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Court in the constitution—the lawyers taking on Trump

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The American Civil Liberties Union is the focus of the resistance to Trump in documentary The Fight. But it can’t overcome its limitations, says Nick Clark
Issue 2716
The ACLU looks to the US constitution to beat Trump
The ACLU looks to the US constitution to beat Trump

The sense that there’s a great, high stakes battle raging in US society underlies every aspect of this interesting documentary, released last Friday.

The Fight follows the efforts of the American Civil Liberties Union (ACLU) as it challenges through the courts Donald Trump’s assaults on democratic and civil rights.

ACLU lawyers take on four cases that challenge some of Trump’s flagship policies.

One battles to end the detention of migrant children away from their parents, while another defends the right of detained refugee women to access abortions.

ACLU lawyers also take on Trump’s move to ban transgender people from serving in the military.

And they challenge an attempt to add a question to the census about citizenship status—which would in practice disenfranchise huge ­numbers of migrants and their families.

One thing the documentary does well is show the impact each of these assaults has on the lives of ordinary people. There’s some harrowing and moving footage of migrant parents being finally reunited with their very young children after months of detention and separation.

It also very deliberately presents each case as part of a bigger political battle. ACLU lawyer Josh Block says the ban on trans people serving in the military is “the president’s declaration of open season on trans people”.

There’s also no doubt about the dedication, resilience and sacrifice of the lawyers it follows.

All of them at some point describe the long stressful hours they work because they’ve seen realities of Trump’s rule and can’t bear to stand it.

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But there are also difficult ­questions about their relationship to the bigger fight against Trump that none of them quite manage to square.

There’s unavoidably a connection with the mass protests that have been at the centre of every great ­movement of resistance to Trump. And at first the relationship seems totally harmonious. The film opens with footage of the mass demonstrations that greeted Trump’s 2017 attempt to exclude migrants from seven Muslim-majority countries.

As protests against deportations rage outside airports, volunteers inside offer legal assistance to anyone detained. And as ACLU lawyers win a legal challenge against the order, ­protesters outside the court cheer them on.

But the movement and the ACLU can only go so far together. There are tensions and outright ­conflicts that can’t be overcome.

The ACLU’s commitment to the ­liberal rhetoric of free speech in the US constitution led it to defend the right of Nazis to march in Charlottesville in 2017.

The resulting far right rampage—and the murder of ­anti‑fascist Heather Heyer—put it at odds with the anti‑Trump movement and made even its highest officials uncomfortable.

The tensions are more subtle too.

With a focus on the courts, ACLU lawyers explain occasionally shying away from challenging Trump politically in favour of legalistic arguments they hope will convince conservative judges.

And ultimately, their victories are always short lived. Trump always returns with a new way to push his attacks through the courts.

It all leads one ACLU lawyer, Dale Ho, to a conclusion you might not expect from him.

“A lot of people have been running up to us saying things like, you’re our hope against the forces that have put Trump in power and you’re going to be what’s going to stop this thing. And I think that’s wrong,” he says.

“We’re not going to be able to stop this thing ourselves. Against the power of the federal government and this massive political movement, we’re not going to solve it.

“It’s not going to be lawyers in courts it’s going to be people who turn the ship around.”

The Fight is available to stream on digital platforms now

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