Lesser Evils

I’m embarrassed to say that my first thought when catching up on the Mahmoud Khalil saga that’s playing out in New York City and certain undisclosed locations was “This is great politics.”

Khalil is a recent graduate of Columbia University who served as negotiator and spokesman for pro-Palestinian protesters during last year’s notorious campus tantrum. He received his master’s degree in December but stuck around, turning up last month as a leader of the demonstrations at Columbia-affiliated Barnard College that erupted after two students were expelled for disrupting a class on Israel’s history.

Importantly, he’s not a U.S. citizen. (Although he is married to one.) He’s a lawful permanent resident, i.e. a green card holder.

On Saturday a group of federal immigration agents showed up at his door and arrested him, allegedly informing his lawyer in a phone call that the State Department had revoked his student visa. He doesn’t have a student visa, she told them. He’s a legal resident! That’s been revoked too, an agent supposedly replied. She claims that when she asked to see the arrest warrant, he hung up.

What happened to Khalil after that isn’t clear. Although the arrest took place in Manhattan, he wasn’t at the detention center in New Jersey when his wife came to visit. As of Sunday his lawyer had lost track of his “precise whereabouts” but had reason to believe he’d been moved to Louisiana. The next day a federal judge in New York ordered the Trump administration not to deport Khalil pending a hearing in the matter on Wednesday.

The president took a victory lap afterward anyway. “This is the first arrest of many to come,” Donald Trump crowed on Truth Social. “We know there are more students at Columbia and other Universities across the Country who have engaged in pro-terrorist, antisemitic, anti-American activity, and the Trump Administration will not tolerate it. Many are not students, they are paid agitators.”

“Great politics,” I thought, leaning all the way into nihilism.

Am I wrong, though? If you’re going to ask the public to support you in a matter as dodgy as “disappearing” an undesirable immigrant, you’ll want to find one of the most undesirable immigrants possible. That’s Khalil. The movement with which he’s associated is rancid with cultural pathologies that most Americans despise—campus radicalism, Hamas hagiography, antisemitic slop. He’s exactly the sort of figure you’d target if you were a nationalist demagogue keen to earn a free hand from Americans in removing foreign-born troublemakers with dispatch.

At the heart of the Khalil matter is a simple intuition: Guests of the United States should demonstrate respect for our country’s values. If you show up here and start running interference for genocidal “from the river to the sea” Hamasniks, you’ve failed to show that respect and deserve to be treated the way any unwelcome guest would be. My guess is that a large majority of us, including plenty of Democrats, share that intuition.

The Khalil matter is great politics for Trump, then. Or so I assumed until I saw a tweet from, of all people, Ann Coulter.

Unsettled law.

Coulter is very much a restrictionist on immigration but she’s also a lawyer by training and broke years ago with the mindless Trump apologists who now dominate the right. “There’s almost no one I don’t want to deport,” she wrote as news of Khalil’s ordeal circulated, “but, unless they’ve committed a crime, isn’t this a violation of the First Amendment?”

Isn’t it?

It’s a crime under U.S. law to supply terrorist groups like Hamas with material support but supplying them with rhetorical support is just a fancy way of saying “free speech.” (Khalil “led activities aligned to Hamas,” in the clumsy phrasing of the Department of Homeland Security.) If the feds are looking to revoke his green card for nothing worse than stating obnoxious political opinions, that’s as clear a case of the government targeting someone for wrongthink as we’re ever likely to see. And that has to violate the First Amendment. Doesn’t it?

Actually, no one knows. Various heavy hitters among the legal commentariat have weighed in on Khalil’s case in the last 72 hours, including our own Sarah Isgur and David French, and the consensus on whether he can lawfully be expelled for his political views is “Uh, maybe. Probably?” 

Two federal statutes arguably provide authority to do so. One says that “an alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” The other authorizes the removal of an alien who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” Put those two together and the feds have a wide berth to oust impolite “guests.” Pretty simple, no?

Well, not really. For one thing, there’s wiggle room in that text. Is it “reasonable” to believe that agitation against Israel by some campus cosplay jihadist is creating “serious” foreign policy consequences for the United States? Might the answer depend on how much influence Khalil has within the pro-Hamas movement or is merely being part of the movement enough? Should it matter whether he’s refrained from violent incitement in his own rhetoric? Does it matter if the war in Gaza is ongoing or over?

There’s actually a specific exception in the statute (flagged by National Review’s Andy McCarthy) that prevents the feds from deporting an immigrant on foreign policy grounds due to his “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien’s admission would compromise a compelling United States foreign policy interest.” In other words, the law errs on the side of not letting the government oust foreigners for their politics. Only a “compelling” reason will entitle it to do so.

The second statute looks like a slam dunk by comparison, as presumably Khalil is guilty of having “persuaded others to … support a terrorist organization” at some point in his agitation about Israel and Hamas. But here’s where we run into Coulter’s question: Even if he is, does the First Amendment override that statute and prevent the government from deporting him for what would surely be protected speech if an American citizen engaged in it?

Eugene Volokh, an eminent First Amendment scholar, sifted through the case law and concluded, “Uh, maybe?”

The tricky thing about Khalil’s case is that, as a green card holder, he’s in a legal gray zone. He doesn’t enjoy the same privileges as a citizen but he certainly enjoys more than a tourist with a visa. Unlike a foreigner who’s seeking entry to the United States, he’s already a resident and has built a life here. (His American-citizen wife is pregnant, in fact.) Think of him as a tenant, possessing fewer rights than a landowner but a lot more than a “guest.” Hence the uncertainty in the case law on non-citizens’ speech rights: When exploring a hazy gray zone, different courts are destined to reach different conclusions about its precise constitutional parameters.

Without legal clarity to guide one’s thinking about Khalil’s rights, reactions to his arrest are destined to function like a political Rorschach test. The test is this: Who is the lesser evil at this point, campus Hamasniks—or the president of the United States?

‘Shalom Mahmoud.’

Liberals who’ve spent the past three days screeching about Khalil’s First Amendment rights may (or may not!) be wrong on the law but they’re right on the politics. The facts of this case feel clammy because they’re another reminder of how blatantly Trump’s administration discriminates based on viewpoint.

If you’ve criticized the president in the past, he might rescind your federal security detail even if doing so places you at risk of death. If your law firm has opposed him in court, he might yank your security clearances and seek to bar you from federal buildings. If you use colorful rhetoric about him in an interview, one of his attack-dog prosecutors might threaten you with baseless criminal charges to shut you up. If you don’t adopt his preferred “patriotically correct” terminology in your news coverage, your access to the White House might be reduced.

Most viewpoint discrimination in Trump 2.0 has happened below the surface of policy, though. After two years of “retribution” rhetoric from the president on the campaign trail, for instance, America’s titans of industry realized early that their businesses would be harassed by the federal government if they took a hostile stance toward him and acted accordingly. In a culture of fear, the state doesn’t need to actually discriminate against dissenting viewpoints very often; once everyone understands what’s expected of them, most will take care not to dissent in the first place.

In isolation, the Khalil case is a bog-standard matter of evicting an apologist for terrorism. But in the wider context of Trump’s postliberal project to silence enemies, it’s another slip down a slope that he’s working day by day to make as slick as possible. In particular, law professor Steve Vladeck noted, the president’s warning that Khalil’s arrest is the first of many to come “suggests that the government intends to use these rarely invoked removal authorities in enough cases to seek to deter non-citizens of any immigration status from speaking out about sensitive political issues, even in contexts in which the First Amendment does, or at least should, clearly protect their right to do so.”

At the rate we’re going, with the second-most powerful man in the government now calling supporters of Ukraine “traitors,” a green card holder agitating for the Ukrainian military to target Moscow might also potentially be targeted for removal on grounds of “espousing terrorism.” If you don’t think Trump’s capable of that, why not?

Another clammy aspect of Khalil’s case is the procedural irregularity involved.

That’s been another hallmark of the president’s first seven weeks. The bureaucratic upheaval created by DOGE, the on-again off-again trade wars with Canada and Mexico, the weapons and intelligence ebb-and-flow to Ukraine—the chaos seems deliberate, as if to prove that you can do big things if only you’re willing to ignore procedural niceties and let Men of Action like Trump and Elon Musk work their will.

The detention of Mahmoud Khalil is in line with that attitude. Experts in immigration law told the New York Times that revoking a green card is actually “quite rare,” involves a lengthy process, and typically only happens when “the holder has been accused and convicted of criminal offenses,” all of which makes Khalil’s case a notable outlier. Another immigration attorney told journalist Jesse Singal that it’s unusual for a lawful permanent resident to be placed in detention pending a hearing on rescinding his green card and very unusual for him to be sent from New York to the American South before that hearing occurs.

Two days after Khalil was arrested, the specific grounds on which the feds hoped to deport him were still unclear. The whole thing stinks of the White House wanting to make a spectacle of Trump’s “toughness” on Hamasniks by treating Khalil like a terrorist, snatching him without the normal legal process that’s due and whisking him off to parts unknown.

As if to prove the point, in response to the outcry the official White House Twitter account offered nothing but bravado, posting a stark black-and-white photo of Khalil with the snide caption “Shalom Mahmoud.” If you weren’t worried already about the Trump administration flouting procedural rules to find out what sort of lawbreaking it can get away with, watching them disappear a guy off the street and then taunt him in a public communique should do the trick.

Hypocrisy.

A third reason to feel clammy about Khalil’s detention, though, is that the Trump administration isn’t as serious about antisemitism as it likes to pretend.

And it does like to pretend. Sources told the Times that the government’s case against Khalil will be based on the fact that the protests he helped lead “were antisemitic and created a hostile environment for Jewish students at Columbia” and that his continued residency in the U.S. undermines the Trump administration’s foreign policy goal of “combating antisemitism across the globe.” That’s a noble policy aim and a smart political justification for picking a fight with campus Hamasniks. And lord knows, it’s a real problem.

But the White House doesn’t care about antisemitism in the abstract. It cares about delegitimizing the left. It cares about animosity toward Jews when doing so focuses public contempt on progressives, as in Khalil’s case, and not at all when it comes from the right.

Take Andrew Tate. In addition to his many other fine qualities, Tate is a Hamas apologist known to babble about the group’s “masculine spirit of resistance” and the “heroic” death of its leader. Per the Anti-Defamation League, he’s not above using the word “Jew” as a pejorative, has engaged in some light Holocaust revisionism, and gave the Nazi salute in at least one of his online videos. Why did the White House, given its supposedly very serious concerns about antisemitism, intervene to save Tate from Romanian justice and allow him to return to the United States?

Why haven’t the president or his aides objected publicly to some of his favorite podcast bros hosting notorious antisemites, taking postliberal contrarian populist media to its logical conclusion?

Why is his administration hiring people who are prone to antisemitic rhetoric and known to attend antisemitic events?

Why did his clemency for the January 6 defendants not make exceptions for some brazen antisemites?

Why did he host two of America’s most well-known Jew-haters for dinner at Mar-a-Lago around the time he launched his most recent presidential campaign?

If we broaden the question to racism generally, the double standard is even more absurd. It was just a few weeks ago, Jonathan Last remembered, that one of Elon Musk’s DOGE apparatchiks briefly left the job after he was found to have posted things on social media like “Normalize Indian hate” and “I just want a eugenic immigration policy.” Not only was he quickly rehired, the vice president himself intervened publicly on his behalf by whining about how unfair it seemed to punish a “kid”—who’s in his mid-20s, mind you—for some crass edgelord-ing.

Mahmoud Khalil’s mistake wasn’t agitating against Israel, it was agitating against Israel from the left. If he had framed his critique instead as an “America First” lament about greedy Jews siphoning off precious U.S. taxpayer dollars to advance globalism, he’d have a successful podcast, a million-plus followers on social media, and possibly a job in the Trump administration.

So you see, targeting the pro-Palestinian protest movement for deportations isn’t a matter of the White House advancing some high-minded goal. It’s an exercise of raw power inflicted by one illiberal entity with an unnervingly high degree of antisemitic support upon another. I can understand being ambivalent in that conflict given the sleaziness of Khalil’s cause, but I can’t understand concluding that the side with state authority, unlimited resources, and autocratic ambitions is the lesser evil. If you’re willing to assume the administration’s good intentions in this matter simply because you despise the Hamasniks, you’re still missing the forest for the trees.