Rule of Law: Don’t Obey in Advance, But Also Don’t Give Up in Advance
For some time, we’ve all been assuming that Trump will defy court orders reining in his assault on the government. And then, in the wake of Judge Paul Engelmayer’s order enjoining Scott Bessent from altering Treasury’s payment system before Friday, JD Vance ran his mouth, convincing everyone that that moment is already here.
Overnight, filings in at least two of the lawsuits against Trump’s attacks suggests that Trump is, at least for now, complying.
- In the Rhode Island case in which states enjoined OMB from withholding government grants the government filed a response describing, among other things, how they’ve worked to ensure payments to Oregon continue.
- In the New York lawsuit, also brought by states, DOJ asked for clarification of the scope of Engelmeyer’s order and opposed the breadth of it (noting, that there were contractors who did work on the system and also listing some senior Treasury officials, political appointees, who needed access). With that, Thomas Krause submitted a declaration saying he’s the only Special Government Employee who currently has permission to access the system (meaning they’re also complying with Colleen Kollar-Kotelly’s order in DC), but also revealing that Marko Elez — the DOGE boy who was included in Kollar-Kotelly’s order — has not returned to Treasury. Krause even notes (as I did) that the order to destroy what Elez has done likely conflicts with the order Kollar-Kotelly issued.
DOJ is pushing at the terms of the orders limiting government actions. But it at least claims it is complying.
There is other conflicting evidence about implementation. I have also seen reports that USAID people stationed overseas were having their access to communications systems restored, in compliance with Carl Nicoles’ order. But WaPo reports that the Administration continues to process resignations in potential defiance of George O’Toole’s order halting the Fork in the Road program.
I don’t doubt that at some point Trump will defy the courts. But for a number of reasons, I suspect they won’t outright defy judges yet.
One main reason is obvious: Trump and Russ Vought want John Roberts to grant him the authority to — basically — neutralize Congress’ power of the purse. To do that, he needs a clean appellate record. So he has to go through the process of engaging in good faith (even while arguing, as he did in his response to the Engelmeyer order, for a maximal theory of Executive power).
Another reason likely has to do with Pam Bondi. She has her own malign goals for DOJ, such as a likely assault on medical abortion pills, both between and within states. Plus, she is pursuing Trump’s attacks on sanctuary states.
But to use DOJ for these policy purposes, there has to be a DOJ, with attorneys more competent and experienced in Federal litigation than Ed Martin, the Acting US Attorney in DC. With the possible exception of the birthright citizenship defense, DOJ has real AUSAs fighting these cases, AUSAs who are going to be unwilling to risk their bar license on frivolous legal arguments or lies.
Finally, I think DOJ is in a risky situation in its confrontation with attorneys and FBI personnel. Ben Wittes noted recently, the Administration needs the FBI, in ways it doesn’t need USAID personnel, at least not in the same potentially catastrophically visible way they need the FBI.
The FBI rank and file have power in this equation that other agencies, such as USAID, for example, do not have. The Trump administration does not need USAID. It wants to eliminate foreign aid anyway, so if the personnel at the aid agency get uppity, who cares? And if they quit? All the better.
The FBI is not that simple. For one thing, the administration does need law enforcement. If there’s a terrorist attack, and there will be, and the FBI is not in a position to prevent it or investigate it quickly and effectively, the administration will take the blame.
This administration also draws its legitimacy from backing the blue. Even in their war on the intelligence community, Donald Trump and his people always tried to distinguish between the rank and file and the “bad apples” who were running things. Waging a full-scale war against the nation’s premier law enforcement agency, a war that is all about targeting street agents for having done their jobs, is a dangerous game—far different from sacking an FBI director, or even two, who went to some elite law schools and served at the upper levels of the Justice Department.
Then there’s the problem of capacity. FBI agents are actually very hard to replace—good ones are, anyway. The physical demands are significant. Most have specialized education of one sort or another. And while people often imagine FBI agents as glorified cops who kick doors down, the truth is that a lot of agents have exquisitely specialized expertise. The training of a good counterintelligence agent takes many years. Some agents have specialized scientific training. There are even agents who specialize in art theft. Take out a thousand FBI personnel for political reasons, and you destroy literally centuries of institutional capacity. A good FBI agent is much harder to create than, say, a good assistant U.S. attorney.
The confrontation with FBI has allowed accidental hero, Brian Driscoll (who is only serving as Acting Director as opposed to Acting Deputy Director because the White House made an error), has played this well, including by raising his own profile and the successes of the FBI.
That hasn’t stopped DOJ from demanding loyalty pledges, in the form of treating the mob that violently attacked cops and the Capitol as more patriotic than the cops themselves or the Members of Congress who did their duty — effectively (though WaPo doesn’t make this clear) forcing FBI agents to disavow treating a violent attack as a crime. But that, in turn, risks real backlash.
To be sure, there’s a lot of garbage that’s being dealt here. DOJ told Colleen Kollar-Kotelly that DOGE at that point only had read-only access to Treasury data (which Anna Bower recognized as an attempt to parse). But a footnote in the overnight filing in New York confesses that’s false.
Since January 20, 2025, one other Treasury employee—Marco Elez—had “read only” access to or copies of certain data in BFS payment systems, subject to restrictions, and access to a copy of certain BFS payments systems’ source code in a “sandbox” environment. Krause Decl. ¶ 11. Mr. Elez resigned on February 6, 2025 and returned all Treasury and BFS equipment and credentials the same day. Id.
That footnote cites Krause’s declaration. But the bit about the sandbox copy is not in the cited paragraph.
Since January 20, 2025, one other Treasury non-career employee—Marko Elez—had access to BFS payment systems and payment data covered by the order. Mr. Elez resigned on February 6, 2025, and returned all Treasury and BFS equipment and credentials the same day. Treasury staff have quarantined and disabled access to all devices and accounts used by this individual, which can now only be accessed by civil servants with a need for access to perform their job duties within the BFS who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations. Further, based on technical controls in place, BFS oversight of Mr. Elez’s work, instructions provided to Mr. Elez regarding proper data handling, and subsequent technical review of his activities, I currently have no reason to believe Mr. Elez retains access to any BFS payment data, source code, or systems. I am concerned that deleting the contents of these accounts and devices would violate Treasury’s document preservation duties in connection with related litigation entitled Alliance for Retired Americans, et al. v. Bessent, et al., Civil Action No. 25-0313 (CKK) (D.D.C.).
Similarly, an OPM suit may well prove that DOJ has misrepresented other claims to courts. And as the FBI lawsuits hung overnight, DOJ forced Driscoll to provide names of all the FBI Agents who worked on January 6 cases.
But these discrepancies may well be useful. At the very least, it provides cause for the AGs to insist that Krause appear before Judge Jeannette Vargas, the judge assigned to the case (who ordered the parties to try to clarify Saturday’s order) to explain what Elez was doing with his sandbox and why anyone should believe he hasn’t been rehired, somewhere, to play in his sandbox some more. That, in turn, would support the very cybersecurity arguments that various lawyers are trying to make. And it’ll advance the reporting already going on.
JD Vance might well like to simply ignore Engelmeyer’s order. Mike Davis might want Trump to appeal this immediately to SCOTUS. Trump might want to start siccing his mob on judges.
But there are good reasons to believe that that won’t happen, yet — at least not until Trump gets a few more of his national security and DOJ nominees through the Senate.
And until then, this legal process is a tool — a tool that can be used to buy time, but also a tool to use to hem in Trump’s mob.
Update: In RI, John McConnell issued what is likely the first, “no really, you have to follow my orders” order.
Update: DOJ has appealed McConnell’s order, even though it is not ripe.
Meanwhile DOJ has filed really long filings in DC in an attempt to persuade Carl Nichols to reverse his TRO in the USAID example, basically slandering unnamed professionals left and right. Things do look more dire, because Trump is basically refusing to fund blue states until SCOTUS tells him to–and maybe even not then. Meanwhile, Senate Republicans have simply capitulated to Trump’s insane nominees.
Yikes. So then as one of the posters on the previous thread said, is an AI generated summary or sandbox environment legally the same as a “copy?”
If an AI generates it as opposed to a human, does copy apply? The AI might even recode it in a different form (but preserve the info) such that they could claim it’s not a bit for bit copy (like a forensic image would be).
In other news, another Friday night coup happened. Musk’s boys are trying to retroactively cap all indirect grant costs at 15%, whereas most premier biomedical institutions have negotiated indirects (which include overhead, utilities, depreciation of research facilities, salaries for support staff, etc etc.) of 50-65% of direct grant costs. There are executed agreements that memorialize that freely available online to prove it as well. Per the CFR, you cannot just “change” the indirects, they must be negotiated. And the indirect costs are applicable for the lifetime of the grant (often 5 years) even if the indirects are subsequently renegotiated later.
This, if not enjoined by the the judiciary, will have catastrophic impact on R&D insitutions.
The 15% grant cap is something that I’d really watch. Just about every state has a flagship state university that does a significant amount of biomedical research. The presidents of all of those schools are shitting themselves right now, and every governor is hearing about how bad this will be. This may end up being “paused” once the expected damage really starts to sink in with people. On the other hand, Trump might just plow ahead, and soon the NIH budget will be on the chopping block, which will cause even more damage.
I think Trump plans on giving waivers to red state universities.
Maine will be interesting, as one of the declarations in the Dem AGs lawsuit is focused on a Maine University.
Vance is trying to be clever. He’s an attorney. He clerked for a federal judge. He knows how the law works, what judges do, what they can and can’t do, and what they won’t do. His tweet is intended — if I can surmise his intent given the facts at hand — to rile up supporters who don’t know that judges don’t tell generals how to conduct military operations, don’t “command” attorneys general (of any gender), and do not interfere with the executive branch’s legitimate exercise of power.
Any first-year law student would quickly and clearly be corrected in class if they made the claims Vance is making. The same would go for any high school student in a civics or American Government class. Vance’s words are disingenuous noise unbefitting a member of the bar; coming from the vice president, they are an indication of a man acting out of either an inexplicable ignorance or an inexcusable bad faith, or some combination of both.
It’s bad faith, without a doubt (pun, sort of).
It’s also bad polemics, along with Musk’s comment about impeaching another judge who was among the 9 (and counting) who’ve ruled against Trump’s actions in this very early going. I’m not using “polemics” in the usual sense, though; the judiciary, as some of those rulings explicitly indicate, pay attention to the news, and I imagine especially so when their ranks are being overtly dissed and threatened.
edit: …overtly *and sneeringly* dissed and threatened *by those who control an “equal branch” of government.*
Vance is trying to amp up magas. Leading to threats of violence against judges. The fact he’s a lawyer makes it all the more egregious
Ianal, so have nothing of substance to offer. Just my appreciation for the hard work you do. Thanks.
Over the last 48 hours or so there have been increasingly frequent mentions of the “red line” – ignoring injunctions. Even the ever unctious Ezra Klein slipped it in his “don’t believe” production but oh so gently and you might have missed it if you were not paying close attention.
The project – since the beginning of the “starve the beast” imagery of Reagonomics – has been to eliminate the progressive income tax, whether on individuals or corporations. Up to now the regressive tax project has been enacted with deficit spending. This time there is a real chance that the debt ceiling will not be raised, if the Democrats hold firm and just a few of the crazier Republicans hold firm as well. This will leave only one option to continue the project: cancel spending on everything. The tariffs shit is just an attempt to return to the pre-progressive era way of financing the government. Regressive sales tax instead of progressive income tax.
They are risking a complete decomposition of the social state, such as it exists in the US, for this single end. I believe they will not stop as they know this is their last chance. I am not sure, however, at all, if the Democrats in congress have the strength and clarity to absolutely refuse to go along, and let the government go into shutdown in March. Call the bluff. Not sure at all.
If the Democrats hold firm, and Roberts blinks, the air will be out of the balloon and Trump will be exposed. All that will be left will be an attempt to engineer a “Reichstag fire” moment and then terror and violence against the American people. Hard to organize with large segments of the law enforcement operation in disarray.
Trump won with 49.8% of the vote, and the percentage of registered voters who participated was 52.2%: https://www.kff.org/other/state-indicator/number-of-voters-and-voter-registration-in-thousands-as-a-share-of-the-voter-population/
Multiply those two percentages and you get Trump’s share of eligible voters wss 26%. Of course we blame those who didn’t vote, but that number, 26% of eligible voters, indicates just how tenuous Trump’s hold on the country’s good graces really is.
Not only will these draconian EOs likely stir a good proportion of the non-voting public to oppose him, but they will also (as has already been noticed in a number of cases) carve his own base away from him. IOW, if he goes where we think he’s going, into despotville, he will have to contend with a very lopsided resistance. With that in mind, a Reichstag fire wouldn’t go like it did for Hitler, especially since that meme has been well circulated already, such that it’s almost expected of him.
The edit feature dropped out right after I posted this, and I have one correction: the percentage of *eligible* voters who participated was 52.2%.
What’s dismaying tho is that it appears trumps favorability rating is up around 53% per cnn. BUT none of his actions have impacted most Americans. Yet
@ Gacyclist 12:04 pm:
Trump has declared war, and is claiming America is being attacked by the Left. The last war we had against a non-threatening foe that we made up stories about turned out well for everybody, right?
This will go down in history as the quintessential example of projection in the annals of everything.
26% = “Mandate!”
Someone who’s gone through numerous bankruptcies may decide to default on our debt. Very unlikely, but at this point, I’d be ready for just about anything.
Even if they refused to go along, shutting down govt, what prevents Trump from just minting a coin.
I agree we’re most likely headed to the decomposition of the social state. With snowballing crises to boot.
I’m wondering at what point Wall Street balks at this.
I actually felt a little better after reading the post that the system just might hold even with the severe damage already done.
But Max404Droid, you’ve pointed out when and why I think there’s a good probability the state social safety net drops out from the bottom and I and many others will loose their benefits.
A lot can and will happen in the next 60-75 days.
I don’t understand why playing Trump’s game is the plan. Why ask the MAGAs for permission to stop things when the burden is on them to ask us for permission to do things?
Unless I missed the memo, Section 3 of the 14th Amendment is still in effect. The Supreme Court stated their general opinion on the matter in a case narrowly scoped to ballot access for a primary in Colorado. They said that only Congress can rule that a president is disqualified under the 14th. However, this ruling was binding only for ballot access, as that was the scope of the matter. For all other scopes it is just a suggestion.
Since the 14th has no strong opinion about ballot access this is fine. However, it does have a strong opinion on actually holding office. It says, “No person shall … hold office” if certain criteria are met. Trump meets all of them. He checked them all off before the election, but more to the point, he did it again AFTER the election, when the voter’s opinions could not be measured.
Within 24 hours of very publicly taking the oath of office he very publicly “gave aid or comfort to the [j6 insurrectionists].” We know they were insurrectionists because several of them were convicted of Seditious Conspiracy in jury trials. We also know this was not some random act of mercy; he tweeted that they could now carry on as before. And many of them are doing exactly that.
So – again, unless I missed the memo – the word “shall” in legal documents is still binding. Section 3 is self effecting. It sounds crazy, but for the first time since the country’s founding we don’t have a president. Within 24 hours of taking office Trump disqualified himself and is no longer holding office (that “shall” again). Everything he has done since he disqualified himself – every EO, every request to Congress, every authorization to Musk – is an illegitimate act by a private citizen. We (the resistance) just have to notice this fact.
The 14th Section 3 is also very specific on how to remedy this situation. The Supreme Court’s opinion doesn’t matter; the judicial branch don’t have jurisdiction. Neither does anyone in the Executive branch. The black and white text of the Constitution gives Congress the power to fix it.
We can’t continue as a nation without a president. Johnson and Thune need to schedule votes ASAP. Both houses have to act to lift the disqualification. If Trump gets 2/3 in each he resumes as president. If he only gets one, or none, Vance should be immediately sworn in.
Note this isn’t a partisan opinion, I don’t want either Vance or Trump to hold office as president. We have a legitimate constitutional crisis from Trump’s own actions. No one on the left forced him to violate Section 3 of the 14th Amendment. In fact, we loudly advised against it. So did members of his own staff. But he’s lazy and stupid and said, “F*&# it, pardon them all.” He owns it, and now he needs to ask Congress to fix it.
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This podcast by Greg Sargeant with Norm Eisen helped me breathe a bit easier this morning. Here’s the link> https://newrepublic.com/article/191336/transcript-musks-threats-darken-maga-rages-fresh-legal-losses
Thank you.
His essential paragraphs
“: I led a big study—170 pages, 700 footnotes, thousands of sources, interviews with practitioners around the world. Why did Poland, Brazil, Czech Republic, where I was ambassador, all succeed in recent years in ousting autocratic regimes, leaders like Trump, whereas Hungary and Turkey failed? And we derived a set of lessons.
There’s seven essential ones. (1) Defend the rule of law. That’s why I litigated that FBI case. (2) Fight corruption. That’s why I’ve filed multiple cases against Elon Musk—he’s Trump’s favorite oligarch. (3) Pluralistic government. That’s why I’m litigating the birthright citizenship case where Trump is trying to rewrite the Constitution to pick and choose who’s the citizens. (4) And defend elections. I’m in North Carolina now. The MAGA election saboteurs are trying to steal back a Supreme Court seat that they lost there. (5) Fight disinformation, (6) protect media, and (7) explain that democracy delivers better than dictatorships. Those are the last three points.”
“If America does those seven things, we will survive and even restore and thrive as a democracy. We’re at a crossroads, and we’re doing them, Greg. We’re doing them. This was the week that all seven started to click.”
I suspect even SCCOTUS would balk at having no power over government.
And yet they conferred almost total immunity for him in its ruling a couple years ago. I’m not really feeling entirely confident in scotus doing the right thing.
I don’t think they expected what we’ve got now: government by unelected non-official techbros.
They’re not elected either…
Currently, just another branch of the cult.
Speaking of DEI-ists, where the hell is Ginny???
As I said in another thread here: Trump is presenting SCOTUS with them dropping “coequal” and assuming “co-opted.” Roberts and the two most recent Trump Justices will likely have a problem with that, if not Kavanaugh as well.
I don’t think we’re going to have to wait too long to find out, either.
The ever perspicacious Heather Cox Richardson on the MAGA effort to govern by xitter:
https://heathercoxrichardson.substack.com/p/february-9-2025
Is it possible Trump’s up close and personal experience with criminal law has caused doubt about a full blown attack on the judiciary by ignoring their orders? He knows he escaped serious prison time by the skin of the electoral college’s teeth.
Re Thomas Krause’s statement that he’s the only SGE “authorized” to have access to the payment systems programs is not the same as saying he’s the only one with access to the payment systems programs. Excepted from his description are, for example, USG emploiyees and third-party contractors.
“…AUSAs who are going to be unwilling to risk their bar license on frivolous legal arguments or lies…”. With all the other norm/institutional pillage going on, what is there to prevent oversight of lawyers via the bar system being subverted?
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Corruption, criminality and cruelty have become the currency of the Republican party.
Let them eat hate.
Forget about the price of eggs, MAGA masses, or anything else you said you wanted. We will give you a constant parade of Others–immigrants, DEI hires, and foreign aid workers–for you to jeer. When we run out of those? Then…let them eat fear. Because what we are is terrorists.
The ABA steps up:
https://www.americanbar.org/news/abanews/aba-news-archives/2025/02/aba-supports-the-rule-of-law/
Did the SCOTUS get this memo?
TNR has a great interview with Eisen, covering the fight, where it’s occurring, here:https://newrepublic.com/article/191336/transcript-musks-threats-darken-maga-rages-fresh-legal-losses
Snippet:
**Sargent: This ruling, the one in response to the state A.G.’s lawsuit, is the one that triggered MAGA right now. GOP Senator Mike Lee called it a judicial coup. Senator Tom Cotton called it “outrageous.” Matt Gaetz called for the judge to be impeached. Norm, what’s your reaction to their reaction?
Eisen: My reaction is that the Trump administration’s “flood the zone” strategy has met shock and awe for democracy and the rule of law. And the cutting edge is our order locking non–Treasury people, and even people who have no legal right to look at the data within Treasury, from doing so, and then the New York federal court order doubling down on that. It’s a sign that democracy and rule of law won the week, Greg.**
Eisen’s use of the war term that Trump introduced months ago, “shock and awe,” tells us that these folks are dead serious, and that here is where the battle is, and hopefully ends. Trump viscerally understands this an understands that he won’t win in court. One of the Project 2025 guys said “It’ll be bloodless if they (us) let it be, IOW, if we don’t resist. If they take it to the next, nullification level, then all bets are off because that will be them using live rounds.
edit last line:
“It’ll be bloodless if they (meaning us) let it be,” IOW, “if they don’t resist.” If they take it to the next, nullification level, then all bets are off because that will be the nuclear option.
Sorry, hadn’t seen that interview posted above by coral reef.
It’s coming fast and furious: Judge J McConnell just fired the first judicial enforcement shot:
https://storage.courtlistener.com/recap/gov.uscourts.rid.58912/gov.uscourts.rid.58912.96.0_2.pdf
Busy weekend for this Judge and the AGs. I think this makes the ruling tally 10/1, with the 1 likely being refiled (with ample coaching from Judge Bates) very soon. https://storage.courtlistener.com/recap/gov.uscourts.dcd.277150/gov.uscourts.dcd.277150.1.0.pdf
And DOJ is appealing it, even though it is not appealable, which, after the 1st Circuit boots it back, Trump will appeal to SCOTUS. We could be there in days.
Denial of cert is best served cold.
If that’s what happens, it will mean Kavanaugh and Coney Barrett have joined the libs along with Roberts in that decision. Will Trump draw a bead on all three of them (again, if that happens)?
Or more likely unanimous?
There are now 47 cases in the JS Litigation Tracker.
“DOJ is appealing it [an adverse decision], even though it is not appealable….”
Nice indicator of how Pam Bondi’s DoJ will adhere to the rule of law.
IANAL. What I don’t understand is what if all court decisions, right up to the supreme court, go against him and he continues all steam ahead ignoring the courts. What happens then? What if, and this is along shot, he is impeached and legally removed from office but refuses to budge. What law enforcement agency will physically drag him out to jail? The FBI under Kash Patel? I don’t know much. I have questions.
Trump’s psychopathology prevents him from accepting loss of any kind. If it’s forced on him, he strikes back (see J6), Among the many ironies that that would produce, the big one is that Vance would be the designated hitter, an “et to Brute?” moment to savor.