New York Times published an article under the headline “Trump Administration Escalates Harvard Feud With New Justice Dept. Investigation.” It reported that “the Trump administration is investigating whether Harvard’s admissions policies comply with a Supreme Court ruling that ended affirmative action, opening a new front in its widening effort to bring the institution to heel.” The Justice Department is trying to determine whether Harvard’s admissions process has been used “to defraud the government” in violation of the False Claims Act. That act was never intended for such a purpose.

The administration is using it as a tool of vengeance because Harvard has had the temerity to resist the administration’s various edicts. In return, Trump and his subordinates are using every lever at their disposal to make the university pay the steep price for doing so.

That is revenge pure and simple. Revenge, law professor William Miller contends, is “crazed, uncontrolled, subjective, individual, admitting… no rule of limitation.” And it proceeds in an escalating cycle of tit-for-tat moves until one of the parties involved surrenders.

The cycle with Harvard started on Jan. 29 when the president signed an executive order calling for tougher enforcement of government efforts against antisemitism. On Feb. 3, President Trump appointed Fox News personality Leo Terrell to head a federal government Task Force to Combat Anti-Semitism. The day his appointment was announced, Terrell, who has been called “HARVARD’S WORST NIGHTMARE,” took to X to taunt the school. “Harvard, I start work next week!”

In early March, Terrell went on Fox News to lay out his plan to “bankrupt universities by withholding “every single federal dollar.” He added that “If…universities do not play ball, lawyer up, because the federal government is coming after you.” A month later, the administration took steps to make good on Terrell’s threat. It sent Harvard a letter laying out “the pre-conditions your institution must comply with in order to be in good standing and continue to be the recipient of federal taxpayer dollars.” It then laid out those conditions. “They include Harvard reform its international student program “to prevent admitting students hostile to the American values” and “report to the federal government any foreign student who commits conduct violations.”

It also wanted to require Harvard to pay for outside review through 2028 of the school’s “viewpoint diversity” and hire a “critical mass of new faculty” if it is not found to be sufficiently diverse. That is where the university drew the line.

Harvard publicly denounced the proposal. “The University will not surrender its independence or relinquish its constitutional rights.” In short order, the president threatened to withdraw Harvard’s Tax Exempt Status, The Department of Homeland Security said it might revoke Harvard’s certification to participate in the Student and Exchange Visa Program, jeopardizing the enrollment of thousands of international students, and The Department of Education sends a records request to Harvard demanding information on all overseas gifts, plus information relating to “expelled foreign students.”

Harvard again poked the bear on April 21 when it filed suit against the administration.

As one would expect in any administration seeking vengeance, it responded by upping the ante, launching new investigations, cutting off all new federal research grants to Harvard, freezing an additional $450 million in federal funding pledged to the university, and on Thursday “multiple federal agencies sent termination notices all at once — affecting researchers across the university, from the Harvard Faculty of Arts and Sciences to the medical school.”

As the New York Times explains, “In the four and a half weeks since Harvard criticized the government’s demands as overly intrusive and said it would not comply, the administration has aimed at least eight investigations and other actions against the university.”

That brings us to the False Claims investigation. It beggars the imagination to see the law used as the administration seeks to use it. The False Claims Act dates back to 1863, when Congress, fearful that people who were supplying the Union Army were enriching themselves by defrauding the government, enacted it. It has been amended many times since and prohibits anyone from “knowingly” submitting “a false claim to the government or…knowingly making a false record or statement to get a false claim paid by the government.”

As the Times reports, the False Claims Act is “typically used to go after government contractors for swindling.” And “targeting a university under the False Claims Act is highly unusual.”

Moreover, the Justice Department letter about Harvard’s alleged false claim didn’t even specify what was falsely claimed.

It seems clear that this law is being used to harass Harvard and to continue Trump’s vendetta. Investigating Harvard is less about the money it may have obtained from the federal government and more a fishing expedition about the university’s admissions process and its use of diversity, equity, and inclusion programs.

The administration is alleging that Harvard did not change its admissions policies after the Supreme Court ruled affirmative action unconstitutional. Trump’s Justice Department doesn’t seem to care that the university announced that had done so or that, as Reuters noted last fall, “The percentage of Black students in Harvard University's freshman class dropped by more than a fifth following a landmark U.S. Supreme Court ruling that barred colleges from using race as a factor in admissions….”

The “primary focus” of this latest federal government attack on Harvard is to require it to “produce a trove of documents and provide written answers to a list of detailed questions in the next three weeks.” It is also “seeking any text messages, emails or other communications from Harvard officials discussing President Trump’s executive orders earlier this year aimed at rooting out diversity, equity and inclusion programs.”

And, if all that did not reveal the administration’s real purpose, “The Justice Department also gave Harvard 30 days to identify a school official to testify under oath about its admissions policies — and how those polices may have changed after the Supreme Court ruling in 2023.”

For a long time, legal scholars have warned that laws designed for one purpose can be used for others. But few of them could have imagined the way the Trump administration is now using and abusing our Nation’s rules and regulations.

Harvard spokesman Jonathan Swain got it right when he called the False Claims investigation “yet another abusive and retaliatory action…that the administration has initiated against Harvard.” It is as if Trump is channeling God’s Old Testament announcement, "Vengeance is mine, I will repay," with Harvard being one of the president’s most prominent targets.