The State of the Union was 20 days ago. Since that day, Democrats have spent much of their time talking about other Democrats, talking about how Democrats are responding to the assault on the country, rather than talking about the assault itself and the people responsible.

In my opinion, focusing on Chuck Schumer — however justified your opinion about his fecklessness — is every bit as feckless as Chuck Schumer’s response to this crisis.

What has happened since the Continuing Resolution

There are a slew of reasons I think focusing on Chuck Schumer distracts from the matter at hand. One is that his view that the Continuing Resolution was less bad than a shutdown seems to have been a defensible good faith view (though that doesn’t excuse his head fake about it). It’s certainly possible that Democrats would have messaged effectively during a shutdown and used it to waken Americans of the risk Trump’s attacks on government pose (though as I said at the time, no one had laid the ground work for effective messaging, which makes me question how effective they might have been). But keeping the government open has allowed other positive developments.

Not shutting down the government at least temporarily affirmed the import of employment law. Last week, 25,000 government workers were reinstated pursuant to the efforts of two people whose lawsuits delayed their own firing long enough to issue judgments deeming the firings targeting probationary workers illegal, and then two judges (one, two) who ruled the firings to be unlawful (Trump has appealed the California one of these decisions to SCOTUS). Their reinstatement not only gave people paychecks until such time as Trump fires them properly — paychecks they would not have had under a shutdown — but it affirmed the import of following employment law.

Not shutting down affirmed the import of Congressional funding. On March 18, Radio Free Europe used the Continuing Resolution to substantiate its appropriations-related challenge to the shutdown.

28. On March 15, 2025, President Donald J. Trump signed into law Congress’s FullYear Continuing Appropriations and Extensions Act, 2025 (“Third Continuing Resolution”), which, like the previous continuing resolutions, appropriated “[s]uch amounts as may be necessary, at the level specified . . . under the authority and conditions provided in applicable appropriations Act for fiscal year 2024” until September 30, 2025. See H.R. 1968, 119th Cong. § 1101(a) (2025).

29. In sum, Congress appropriated approximately $23 million for RFE/RL in the First Continuing Resolution for October 1, 2024, to December 20, 2024. Congress appropriated approximately $41 million to RFE/RL in the Second Continuing Resolution for December 21, 2024, to March 14, 2025. Congress further appropriated approximately $77 million for RFE/RL in the Third Continuing Resolution for March 15, 2025, to September 30, 2025.

Obviously, the legal posture of this, and similar cases, would be different if Trump had not signed a funding bill.

Not shutting down kept Trump on the hook for any collapse of Social Security. After Judge Ellen Lipton Hollander enjoined DOGE from tampering in Social Security, the Acting Commissioner Leland Dudek attempted to pick a fight with the judge, falsely claiming her order would force him to shut down Social Security entirely.

She wrote two letters basically calling him a dumbass, stating that DOGE can access anonymized data and her order only covers the DOGE agenda, not normal operations.

And then the White House told him he was out of line.

Acting Social Security commissioner Leland Dudek threatened Thursday evening to bar Social Security Administration employees from accessing its computer systems in response to a judge’s order blocking the U.S. DOGE Service from accessing sensitive taxpayer data.

Less than 24 hours later — after the judge rejected his argument and the White House intervened — Dudek is saying he was “out of line.”

Dudek initially told news outlets, including in a Friday interview with The Washington Post, that the judge’s decision to bar sensitive data access to “DOGE affiliates” was overly broad and that to comply, he might have to block virtually all SSA employees from accessing the agency’s computer systems. But Judge Ellen Lipton Hollander of the U.S. District Court for the District of Maryland, who issued the order, said in a letter that Dudek’s assertions “were inaccurate.

[snip]

In response to Hollander’s letter, Dudek said in a statement emailed to reporters just after 5:30 p.m. that the court clarified its guidance and “therefore, I am not shutting down the agency.”

Dudek, in a follow-up interview Friday afternoon with The Post, thanked Hollander for the clarification, adding, “The president is committed to keeping the Social Security offices open to serve the public.” He then acknowledged that this was an about-face from his stance in an interview with The Post earlier in the day.

“[The White House] called me and let me know it’s important to reaffirm to the public that we’re open for business,” he said. “The White House did remind me that I was out of line and so did the judge. And I appreciate that.”

Social Security has always been deemed essential during shutdowns and it would have been here. But right now, the White House is sensitive enough about Social Security that they’re not even using an expansive injunction as an opportunity to fuck with it.

Meanwhile, for all the complaints about how shitty the Continuing Resolution is — for the cuts it made to Veterans health and education — I’ve seen almost no effort to hold Republicans accountable for it (just three Democrats — Jared Golden, Jean Shaheen, and Angus King voted to pass it). If it’s so bad, why aren’t Democrats hanging it around Republicans necks (aside from the fact that they’re too busy talking about Chuck Schumer, who voted against the bill itself)?

What needs to happen

Many of the discussions about Chuck Schumer make the same mistake he does: they assume the answer to Trump’s attack on democracy lies in winning midterms.

That’s a luxurious thought.

(In a really good JV Last column, he describes, “Winning in 2026 will not be sufficient to stop the authoritarian push; but it is necessary.”)

But it imagines we have more time to reverse Trump’s actions than we likely do, and it falsely assumes that the Democratic Party — rather than a trans-partisan or nonpartisan movement — is the entity that might reverse Trump’s attacks. Even if you could be sure of winning the House, without thinking more broadly you could only freeze things; without a whole lot more political work, for example, you couldn’t impeach and remove Trump.

To be clear, the quickest way to slow or reverse Trump’s actions is to convince Republicans — somewhere between four and nine in the House, and/or four in the Senate — to stall his efforts. That’s actually what Schumer says too, but he’s not talking about ways (much less doing anything obvious) to make that happen. Barring convincing Republicans to do something to protect the Constitution, it’ll require a mass uprising (or strike) to bring about change. Barring convincing a politically active majority of the country to cherish democracy, even ousting Trump would just bring us back to where we were quickly, with some other right winger exploiting the Republican thirst for authoritarianism.

Town halls

And one of the things that are already going on — outraged constituents at town halls — is one of the quickest ways to affect that, as I wrote about here. Even Chuck Grassley resorted to bullshit claims at a rowdy town hall recently. Organizers have even succeeded in using empty-podium town halls to focus on Republican failures, and more Democrats are showing at town halls in other districts.

Protests

I’ve said from the start that Elon Musk’s role in DOGE provides Democrats with an easy villain. That’s true not just because he keeps fucking up.

He, and his showrooms, make really easy targets for protests.

It also provides a way for Trump believers to begin to criticize his actions, as NYT recorded among Trump supporters who attended the NCAA wrestling match to which Trump brought Elon.

“Not a big fan of Elon,” said Blaize Cabell, a 32-year-old wrestling coach from Independence, Iowa, who nonetheless remains a big fan of the president. He said he viewed Mr. Musk’s career as a businessman as a series of failures and buyouts and said that the billionaire was “making a lot of callous cuts,” citing the Department of Agriculture. Earlier this month, the department fired thousands of experts and then scrambled to hire them back.

“I don’t even know what to think of him at this point,” David Berkovich, a 24-year-old wrestler and graduate school student from Brooklyn, said of Mr. Musk. “He’s just there all the time.”

“He’s going a little rampant — I think everyone can agree with that,” said Bobby Coll, a 24-year-old finance broker who lives in Manhattan’s West Village. He was there with his girlfriend, Julia Sirois, who said of Mr. Musk’s role in the administration, “It’s someone putting their hand in a cookie jar they don’t belong in.”

[snip]

“That’s a tough one for me,” Jarrod Scandle, a 44-year-old retired police officer from Shamokin, Pa., said of the president’s Tesla stunt. “I think it’s a little, I’m trying to think of the word —” he said as his voice trailed off. He concluded that he was really more of a Chevy or Ford kind of a guy.

Katy Travis, a 48-year-old wrestling mom from Columbia, Mo., said she thought Mr. Musk’s constant presence “looks ridiculous.” That he is as empowered as he is just makes the president “look weak,” she said, which is about the worst thing that can be said of someone at a Division I wrestling championship.

“It makes him look like he’s kissing ass to get money,” Ms. Travis said of the president.

As I’ve repeatedly noted, the Wisconsin Democratic Party is trying to brand Brad Schimel with Elon’s taint in their Supreme Court race on April 1.

Right wingers are attempting to push back on the protests against Musk by claiming that all protestors are connected to the three people DOJ charged with attacks on dealers. But there’s an easy way to make this backfire. After Pam Bondi tried to intimidate her the other day, Jasmine Crockett did what I think every Trump opponent should: point out that Trump freed a bunch of violent cop assailants.

Even Neera Tanden did this in a recent CNN appearance.

What is missing so far from the pushback on Elon is a successful pushback on his claims that he is finding fraud, a claim that Republicans are using to avoid more directly confronting him. But the problems Elon is causing keep piling up. Catherine Rampell recently catalogued all the ways DOGE is preventing government workers from doing their jobs.

At the IRS, employees spend Mondays queued up at shared computers to submit their DOGE-mandated “five things I did last week” emails. Meanwhile, taxpayer customer service calls go unanswered.

At the Bureau of Land Management, federal surveyors are no longer permitted to buy replacement equipment. So, when a shovel breaks at a field site, they can’t just drive to the nearest town or hardware store. Instead, work stops as employees track down one of the few managers nationwide authorized to file an official procurement form and order new parts.

At the Food and Drug Administration, leadership canceled the agency’s subscription to LexisNexis, an online reference tool that employees need to conduct regulatory research. Some workers might not have noticed this loss yet, however, because the agency’s incompetently planned return-to-office order this week left them too busy hunting for insufficient parking and toilet paper. (Multiple bathrooms have run out of bath tissue, employees report.)

Yesterday WaPo estimated that DOGE attacks on the IRS will create a $500 billion revenue hole at the IRS.

Treasury Department and IRS officials are predicting a decrease of more than 10 percent in tax receipts by the April 15 deadline compared with 2024, said the people, who spoke on the condition of anonymity to share nonpublic data. That would amount to more than $500 billion in lost federal revenue; the IRS collected $5.1 trillion last year. For context, the U.S. government spent $825 billion on the Defense Department in fiscal 2024.

Notably, this would have been invisible otherwise (as it was before Joe Biden hired extra IRS agents to track it down). But DOGE’s involvement makes it visible, something that can be hung on Trump.

And WaPo explained why Elon is having such a difficult time finding fraud at SSA. (Remember, I’ve got a list of all the DOGE debunkings here.)

Trump’s focus in the last two weeks on deportations, rather than firings, has also taken attention away from all the people fired, which has, in turn, shifted the focus away from the services Trump is taking away. Both need to be the centerpiece of messaging.

Messaging

There are topics that I think would be promising foci of organizing, or more organizing. because they’ll expand the network of organized people beyond traditional Democrats and may be more successful at pressuring Republicans.

There was a March for Science on March 7 — but finding ways to translate what science means into terms accessible to the public; the cancer cures and healthier food and business opportunities are a necessary step to get taxpayers to care about NIH and NSF cuts.

This morning I wondered why we haven’t seen more organizing around Trump’s attack on the Department of Education and sought to find a review of how Kentucky successfully defeated a voucher initiative last year. And I discovered that the group that succeeded in that has reformed to organize around that attack .

I have yet to see a concerted response to Trump’s attack on libraries and museums (though here are some organizing pages). Update: NYT has more.

There have been a few protests from Veterans in DC, at least one in February and another in March. VoteVets are also running ads in five swing districts.

I keep talking about how little farmers have pushed back, though I’ve seen individual pushback at town halls.

Finally, there needs to be an attempt to reclaim antisemitism from the white nationalists using it as a weapon against critics of Israel. There’s been a lot of Jewish pushback on the treatment of Mahmoud Khalil, for example. But not yet a full flipping of the perverse narrative Stephen Miller has adopted to justify shutting down universities.

Leaders are stepping up, all over the country. And rather than joining in those efforts, far too many people (at least some of whom who have a grift that depends on it) have made Chuck Schumer a bigger issue than Trump. Yes, people need to throw more anvils at Elon, and once he catches them, make sure he brings Trump down with him.

But they keep throwing anvils better suited for Elon at themselves.

If you’re like me, you’ll keep checking when reading this story about how Mike Waltz added journalist Jeffrey Goldberg to a Signal chat of top Trump officials planning war strikes on Yemen to see if it’s the Onion.

But it’s not.

It’s real.

Mike Waltz really did add a journalist to a chat (including Marco Rubio, who was a big player in the Butter Emails fun) planning war strikes on Yemen.

To make things easier to understand the risk of all this, I wanted to pull out what kinds of highly classified information these people shared with a journalist.

First, CIA Director John Ratcliffe sent the identify of a currently serving intelligence officer.

One more person responded: “John Ratcliffe” wrote at 5:24 p.m. with the name of a CIA official to be included in the group. I am not publishing that name, because that person is an active intelligence officer.

Then, Ratcliffe sent what sound like sources and methods.

Then, at 8:26 a.m., a message landed in my Signal app from the user “John Ratcliffe.” The message contained information that might be interpreted as related to actual and current intelligence operations.

Then, Whiskey Pete Hegseth (who says trans service members are not fit to serve, but thinks he himself is fit to run DOD), sent operational details of the strikes on Yemen about to start.

At 11:44 a.m., the account labeled “Pete Hegseth” posted in Signal a “TEAM UPDATE.” I will not quote from this update, or from certain other subsequent texts. The information contained in them, if they had been read by an adversary of the United States, could conceivably have been used to harm American military and intelligence personnel, particularly in the broader Middle East, Central Command’s area of responsibility. What I will say, in order to illustrate the shocking recklessness of this Signal conversation, is that the Hegseth post contained operational details of forthcoming strikes on Yemen, including information about targets, weapons the U.S. would be deploying, and attack sequencing.

Finally, Waltz sent what sound like the immediate results of the operation.

I went back to the Signal channel. At 1:48, “Michael Waltz” had provided the group an update. Again, I won’t quote from this text, except to note that he described the operation as an “amazing job.”

Miek Waltz is the one who added Goldberg to the chat. He also set at least some of them to auto delete.

Waltz set some of the messages in the Signal group to disappear after one week, and some after four. That raises questions about whether the officials may have violated federal records law: Text messages about official acts are considered records that should be preserved.

Finally, Goldberg notes that by definition, they could not have had their phones in a SCIF, so all were sharing information outside the security guidelines mandated for this kind of information.

Normally, cellphones are not permitted inside a SCIF, which suggests that as these officials were sharing information about an active military operation, they could have been moving around in public. Had they lost their phones, or had they been stolen, the potential risk to national security would have been severe.

I guess this is what we should expect from an Administration led by a guy who stored nuclear documents in his bathroom.

Not a single one of the people involved in this thread exhibits the least competence for the job.

Around 8AM on Friday, Deputy Attorney General Todd Blanche announced an investigation of a leak to the NYT pertaining to Venezuelan gang Tren de Aragua.

The Justice Department is opening a criminal investigation relating to the selective leak of inaccurate, but nevertheless classified, information from the Intelligence Community relating to Tren de Aragua (TDA). We will not tolerate politically motivated efforts by the Deep State to undercut President Trump’s agenda by leaking false information onto the pages of their allies at the New York Times. The Alien Enemies Proclamation is supported by fact, law, and common sense, which we will establish in court and then expel the TDA terrorists from this country.

While DHS and DOJ and FBI have made less formal announcements about leak investigations, most notably an evolving claim that leaks from the FBI or maybe DHS or who knows whether this is all a lazy excuse had tipped off alleged TdA members of imminent immigration operations, this was notable in its formality (which, admittedly, may stem exclusively from the fact that Blanche not a Xitter addict like Kristi Noem, Pam Bondi, and Kash Patel). The announcement was even more notable given Blanche’s claim that the leak was “inaccurate,” which would seem to undercut any claim it was classified.

This was, formally at least, maybe just the third public announcement that Blanche made as DAG (though he has already made a stink defending his client Donald Trump in court cases), with one of the others inviting people to claim they’ve been victims of DEI discrimination.

It appears, though no one has said explicitly, the investigation is into the leak claiming that the Intelligence Community disagrees with Trump about TdA’s ties to the Venezuelan government.

President Trump’s assertion that a gang is committing crimes in the United States at the direction of Venezuela’s government was critical to his invocation of a wartime law last week to summarily deport people whom officials suspected of belonging to that group.

But American intelligence agencies circulated findings last month that stand starkly at odds with Mr. Trump’s claims, according to officials familiar with the matter. The document, dated Feb. 26, summarized the shared judgment of the nation’s spy agencies that the gang was not controlled by the Venezuelan government.

The disclosure calls into question the credibility of Mr. Trump’s basis for invoking a rarely used wartime law, the Alien Enemies Act of 1798, to transfer a group of Venezuelans to a high-security prison in El Salvador last weekend, with no due process.

The intelligence community assessment concluded that the gang, Tren de Aragua, was not directed by Venezuela’s government or committing crimes in the United States on its orders, according to the officials, speaking on the condition of anonymity to discuss internal deliberations.

Analysts put that conclusion at a “moderate” confidence level, the officials said, because of a limited volume of available reporting about the gang. Most of the intelligence community, including the C.I.A. and the National Security Agency, agreed with that assessment.

Only one agency, the F.B.I., partly dissented. It maintained the gang has a connection to the administration of Venezuela’s authoritarian president, Nicolás Maduro, based on information the other agencies did not find credible.

The story was published on March 20, before the investigation announcement, but only published in the dead tree NYT after it.

If that’s correct, the investigation that Blanche rushed to formally announce implicates his own behavior.

Blanche’s announcement came the same day that he filed an insolent declaration before Judge James Boasberg, adopting the claim made by a regional ICE official in a declaration submitted one day earlier: The government is considering invoking State Secrets to withhold from Boasberg even the most basic details of deportation flights that brought Venezuelans to El Salvador after he ordered them to turn.

2. On March 20, 2025, the Government submitted a declaration from Robert L. Cerna II, which stated: “I understand that Cabinet Secretaries are currently actively considering whether to invoke the state secrets privilege over the other facts requested by the Court’s order. Doing so is a serious matter that requires careful consideration of national security and foreign relations, and it cannot properly be undertaken in just 24 hours.”

3. I attest to the accuracy of those statements based on personal knowledge of the events described by Mr. Cerna, including my direct involvement in ongoing Cabinet-level discussions regarding invocation of the state-secrets privilege.

DOJ wants to withhold those details even though some details of which were leaked to Fox News Deportation Propagandist Bill Melugin right away, other details of which are readily available on flight tracker websites.

Judge Boasberg’s order demanding such a cabinet-level declaration came before Blanche’s leak investigation announcement.

Which is to say NYT was working on this intelligence assessment story even as DOJ was stonewalling Boasberg about why it deported two or three planeloads of Venezuelans after he ordered DOJ not to.

Whether or not Trump’s DOJ invokes State Secrets Tuesday, there’s plenty of information in the public record — including the NYT story — that would undercut, but also explain, such an invocation.

CBS published a list of the Venezuelans who were deported — the kind of leak that elicited heavy pushback when they involved Gitmo under George Bush, and almost certainly had to come from some kind of internal documentation but was not obviously implicated in Blanche’s investigation announcement.

The plaintiffs filed declarations debunking the government’s claims that the men deported or targeted to be were criminals, much less members of TdA. There was plenty of other reporting on missing family members who seem to have been deported based on soccer tattoos.

NYT and WaPo both have stories suggesting the underlying reason this trade happened: Because El Salvador’s authoritarian President Nayib Bukele is anxious to get MS-13 members who could implicate him in terrorism out of US custody. Here’s WaPo’s (later) story:

Some say Bukele is trying to hide his government’s own involvement with the gangs.

More than two dozen high-ranking Salvadoran gang leaders have been charged with terrorism and other crimes in a Justice Department investigation that has lasted years. Several of them are jailed in the United States. One of the indictments details how senior members of Bukele’s government held secret negotiations with gang leaders after his 2019 election. The gang members wanted financial benefits, control of territory and better jail conditions, the court documents say. In exchange, they agreed to tamp down homicides in public areas and to pressure neighborhoods under their control to support Bukele’s party in midterm elections, according to the 2022 indictment.

Bukele’s government went so far as to free a top MS-13 leader, Elmer Canales Rivera, or “Crook,” from a Salvadoran prison, according to the documents — even though the U.S. government had asked for his extradition. (He was later captured in Mexico and sent to the U.S.)

Last weekend, the Trump administration sent back one of the MS-13 leaders named in the indictments, César Humberto López Larios, alias “Greñas,” along with the 238 Venezuelans and nearly two dozen other Salvadorans allegedly tied to gangs.

Some Salvadoran analysts believe Bukele wants the gang leaders back so they won’t testify about his government’s involvement with them — and potentially put him in legal trouble.

“If these returns [of Salvadoran gang members] continue, it takes away the possibility that the U.S. judicial system will open a case against Bukele for negotiations and agreements with terrorist groups,” said Juan Martínez d’Aubuisson, an anthropologist who has studied the gangs.

The possibility that this effort to outsource detention and torture to Bukele is part of a quid pro quo helping a fellow authoritarian to cover up his own criminal ties is not dissimilar from details about Saudi complicity in 9/11 that the Bush Administration spent years invoking State Secrets to cover up.

And then finally, in plain sight, on Friday Trump disclaimed that he personally had signed the Alien Enemies Act declaration, that someone used an autopen for his signature. If true (I certainly don’t rule out Stephen Miller autosigning half the stuff that comes out under Trump’s name), that would undermine the Article II claims the government is making.

In other words, even as the government claims to be contemplating invoking State Secrets (which would require declarations to Boasberg I’m not sure they’re willing to provide), the following details have come out:

• Names and details of the detainees, debunking the claims of TdA affiliation on which Trump based their deportation, making it clear that Trump rushed these deportations to avoid disclosing that TdA isn’t what he says it is
• Good reason to question the underlying quid pro quo with Bukele
• Trump’s claim that the AEA order was not backed by the Article II authority DOJ has spent a week claiming it is.
• The likely subject of the leak investigation: Claims from spooks that any intelligence to support this AEA effort is based on flimsy intelligence

This is the kind of fact set that has the potential to snowball.

Meanwhile, just two months into this Administration, it’s already investigating leaks about purportedly internal spats. Unrelated to Venezuela, there was the NYT leak disclosing Pete Hegseth was about to brief Elon Musk about DOD’s plans for war with China, in response to which Elon called for leak prosecutions.

The chief Pentagon spokesman, Sean Parnell, initially did not respond to a similar email seeking comment about why Mr. Musk was to receive a briefing on the China war plan. Soon after The Times published this article on Thursday evening, Mr. Parnell gave a short statement: “The Defense Department is excited to welcome Elon Musk to the Pentagon on Friday. He was invited by Secretary Hegseth and is just visiting.”

About an hour later, Mr. Parnell posted a message on his X account: “This is 100% Fake News. Just brazenly & maliciously wrong. Elon Musk is a patriot. We are proud to have him at the Pentagon.”

Defense Secretary Pete Hegseth also commented on X late on Thursday, saying: “This is NOT a meeting about ‘top secret China war plans.’ It’s an informal meeting about innovation, efficiencies & smarter production. Gonna be great!”

Roughly 30 minutes after that social media post, The Wall Street Journal confirmed that Mr. Musk had been scheduled to be briefed on the war planning for China.

In his own post on social media early Friday, Mr. Musk said he looked forward to “the prosecutions of those at the Pentagon who are leaking maliciously false information to NYT.”

The leak served a very important (and presumably, its intended) purpose: NYT subsequently reported that Trump had not known about the briefing.

Mr. Trump made clear he had been caught by surprise by The Times’s report, saying he called his White House chief of staff and Mr. Hegseth to ask about it; he said they said it was “ridiculous.” But he also said that Mr. Musk — who has extensive business in China — should not be made aware of such sensitive information. It was one of the first specific statements from the president about what he would consider a bridge too far for Mr. Musk, who has expansive potential conflicts of interest created by a portfolio as a part-time government staff member and adviser.

Yet CNN reported that DOD would conduct an investigation, using polygraphs, which the article explicitly suggests is a reference to this leak.

We’re used to these people doing suspect things to cover up Trump’s alleged crimes. But it took just days for Todd Blanche to involve himself personally in all this, even while siccing investigators on those who might debunk the legal claims he’s making in court. And the DOD leak suggests these are not just — as Blanche claimed in his investigation announcement — the Deep State undermining Trump.

These are, in part, people trying to prevent Trump from making bigger fuck-ups than he’s already making.

Update: Corrected date State Secrets declaration is due.

Update: I said the Todd Blanche announcement was 8AM, based off the time listed on the press release. But it was not sent out until hours later, after the status hearing.

Timeline

[docket]

March 14: Trump issues but does not publish AEA proclamation

March 15: Proclamation posted

March 15: Boasberg certifies class, issues TRO

March 15: Emergency hearing

March 15, 7:25: Boasberg order

March 17: NYT Bukele story

March 17: Boasberg orders briefing on post-order deportations by March 18 at noon

March 17, 5PM: Boasberg hearing

March 18: First Cerna declaration

March 18: Boasberg orders March 19 declarations on details of deportation

March 19: Boasberg partially grants request for extension

March 20, 12:11PM: Second Cerna declaration

March 20, 3:49PM: Boasberg orders a cabinet level declaration

March 20: WaPo Bukele story

March 20 (around 6PM?): NYT publishes intelligence assessment story

March 20, 8:18 PM: CBS publishes list of deported Venezuelans

March 21, AM, 8AM: Blanche announces the investigation

March 21, 12:18: Blanche submits a declaration

March 21, 2:30PM: Motion hearing

March 21: Trump disclaims signing AEA declaration

Yesterday, just ten minutes after the last career AUSA, Terry Henry, dropped off the Perkins Coie case (using a letter purportedly authored by Doug Dreier, who dropped off the case Tuesday), DOJ filed a motion to disqualify Beryl Howell from the case.

Fair proceedings free from any suggestion of impartiality are essential to the integrity of our country’s judiciary and the need to curtail ongoing improper encroachments of President Trump’s Executive Power playing out across the country. In this case, reasonable observers may well view this Court as insufficiently impartial to adjudicate the meritless challenges to President Trump’s efforts to implement the agenda that the American people elected him to carry out. In fact, this Court has repeatedly demonstrated partiality against and animus towards the President.

The motion is packed with allegations that don’t even make sense. Beryl Howell sinned by:

• Questioning Twitter’s motives for defying a lawful warrant.
• Upholding the gag order in the Twitter case for reasons other than what DOJ claims.
• Disagreeing that Trump’s pardon of an accused cop assailant corrected “a grave national injustice.”
• Finding that Trump had attempted to get Evan Corcoran to break the law for him.
• Correcting Chad Mizelle’s false claims about the Steele dossier by saying, “you cannot be saying that there was nobody involved in the 2016 Trump campaign that had any connection with any Russian; you can’t say that.”
• Noting that Trump lost a lawsuit against Perkins Coie.

The recusal motion says nothing about the fact that Howell oversaw the grand jury investigation of Michael Sussmann, permitting repeated subpoenas to law firms, including Perkins Coie. Beryl Howell treated Trump no better or worse than she did Sussmann.

Perhaps the craziest excuse given for demanding that Howell recuse, though, regurgitated an Elise Stefanik complaint that at a public appearance in 2023, Beryl Howell quoted Heather Cox Richardson about propaganda, without mentioning Trump at all.

This historian Heather Cox Richardson, whose book I’ve been reading . . . cautions in her book’s opening line . . . “America is at a crossroads teetering on the brink of authoritarianism” and she echoes this thought in her closing line, that we are at a time of testing and how it comes out . . . is in our own hands.

(This video was originally posted by one of Steve Bannon’s propagandists.)

In other words, DOJ’s political appointees, including Todd Blanche, are demanding that Beryl Howell recuse from this case because she warned about precisely the kinds of disinformation that DOJ spews in this court filing.

Blanche’s involvement is not just symbolic. This filing was authored by someone in the Deputy Attorney General’s office — Blanche’s office.

Blanche’s involvement matters for two reasons.

First, this is a ploy that Todd Blanche pulled before, back before taxpayers were on the hook to pay him to serve as defense attorney for Donald Trump. Back in September 2023, he moved to disqualify Tanya Chutkan in Trump’s January 6 case because she had already had to deal with multiple January 6 defendants who compared their own conduct to that of Trump (though the complaint would have stood for any DC judge).

President Donald J. Trump, through undersigned counsel, respectfully moves to recuse and disqualify the Honorable Tanya S. Chutkan pursuant to 28 U.S.C. § 455(a). Fairness and impartiality are the central tenets of our criminal justice system.

Both a defendant and the public are entitled to a full hearing, on all relevant issues, by a Court that has not prejudged the guilt of the defendant, and whose neutrality cannot be reasonably questioned.

Todd Blanche, when he’s trying to defend Trump’s abuse of power, is making a habit of impugning women judges.

The other reason Blanche’s personal involvement matters is that most of the things he complains about are his own gripes carried over from serving as Trump’s defense attorney. Evan Corcoran testified that Trump deceived him about the classified documents his client was hoarding. Twitter ultimately turned over Trump’s account information, which proved that Trump was holding the weapon — the Twitter account — that almost got Mike Pence murdered. The way that Trump’s false claims led thousands to disrupt the peaceful transfer of power remained at the core of the prosecution of Trump even after SCOTUS had their way with the case.

Central to Perkins Coie’s argument is that Trump’s punitive Executive Order targeting the law firm amounts to a mulligan, an attempt to win legal battles he already lost, including the prosecution of Sussmann.

I think the government admitted to you that this was punitive. That makes a big difference, too, because in the separation of powers analysis, one thing you will look at — we submitted to you — that what they have done is just a mulligan from the things that happened in the judicial system.

Sussmann was indicted and acquitted. President Trump, as a private citizen, sued the law firm; and he lost. The punitive portion, courts mete out punishment, not the Presidents; and courts adjudicate, not Presidents.

Now, Blanche has done the same himself, making his own losses as a defense attorney the business of the United States.

It does nothing but prove that he has a conflict, not that Beryl Howell does.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

I was going to comment on this Paul Krugman column and Dean Baker’s response eventually anyway. Both analyze Elon Musk’s false claims about Social Security and debunk his insistence that there could be that much fraud. Baker describes that requiring SSA recipients to use online portals rather than the phone would “reduce fraud by an amount equal to 0.007 percent of spending.” But both also assume that the reason Elon clings stubbornly to those claims after being disproven is about protecting his own ego.

My guess, instead, is that it’s an ego thing, that Social Security has become to Musk what Canada has become to Donald Trump. Both men at one point said something stupid, something that would have turned them into laughingstocks if there weren’t so much fear in the air. But both men have been unable to let go, doubling down in what amounts to an attempt to redeem their initial foolishness.

[snip]

Musk’s big blooper was his claim that millions of dead people are receiving Social Security checks. This claim probably reflected the failure of young Musk staffers — what Dudek called the “DOGE kids” — to understand how the SSA’s databases work, combined with a complete lack of common sense. I mean, if there really were huge numbers of dead people receiving Social Security payments, don’t you think someone else would have noticed?

In a normal political environment, getting something that big that wrong would have destroyed Musk’s credibility and led to his permanent exile from any role in setting policy. But this is America in 2025, so Trump amplified the already-refuted claim when addressing Congress, and Musk seems more powerful than ever.

Furthermore, Musk refuses to give up his Social Security smears, making the completely implausible claim that fraudulent use of Social Security numbers accounts for 10 percent of federal spending. And I’d argue that that the plan to effectively cut off many disabled Americans is best seen as part of a desperate effort to find or pretend to find Social Security fraud, retroactively justifying Musk’s big mistake.

As I said, I was going to point to what I view as a misapprehension of how Elon uses language anyway. In my opinion, Elon was not — Elon rarely does — making truth claims; he was making a utilitarian assertion about fraud that served as cover.

But then I read this 130-page opinion from Judge Ellen Lipton Hollander, broadly enjoining DOGE from wading through Social Security data and requiring it to return any data DOGE boys already took.

Her opinion concludes by describing that the privacy violations she enjoins — the stated purpose behind providing ten DOGE members access to data that SSA would normally withhold even from very seasoned experts — serve a “fishing expedition … in search of a fraud epidemic, based on little more than a suspicion.”

The American public may well applaud and support the Trump Administration’s mission to root out fraud, waste, and bloat from federal agencies, including SSA, to the extent it exists. But, by what means and methods?

The DOGE Team is essentially engaged in a fishing expedition at SSA, in search of a fraud epidemic, based on little more than suspicion. It has launched a search for the proverbial needle in the haystack, without any concrete knowledge that the needle is actually in the haystack.

To facilitate the expedition, SSA provided members of the SSA DOGE Team with unbridled access to the personal and private data of millions of Americans, including but not limited to Social Security numbers, medical records, mental health records, hospitalization records, drivers’ license numbers, bank and credit card information, tax information, income history, work history, birth and marriage certificates, and home and work addresses.

Yet, defendants, with so called experts on the DOGE Team, never identified or articulated even a single reason for which the DOGE Team needs unlimited access to SSA’s entire record systems, thereby exposing personal, confidential, sensitive, and private information that millions of Americans entrusted to their government. Indeed, the government has not even attempted to explain why a more tailored, measured, titrated approach is not suitable to the task. Instead, the government simply repeats its incantation of a need to modernize the system and uncover fraud. Its method of doing so is tantamount to hitting a fly with a sledgehammer.

But along the way, Hollander lays out reasons to suspect it may be something else.

It includes a 3-page section, “SSA in the Crosshairs,” showing how Trump and Musk kept making evolving claims of fraud at Social Security; it includes Howard Lutnick’s confession that this was the plan at least by October.

On February 19, 2025, Howard Lutnick, the Secretary of the Department of Commerce, stated on Fox News: “‘Back in October . . . I flew down to Texas, got Elon Musk [to set up DOGE], and here was our agreement: that Elon was gonna cut a trillion dollars of waste[,] fraud and abuse . . . . We have almost $4 trillion in entitlements, and no one’s ever looked at it before. You know Social Security is wrong, you know Medicaid and Medicare are wrong . . . .[]’”

Hollander describes the access that such claims justified, relying heavily on the — uncontested, Judge Hollander notes — claims of Tiffany Flick (one, two).

She also puts the declarations of two Social Security declarants (newly-installed CIO Michael Russo and career Deputy Commissioner for HR Florence Felix-Lawson) to lay out the kind of access the 10 DOGE boys have gotten.

Currently, defendants claim there are ten members of the DOGE Team working at SSA. Defendants concede that seven of the ten employees have and have had access to personally identifiable information contained in SSA data systems. ECF 36 at 7.

Specifically, Employee 1 is a software engineer, appointed as an expert, and a special government employee under 5 U.S.C. § 3109 and 5 C.F.R. Part 304. ECF 36-2, ¶ 5. His duties purportedly relate to improper payments and SSA’s Death Master File, or records maintained by SSA on deceased individuals. Id. Felix-Lawson states: “SSA is currently working with the Small Business Administration (SBA) to effectuate an interagency agreement for Employee 1 to be detailed temporarily to SBA.” Id. Although Employee 1’s background investigation is still pending, id. ¶ 15, Russo states that Employee 1 has access to PII from MBR, SSR, Numident, and Treasury payment files showing SSA payments. ECF 36-1, ¶ 7. In other words, Employee 1 has access to SSA records even though his detail agreement and background investigation are incomplete.

Employee 2 is a Senior Advisor ((Program Specialist AD-0301-00) and serves as the DOGE Team lead. ECF 36-2, ¶ 8. His interagency detailing agreement from NASA is not yet finalized and his background investigation is still pending. Id.; see also id. ¶ 15. Although Employee 2 has had no access to “any SSA programmatic data or systems,” he has accessed SSA personnel data provided to him by Human Resources. ECF 36-1 (Russo Decl.), ¶ 13. He is responsible for consulting on the SSA’s workforce plans, including but not limited to reorganization and hiring. Id. As with Employee 1, his access to PII was premature.

Employee 3 is a Schedule C Policy Advisor, detailed from the Department of Labor to SSA. ECF 36-2, ¶ 6. His duties relate to improper payments and SSA’s Death Master File. Id. His background investigation is complete. Id. ¶ 15. Like Employee 1, he has access to PII from MBR, SSR, Numident, and Treasury payment files showing SSA payments. ECF 36-1, ¶ 8. He also has access to the National Directory of New Hire Data, maintained on SSA’s network for Office of Child Support Services. Id. ¶ 15.

Employee 4 was appointed as an expert, special government employee. ECF 36-2, ¶ 11. His duties currently relate to improper payments and death data. Id. His background investigation is still pending. Id. ¶ 15. However, he has not yet been granted access to SSA data or PII or access to systems containing such information. ECF 36-1, ¶ 16.

Employee 5 is an engineer detailed from the United States DOGE Service to SSA. ECF 36-2, ¶ 7. He is subject to an Interagency Agreement with U.S. Digital Service (now U.S. DOGE Service), which authorizes his work to include, but does not limit work to, increasing efficiency and the modernization of SSA IT infrastructure and systems, detecting waste, fraud, and abuse. Id. His background investigation is complete. Id. ¶ 15. Like Employees 1 and 3, he has access to PII from MBR, SSR, Numident, and Treasury payment files showing SSA payments. ECF 36-1, ¶ 9. He has also apparently been granted access to “several other databases but never accessed the data in them.” Id.

Employee 6 was appointed as an expert, and is a special government employee. ECF 36- 2, ¶ 11. His duties currently relate to improper payments and death data. Id. His background investigation is still pending. Id. ¶ 15. But, he has not been granted access to SSA data or PII or access to systems containing such information. ECF 36-1, ¶ 16.

Employee 7 is described as a detailee from Department of Labor (“DOL”) to SSA, but the detailing agreement is not yet finalized. ECF 36-2, ¶ 11. His duties relate to improper payments. Id. And, despite the fact that his background investigation is still pending, id. ¶ 15, he was granted access to “SSA Systems.” ECF 36-1, ¶ 14. According to Russo, Employee 7 has so far only accessed Numident. He was apparently granted access because “his work involves analysis of improper payments relating to death records maintained in the Numident.” Id. However, “[a]ll other access initially granted has since been revoked pending review of further data access needs.” Id. 37 Like Employee 3, he also has access to the National Directory of New Hire Data, maintained on SSA’s network for Office of Child Support Services. Id. ¶ 15.

Employee 8 is an engineer, detailed from OPM to SSA, whose duties relate to improper payments and death data. ECF 36-2, ¶ 10. His background investigation is complete. Id. ¶ 15. And, like Employees 1, 3, and 5, he has access to PII from MBR, SSR, Numident, and Treasury payment files showing SSA payments. ECF 36-1, ¶ 12.

Employee 9 was appointed as an expert, and is a special government employee. ECF 36- 2, ¶ 11. His duties relate to improper payments and death data. Id. Although his background investigation is still pending, id. ¶ 15, Employee 9 has access to PII from MBR, SSR, Numident, and Treasury payment files showing SSA payments. ECF 36-1, ¶ 11. In other words, access to the records appears premature.

Employee 10 is a software engineer, detailed from the Office of the Administrator at the General Services Administration to SSA. ECF 36-2, ¶ 9. His duties include “supporting the leadership team with the assessment and enhancement of internal processes and operational procedures” by “focusing on identifying inefficiencies and areas for improvement and ensuring that the administrative and programmatic functions align with the best practices for effectiveness and accountability.” Id. His background investigation is complete. Id. ¶ 15. And, like Employees 1, 3, 5, 8, and 9, he has access to PII from MBR, SSR, Numident, and Treasury payment files showing SSA payments. ECF 36-1, ¶ 10.

36 Special Government Employees are exempt from some of the ethics rules that apply to most federal employees. See 18 U.S.C. §§ 203, 205, 207–209.

37 On March 5, 2025, the SSA “began onboarding” Employee 7, although the detail agreement from the DOL is pending. ECF 36-2, ¶ 12. On March 11, 2025, in the midst of the briefing for the Motion, Employee 7 “was granted access to SSA systems.” ECF 36-1, ¶ 14. But, by the time the defendants’ brief was filed on March 12, 2025 at 4:03 p.m., Employee 7’s access had been revoked, pending review of further data access needs. Id. [my emphasis]

These details show multiple things:

• Multiple DOGE boys are getting access to highly sensitive data before their background checks are completed.
• Multiple DOGE boys are detailed from or to other agencies (including SBA, NASA, DOL, OPM, GSA); while the issue of dissemination between agencies via such details is not before Hollander, it’s a key issue in other lawsuits.
• At least four of these DOGE boys are Special Government Employees who (Hollander notes) don’t have to comply with the same ethical requirements as normal government employees.
• In two cases, DOGE boys were granted access they either didn’t use or that subsequently got revoked, undermining claims of “need to know” at the base of the way Hollander applied the Privacy Act.

When Hollander pressed the government why the DOGE boys needed this access, they offered “circular statements” with “no explanation as to why or how the particular records correlated to the performance of job duties.”

For example, the Court asked counsel for the government: “[W]hat was the mission and what was the need? What was the purpose in providing access to all of this information?” ECF 45 at 23. The Court again pressed about why the DOGE Team would “need” the scope of information at issue here. Id. at 24, 38. And, toward the end of the hearing, the Court once again gave the government the opportunity to explain the “need for all of those records.” Id. at 84.

Besides cursory, circular statements about members of the DOGE Team in need of all SSA data because of their work to identify fraudulent or improper payments, counsel provided no explanation as to why or how the particular records correlated to the performance of job duties. See, e.g., id. at 21–22 (“The goal is to review . . . the Social Security Administration’s records to see if there are improper or fraudulent payments. Naturally if one is looking for improper or fraudulent payments, one looks at the data to see if any such payments are made.”); id. at 23 (“[If] one is looking for fraudulent or improper payments that may or may not be going out by the Social Security Administration, one would need to look at the records, the beneficiary data, the payment data in order to do an assessment of that and to recommend potential changes.”); id. at 24 (“I can tell you that they are looking for instances of improper or fraudulent payments and that it is natural that one would look at the data in that system to see if they’ve been substantiated . . . .”); id. at 39 (“These particular people are working at the agency in order to carry out the sort of broad policy prescription contained in the Executive Order. They are also looking at improper payments and potential waste or improper or fraudulent payments. . . .”); id. at 85 (“[I]f you wanted to decide whether or not [a claim for benefits] was improper or not, you would need to look at the records to see if the payment was properly made or if it was fraudulent.”)

Hollander relied on Flick’s declaration to contrast the access DOGE has with the anonymized approach SSA normally uses to isolate suspected fraud before looking more closely.

As discussed, defendants have not provided the Court with a reasonable explanation for why the DOGE Team needs access to the wide swath of data maintained in SSA systems in order to root out fraud and abuse. And, as detailed by Flick, SSA has practices in place for audits or other searches for alleged fraud or abuse. Instead, defendants disregarded protocols for proper hiring, onboarding, training, and access limitations, and, in a rushed fashion, provided access to a massive amount of sensitive, confidential data to members of the DOGE Team, without any articulated explanation for the need to do so.

Then there’s the point Hollander made twice. While DOGE was granting all this access to our private data, it was unwilling to disclose the names of the DOGE boys who had been granted access, even though the government had named DOGE boys at Treasury, Department of Education, and elsewhere.

15 As noted, defendants have not identified the names of the government employees who have been provided access to the SSA data at issue. In similar cases, however, the defendants have identified government employes by name. See, e.g., See Alliance for Retired Americans, 2025 WL 740401, at *4–6; American Federation of Teachers et al., 2025 WL 582063, at *2–3.

[snip]

Defendants clearly understand why guarding privacy, rather than waiting for harm to occur, is important. After all, that is precisely the reason why they have withheld even the names of the members of the SSA DOGE Team. But, defendants have not shown the same level of care with the far more sensitive, confidential data of millions of Americans who entrusted their government with their personal and private information. The trust appears to have been violated, without any articulated need. Plaintiffs are likely to succeed on a claim that the conduct at issue was unreasonable and capricious. Plaintiffs have therefore shown a likelihood of success on their arbitrary and capricious claim.

There may be a very specific reason why DOJ is hiding which DOGE boys are at Social Security, besides the visibility it would give on sharing between agencies: because, according to some reports, that’s where Marko Elez ended up, after he left Treasury.

It’d be one thing for Elez to “accidentally” get read-write access at Treasury. But if similar kinds of access surprises happened at Social Security, claims of surprise would ring hollow.

In response to this order, Leland Dudek (whose recorded admissions that Social Security fraud isn’t that bad, as well as his assertions that these directions are all coming from Trump, appear not to have made it into the court record) has threatened to shut down all of Social Security in response, claiming DOGE is everywhere, running everything.

Dudek may have ulterior motive to say that. After all, since he’s on the record admitting these claims of fraud are overinflated, he may be on the hook for providing access in search of fraud based on false pretenses, which (as Hollander noted in her opinion) is a crime.

The Act also establishes criminal penalties for willful violations of its requirements. See 5 U.S.C. § 552a(i). It is a federal crime for any agency officer or employee willfully to disclose a protected record “in any manner to any person or agency not entitled to receive it,” id. § 552a(i)(1), or to maintain a system of records “without meeting the notice requirements” provided in the Act, id. § 552a(i)(2). It is also a federal crime for any person to “request[ ] or obtain[ ] any record concerning an individual from an agency under false pretenses.” Id. § 552a(i)(3).

This is not about fraud. And SSA maybe the first place where the false claims used to leverage access to highly personal data come to a head.

In both her March 14 and March 19 declarations submitted in the CREW FOIA case [docket], purported DOGE Administrator Amy Gleason described that DOGE’s job was — in addition to the technology modernization function the original USDS was tasked with — to advance President Trump’s 18-month “DOGE agenda.”

19. As described in the USDS Order, USDS is charged with furthering President’s Trump DOGE agenda, by “modernizing Federal technology and software to maximize governmental efficiency and productivity.”

20. In furtherance of these efforts, the USDS Order directs the USDS Administrator to work with agency heads to “promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.”

21. In addition, the USDS Order charges the DOGE Service Temporary Organization with advancing President Trump’s 18 month “DOGE agenda,” as set forth in various Executive Orders. See ¶¶ 7, 24.

She describes the “DOGE agenda,” which she says stems from four Executive Orders and one Presidential Memorandum, this way:

24. The “DOGE agenda” includes the technology modernization efforts described in the USDS Order, as well as initiatives that are described in four separate Executive Orders and a presidential memorandum. These materials describe distinct—and limited—roles for USDS and agency heads and agency DOGE Teams. They include:

a. Executive Order 14,170, Reforming the Federal Hiring Process and Restoring Merit to Government Service (Jan. 20, 2025), which directs the USDS Administrator to consult with the Assistant to the President for Domestic Policy and the OMB Director on a federal hiring plan that focuses on hiring highly skilled Americans. The order charges the Assistant to the President for Domestic Policy with actually developing the plan and disseminating it to agency heads.

b. Presidential Memorandum, Hiring Freeze (Jan. 20, 2025), which instructs the USDS Administrator to consult with the OMB Director, who is responsible for submitting a “plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.” The USDS Administrator is also responsible for consulting with the OMB Director and the Treasury Secretary, who is responsible for determining when to lift the hiring freeze at the Internal Revenue Service.

c. Executive Order 14,210, Implementing the President’s “Department of Government Efficiency” Workforce Optimization (Feb. 11, 2025), which directs agency heads to reduce agency headcount and agency DOGE Team Leads to provide monthly reports to the USDS Administrator on agency hiring. The USDS Administrator is also directed to report to the President on agencies’ compliance with the order.

d. Executive Order 14,218, Ending Taxpayer Subsidization of Open Borders (Feb. 19, 2025), which requires the USDS Administrator to consult with the Assistant to the President for Domestic Policy and the OMB Director to identify sources of federal funding for illegal immigrants and collectively recommend agency actions to align spending with the purposes of the order and, where relevant, enhance eligibility verification systems.

e. Executive Order 14,219, Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative (Feb. 19, 2025), which requires agency heads, in consultation with their DOGE Teams Leads, to undertake deregulatory efforts.

f. Executive Order, 14,222, Implementing the President’s “Department of Government Efficiency” Cost Efficiency Initiative, (Feb. 26, 2025), which requires each agency head to make federal expenditures transparent and for DOGE Team Leads to report to the USDS Administrator on contracting and non-essential travel expenses.

25. Cumulatively, these orders and memorandum set forth the responsibilities assigned to USDS, the U.S. DOGE Service Temporary Organization, agency DOGE Teams, and agency DOGE Team Leads. As an entity created by Executive Order, USDS has no other independent sources of legal authority. [emphasis and links added]

There’s a lot that’s interesting about this — not least that she described the DOGE agenda consisted of four EOs but she cites five.

So much for government efficiency.

My guess is EO 14,218, which assigns DOGE the role of hunting down payments that go to undocumented people, was added as an afterthought. The EO does provide DOGE a role, but (unlike most of the others) does not address DOGE in the title.

What I’m particularly interested in, though, is that Gleason does not include EO 14,217, Commencing the Reduction of teh Federal Bureaucracy, the February 19 EO that ordered Institute for Peace, among other entities, to be shut down.

That’s not surprising. DOGE isn’t mentioned in the EO at all.

But that’s interesting because, according to USIP’s complaint, at a time when George Moose was still unquestionably President of the Institute for Peace, starting the day after the EO on February 20, DOGE representatives started nagging Moose about shutting down. First, Chris Young reached out. Then Moose met with DOGE representatives as President of USIP. Then Moose sent a letter to OMB, consistent with instructions in the EO. Then DOGE started conducting reconnaissance in advance of shutting USIP down.

39. On February 20, 2025, the day after the Executive Order was issued, Chris Young, a representative of the U.S. DOGE Service, contacted the Institute.

40. The Institute agreed to hold a virtual meeting with DOGE representatives on February 24, 2025. Ex. A, Declaration of George Moose; Ex. D, Declaration of George Foote.

41. In that February 24 meeting, the Institute president, Mr. Moose, and outside counsel for the Institute, George Foote, explained to DOGE representatives Cavanaugh, Burnham, and Altik that the Institute is an independent nonprofit corporation outside of the Executive branch. ; Ex. A, Declaration of George Moose; Ex. D, Declaration of George Foote.

42. On March 5, 2025, the Institute submitted a courtesy letter to OMB responding to the requests made in the Executive Order. The letter explained the Institute’s establishment by Congress and its status as an independent nonprofit that is not an Executive branch entity and reiterated the Institute’s willingness to maintain its longstanding cooperation with the Executive branch with regard to the foreign policy agenda of the President of the United States. Ex. D [sic], OMB Letter.

---

43. On or about March 8, 2025, Mr. Moose received word that DOGE was making inquiries into the status of the Institute’s security operations. These inquiries were intended to facilitate DOGE’s access to the Institute’s headquarters, just as DOGE had done with respect to numerous executive agencies. Ex. A, Declaration of George Moose.

44. On or about March 9, 2025, USIP outside counsel George Foote emailed Defendants Burnham, Altik, and Cavanaugh with information about the non-federal nature of the Institute’s security and the Institute’s ownership of its headquarters building. Mr. Foote again confirmed that the Institute is an independent nonprofit corporation and stated that unauthorized personnel would only be admitted with a valid warrant issued by a court. Ex. D., Declaration of George Foote. [emphasis, line, and links added]

It wasn’t until March 14 that the White House purported to fire all the board members so they could replace Moose.

46. On or about March 14, 2025, Trent Morse of the White House Presidential Personnel Office emailed certain members of the Board, including the Board Member Plaintiffs, claiming to inform them of their termination from the Board by President Trump. Those emails did not state any justification for the purported terminations. See Ex. D, Declaration of George Moose.

47. Shortly thereafter, on March 14, 2025, representatives from DOGE and Defendant Jackson appeared at USIP headquarters building requesting access. Because the Institute has administrative jurisdiction over the parcel of land on which its headquarters sits and the USIP building is owned by the Institute, those representatives were denied entry.

48. Later that same evening, Defendants Altik and Cavanaugh returned to the Institute’s headquarters accompanied by FBI Special Agents and presented Mr. Foote with a “resolution” signed by the three ex officio members of the Board purporting to remove Mr. Moose from his position as President of the Institute. Ex. F, Ex Officio Resolution. [emphasis and link added]

There’s nothing in the four — er, five — EOs that Gleason cites that authorizes DOGE to start shutting down agencies (and to the extent it calls for firing people at agencies, it puts agency heads in charge of that). And there’s nothing in the USIP- specific one that authorizes anyone outside the head of the affected entities — so, Moose, until March 14 if you believe he was lawfully fired — to do anything other than receive a report (as Russ Vought did on March 5) and discuss budgets with the head of the entity.

That means the actions DOGE took before Vought received the letter (marked with a line) — and probably the ones that happened at least until Trump claims to have replaced Moose — were not authorized under the scheme Gleason lays out.

She says that every DOGE team member at an agency reports to the agency head.

Every member of an agency’s DOGE Team is an employee of the agency or a detailee to the agency. The DOGE Team members – whether employees of the agency or detailed to the agency – thus report to the agency heads or their designees, not to me or anyone else at USDS.

So even if DOGE wants to claim that James Burnham and Jacob Altik and Nate Cavanaugh (all named defendants in the complaint) were reporting to a different agency — probably OMB, though ProPublica says they’re all lawyers locataed in the Executive Office of the Presidency — the EO shutting USIP down doesn’t even envision OMB to be involved before receiving that March 5 letter. After that, it only envisions OMB discussing budgets with the entity head. It would seem the things DOGE did before that were definitely unauthorized (and in any case not covered under the DOGE agenda), and most of the rest were too.

Judge Beryl Howell rejected USIP’s request for a Temporary Restraining Order yesterday in part because it has enough trappings of a federal entity to come under the recent DC Circuit Court opinion upholding Hampton Dellinger’s firing, and in part because the harms alleged in the complaint are contingent on the takeover being ruled unlawful. (Howell’s logic is quite similar to Richard Leon’s in the analogous US Africa Development Foundation lawsuit.)

Upon further consideration, the Institute may be deemed to sit outside of the executive branch, or the removal protections may be deemed appropriately enforceable within the Supreme Court’s jurisprudence, but plaintiffs did not demonstrate as much in this expedited posture. See generally, Pls.’ Mot. (not addressing Myers or Humphrey’s Executor).Plaintiffs also did not demonstrate irreparable harm because their alleged harm was dependent on their success on the merits. Plaintiffs cited as their irreparable harm their inability to carry out their statutory functions and the harm to the Institute based on defendants’ intent to reduce it to the “statutory minimums” and defendants’ alleged destruction of the Institute’s property. Compl. 1 ¶¶ 59-65. Those harms, however, are dependent on plaintiffs’ success on the merits. Plaintiffs’ counsel can only represent the Institute–and thus properly assert the harms of the Institute–to the extent that plaintiff Board members and former President of the Institute, George Moose, were wrongfully removed. Plaintiffs likewise only suffer harm in their official capacities–the capacities in which they pled, Compl. ¶¶ 7-11–if they must lawfully remain members of the Board.

This may have been an invitation from Howell for plaintiffs to craft their complaint better.

And I don’t understand why they didn’t include an Appointments Clause in their complaint. Because people who were presenting as DOGE took steps to start dismantling the Institute, in defiance of Congress’ apparent intent, while Moose remained in charge.

USIP is not the only instance where DOGE took action that appears not to be covered by these four — er, five — EOs. In DOGE’s assault on the US African Development Foundation (which Trump targeted under the same EO), some of the same characters started invading under false pretenses before its head, Ward Brehm, was allegedly replaced on February 24.

4. On February 21, Ethan Shaotran, Jacob Altik, and Nate Cavanaugh arrived at USADF. Shaotran and Cavanaugh introduced themselves as IT personnel from GSA. Altik stated that he was a lawyer from the White House Personnel Office. They explained that we needed to immediately sign a memorandum of understanding for their detail assignment.

5. Once the MOU was signed, Altik explained the true purpose of the meeting, which was to provide USADF leadership with DOGE’s interpretation of the “minimum presence and function” required by USADF’s statute. DOGE read the statute to mean: 1) only the USADF Board and President/CEO are statutorily required, 2) only one or two grants funded by private sector partnerships are required, and 3) all other personnel/employees therefore needed to be eliminated under the Executive Order.

6. Altik stated that his next step was to present a RIF plan (where all USADF staff would be fired) to the board for approval by Monday, February 24. Altik threatened that if the Board didn’t approve the plan, the Board would be dismissed. Both Mathieu Zahui and I tried to explain to Altik that the President’s Executive Order gave the agency 14 days to respond and that we intended to comply with the order.

7. Cavanaugh and Altik then demanded immediate access to USADF systems including financial records and payment and human resources systems, which include staff job descriptions, personnel files, salaries, and organizational structure.

8. Mathieu Zahui outlined the administrative process—which includes security clearances—required to access sensitive data and personally identifiable information from the Agency’s systems. He provided forms for the software engineers to complete to begin background checks.

9. Cavanaugh requested waivers on the clearance process from the USADF board. Altik demanded contact information for all board members and further stated that if the Board was unable to provide immediate clearance to access USADF systems, that he would issue a notice of dismissal to all board members the same day.

[snip]

12. That same day, February 21, after learning that the DOGE team had secured the memorandum of understanding under false pretenses—stating that they would modernize our computer systems but then attempting to shut down USADF— our General Counsel withdrew the MOU.

13. On February 24, Ward Brehm informed USADF that he had received an email from Trent Morse notifying Brehm that he had been dismissed as a board member of USADF. The email was very brief and did not specify any reasons for the dismissal.

There are other instances, though these two are notable because representatives of DOGE started dismantling two entities before they were decapitated, meaning they couldn’t have been reporting to the entities themselves.

Admittedly, Amy Gleason’s declarations are meant to serve the limited purpose of evading FOIA. As I’ve discussed, her declarations conflict with another document sworn by her claiming to be detailed to HHS. Judges are actively scoffing at these conflicts, so it’s not like we should trust her CREW declarations either.

But until they declare Gleason’s latest to be inoperative, they would seem to lock the government into a statutory arrangement in other cases.

One of the lawsuits in which it was recently disclosed that DOGE boy Marko Elez emailed information with Personally Identifiable Information to two people at GSA (which I also wrote about here) is one in which Public Citizen is representing AARP in a Privacy Act claim against Treasury. [docket]

The government provided it in that case amid a discovery dispute, mostly as a courtesy because they were filing it in New York. But it contributed to a request for more information about what the hell Marko Elez was up to.

On February 18, Colleen Kollar-Kotelly ordered the government to file any Administrative Record behind the decision to give DOGE access to Treasury. The government squawked about that order, but after plaintiffs noted that the real decision maker in this case was Treasury Secretary Scott Bessent, not the people who had submitted declarations, Judge Kollar-Kotelly ordered those submitted, which the government provided — as a 215 page exhibit — on March 10.

On March 14 — the same day Treasury disclosed Elez’ mailed files to GSA — they supplemented that record. Some of the new documents appear to include some of the details Treasury gathered as they tried to figure out what Elez had done with his access.

That includes this data, showing that when someone first tried to give Elez access to the Top Secret Treasury Mainframe, they equivocated about whether to give Elez read only (the message on January 30) or read-write (the message the next day); at the time he appears to have been granted interim Secret, not Top Secret, clearance.

The main exhibit in the Administrative Record includes a spreadsheet showing what access he was supposed to have as of February 1, reflecting the sandboxed access described in earlier filings. It doesn’t reflect this read-write access.

Plaintiffs are also interested in Elez’ access during a late January trip to Kansas City, which has never been addressed in the declarations in this case.

What plaintiffs didn’t ask about (though they do ask for backup) is the letter sent on February 5 asking Elez to please sign the rules that go along with the Fiscal Service laptop Elez used to access Treasury networks.

Those rules include the following:

• Use Fiscal Service data, equipment, and IT systems properly and follow laws, regulations, and policies governing the use of such resources (Base Line Security Requirements, (BLSRs), Treasury Information Technology Security Program (TD-P 85-01), the Treasury Security Manual (TD-P 15-71), and Fiscal Service Policies).
• Protect Fiscal Service data, equipment and IT systems from loss, theft, damage, and unauthorized use or disclosure. Secure mobile media (paper and digital) based on the sensitivity of the information contained.
• Use appropriate sensitivity markings on mobile media (paper and digital).
• Promptly report any known or suspected security breaches or threats, including lost, stolen, or improper/suspicious use of Fiscal Service data, equipment, IT systems, or facilities to the IT Service Desk at 304-480-7777.
• Do not attempt to circumvent any security or privacy controls.
• Logoff, lock, or secure workstation/laptop to prevent unauthorized access to Fiscal Service IT systems or services.
• Do not read, alter, insert, copy, or delete any Fiscal Service data except in accordance with assigned job responsibilities, guidance, policies, or regulations. The ability to access data does not equate to the authority to access data. In particular, Users must not browse or search Fiscal Service data except in the performance of authorized duties.
• Do not reveal any data processed or stored by Fiscal Service except as required by job responsibilities and within established procedures.
• Do not remotely access Fiscal Service IT systems unless authorized to do so, such as an approved telework agreement authorizing remote access over the bureau’s VPN software.
• Do not transport or use Fiscal Service data or equipment outside of the United States or US Territories without written approval from the CSO or CISO.
• Do not connect Fiscal Service equipment to or access a Fiscal Service IT system from a foreign network without written approval from the CSO or CISO.
• Do not install or use unauthorized software or cloud services on Fiscal Service equipment.
• Take reasonable precautions to prevent unauthorized individuals from viewing screen contents or printed documents.
• Do not open e-mail attachments, or click links, from unknown or suspicious sources.
• Be responsible for all activities associated with your assigned user IDs, passwords, access tokens, identification badges, Personal Identity Verification (PIV) cards, or other official identification device or method used to gain access to Fiscal Service data, equipment, IT systems, or facilities.
• Protect passwords and other access credentials from improper disclosure. Do not share passwords with anyone else or use another person’s password or other access credential such as, but not limited to, someone else’s PIV card.
• Use only equipment and software provided by Fiscal Service or that has been approved for use by Fiscal Service’s CIO or designee to conduct Fiscal Service business.
• Provide non-work contact information to the bureau to facilitate emergency communications.
• Comply with Fiscal Service social media policy, including restrictions on publishing Fiscal Service information to social media and public websites. [my emphasis]

One of these rules, about not revealing data processed by Fiscal Service, would seem to apply to his sharing of information with GSA.

There’s no evidence Elez ever did sign those rules. Instead, he quit — and, without evidence, the entire world has assumed he quit because he was revealed to have made racist comments on social media.

It’s not yet clear what happened; perhaps it’ll become more clear if plaintiffs get discovery. But by all appearances, on Scott Bessent’s authority, someone at least considered giving a guy only cleared to the Secret level Read/Write access to Treasury’s Top Secret Mainframe, without first making sure he had signed a list of rules about altering or copying data.

And then he left.

Update: I’ve tweaked this reflecting the comment below that the Mainframe may be called Top Secret, without actually being classified Top Secret.

Update: Judge Kollar-Kotelly did grant more limited discovery. That includes most, but not all, details plaintiffs wanted about Elez’ email:

9. With respect to the email sent by Marko Elez referred to in paragraph 12 of the declaration of David Ambrose, ECF 48-2:

a. identify each addressee, including any cc’s or bcc’s.

b. state the date on which the email was sent.

c. identify each individual, if any, who authorized or directed Mr. Elez to send the email.

d. identify the Bureau Systems from which the Personal Information contained in the email or the attached spreadsheet was obtained.

[removed]

f. describe the nature of the information that was transmitted, including whether the information relates to the USAID files that Mr. Elez copied, as noted in paragraph 18 of Joseph Gioeli’s declaration, ECF 24-2.

I want to elaborate on the shenanigans pertaining to purported DOGE Administrator Amy Gleason here. (Thanks to LOLGOP for helping me make a video to help explain it.)

For some time, I’ve been talking about the way that DOGE, because it is so bureaucratically incompetent and because it is led by someone easy to villainize, actually provides regime opponents with an auspicious tool we otherwise wouldn’t have had if Trump had implemented his Project 2025 agenda more slowly via Russ Vought’s expert work.

If done competently, existing Article II authority and SCOTUS’ enthusiasm to expand it may well have provided a way to do everything they’re currently doing with complete legal sanction. But they chose not to do it competently, which has provided some means to at least slow things down and possibly to get SCOTUS to overturn this.

To be sure, the damage Elon Musk is doing on the front end is catastrophic. Elon is destroying lives and competencies with his chainsaw.

But because of DOGE’s incompetence, it creates legal leverage that I’m fairly confident Vought could have managed to avoid.

Agent Elon Musk

It has to do with Elon’s agency.

There have been a number of stories on how Elon came to choose USDS as a vehicle for his project — whatever purpose that project has. NPR did an early story on the background of the US Digital Service. Wired did a story on what that takeover looked like from inside. Wired did a more comprehensive piece this week.

There were several important bureaucratic reasons to use USDS as a vehicle for DOGE. By repurposing an already-existing entity, Trump avoided disclosure requirements under Federal Advisory Committee Act; this served to defeat the already-written lawsuits filed the first week of the Administration. And because USDS was a White House agency, it might have protected DOGE from other kinds of transparency, notably FOIA. And keeping it in the White House hypothetically made DOGE an advisory entity firmly under Article II power, not subject to other legal challenges.

It was a brilliant bureaucratic theory.

And then Elon and Trump and Karoline Leavitt kept opening their big mouths, making boastful claims about Elon’s own agency — double entendre intended — in the destruction that undermined the entire bureaucratic logic. For example, Elon’s claim to have put USAID through the wood chipper makes virtually every court filing.

By claiming credit for destroying free-standing agencies, Elon has undermined the entire premise of using USDS as a vehicle, because it has boasted that Elon has more power than USDS is supposed to have. As a result, Trump had to attempt to retcon the reporting structure of DOGE, in an attempt to sustain the bureaucratic benefits of using USDS as a vehicle.

In recent weeks, the intersection of several different lawsuits and several different legal theories opened a significant chink in the entire bureaucratic game.

It has to do with Elon’s agency. If DOGE is an agency and Elon heads it, then many of the bureaucratic benefits arising from using USDS as a vehicle collapse. Plaintiffs will get visibility into DOGE. And they’re likely to make Appointments Clause complaints that SCOTUS is generally amenable to.

OMB accepts a FOIA

One early mistake DOGE made was to accept a FOIA from CREW and grant it expedited processing, only to try to renege on that stance weeks later.

[O]n January 24, 2025, CREW submitted an expedited FOIA request to OMB (“Second OMB Request”) “seeking records related to changes to the operations of the U.S. Digital Service, organizational charts, financial disclosures, and other information relevant to the newly-formed USDS.” Id. ¶ 90; Mot. for PI, Ex. C (copy of Second OMB Request). The second request similarly focused on the time period beginning November 6, 2024, but also requested some records dating back until January 2014. Id. On the same day, CREW contacted the OMB FOIA Requester Service Center to ask how to submit a FOIA request directly to USDS and was directed to submit that request through OMB, too. Mot. for PI, Ex. D at 1 n.1. Accordingly, CREW also submitted an expedited FOIA request directly to USDS (“USDS Request”), which, along with the just-listed information, sought “[a]ll communications between USDS personnel and personnel of any federal agency outside of the Executive Office of the President.” Compl. ¶ 90; Mot. for PI, Ex. D. On January 24, OMB acknowledged receipt of both requests. Id. ¶ 92.

[snip]

Although OMB initially agreed to process the USDS request and granted it expedited treatment, it has since done an about face. After CREW sued, the government suggested that OMB had inadvertently accepted the USDS request. See Opp’n at 8–9 n.2. It further indicated that USDS had been reorganized as a “free-standing component of EOP that reports to the White House Chief of Staff.” Id. “As a result,” the government posits, “USDS is not subject to FOIA.” Id. The government confirmed at oral argument on CREW’s motion that neither OMB nor USDS itself intend to process the USDS request on that ground. Rough Tr. 3:23–4:4.

Normally, the White House, but not OMB, is immune from FOIA. OMB is not immune because it is a separate agency. Because OMB accepted this FOIA it provided CREW a way, within the FOIA context, to argue that DOGE was an agency.

That fuckup is what led Judge Christopher Cooper to grant a limited expedited FOIA response to CREW on March 10.

The narrowed USDS request seeks, in each case from January 20, 2025, to the present: “all memoranda, directives, or policies regarding changes to the operations of USDS”; organizational charts for USDS; ethics pledges, waivers and financial disclosures of USDS personnel; “all communications with the office of the Administrator of the USDS regarding actual or potential changes to USDS operations”; and “all communications between USDS personnel and personnel of any federal agency outside of the Executive Office of the President regarding that agency’s staffing levels (including any effort to reduce staffing), treatment of probationary employees, contract and grant administration, access to agency information technology systems, or the authority of USDS in relation to that agency.”

In granting that limited response, Cooper noted that DOGE never disputed claims that Elon was exercising significant authority.

The Court recognizes that much, though by no means all, of the evidence supporting its preliminary conclusion that USDS is wielding substantial independent authority derives from media reports. Yet, the Court finds it meaningful that in its briefing and at oral argument, USDS has not contested any of the factual allegations suggesting its substantial independent authority. To be sure, USDS claims it declined to make this argument because CREW’s “motion fails for multiple independent reasons.”

That led DOGE to ask for reconsideration of the FOIA order, which CREW calls “a do-over,” attempting to make the arguments about agency that — Cooper noted explicitly — it had declined to make in its first response. Along with that motion, DOGE submitted a declaration from Amy Gleason on March 14 making claims about DOGE’s structure that directly conflict with claims, including sworn claims made by Gleason, made about DOGE elsewhere.

1. My name is Amy Gleason. The following is based on my personal knowledge or information provided to me in the course of performing my duties at the United States DOGE Service (USDS).

2. I currently serve as the Acting Administrator of USDS. I joined USDS on December 30, 2024.

3. I am a full-time, government employee at USDS.

4. In my role at USDS, I oversee all of USDS’s employees and detailees to USDS from other agencies. 5. I report to the White House Chief of Staff, Susie Wiles.

6. Elon Musk does not work at USDS. I do not report to him, and he does not report to me. To my knowledge, he is a Senior Advisor to the White House.

Now, the government strongly implies that it wants Judge Cooper to rule quickly on its motion for summary judgment so it can appeal right away. Maybe that will all happen.

But it doesn’t put Gleason’s materially conflict declarations back in the box.

Elon’s conflicts become an issue

Meanwhile, as soon as DOGE came after the Department of Labor, a bunch of labor unions sued under what would normally be a weak privacy challenge, but to which both their initial and amended filings included the concern that DOGE generally and Elon specifically could access data of interest to Elon’s business or his companies, including data about labor complaints targeting his businesses.

9. DOGE will also have access to Department of Labor records concerning investigations of Mr. Musk’s businesses, as well as records containing the sensitive trade secrets of his business competitors, which are held by the Department of Labor and Consumer Financial Protection Bureau. No other business owner on the planet has access to this kind of information on his competitors, and for good reason.

[snip]

30. Defendant U.S. DOGE Service (“USDS”) is a federal entity situated within the Executive Office of the President in Washington, D.C. Upon information and belief, its work is directed by Elon Musk, who is reportedly serving in the Trump-Vance Administration as a Special Government Employee (“SGE”). Mr. Musk is the wealthiest person in the world, with an estimated net worth of over $400 billion. Concurrent with his tenure in government, Mr. Musk has numerous large business concerns, many of which have substantial ties to the federal government and U.S. politics. They include SpaceX, a space technology company and extensive federal government contractor; Tesla Motors, an electric vehicle company; Neuralink, a neurotechnology startup seeking to embed computer hardware into the human brain; the Boring Company, a tunnel construction company; and X, formerly known as Twitter, a large social media platform.

[snip]

75. The Occupational Safety and Health Administration (“OSHA”) within the Department is responsible for enforcing safety standards at American companies. OSHA has investigated Mr. Musk’s space technology company, SpaceX, over multiple safety incidents, and has fined SpaceX in connection with one worker’s death and seven other serious safety incidents.33

76. OSHA has also investigated and issued fines to Tesla for unsafe working conditions in its factories. 34

77. OSHA also has open investigations into the Boring Company, and has issued it multiple fines for serious citations, according to OSHA’s website.35

78. On information and belief, the Department of Labor also currently has open investigations into one or more competitors of Mr. Musk’s companies.

79. Mr. Musk would ordinarily be unable to access non-public information regarding those investigations. See 18 U.S.C. § 1832(a) (Trade Secrets Act); 5 U.S.C. § 552(b)(4) (FOIA exemption for trade secrets); 5 U.S.C. § 552(b)(7) (FOIA exemption for records or information compiled for law enforcement purposes).

80. In light of the blanket instruction to provide DOGE employees with “anything they want,” Mr. Musk or his associates will be able to access that information simply by asking DOL employees for it.

[snip]

156. There is no public indication that Mr. Musk or DOGE personnel on leave from Mr. Musk’s corporate interests will be recused from access to any of this data, which includes “hundreds of complaints about [Mr. Musk’s] electric car company Tesla.”91

The judge in this case, John Bates, twice rejected their bid for a Temporary Restraining Order on standing grounds. But in plaintiffs’ second bid for one, they argued that DOGE members were prohibited from accessing agency records at Department of Labor, HHS, and CFPB under terms permitted by the Privacy Act because they didn’t work for an agency.

With respect to inter-agency personnel agreements, Congress provided legal authority for exactly that purpose through the Economy Act of 1932, which regulates whether and when federal employees can be temporarily detailed to new agencies. The Economy Act provides that, under certain circumstances, “[t]he head of an agency or major organizational unit within an agency may place an order with a major organizational unit within the same agency or another agency for goods or services[.]” 31 U.S.C. § 1535(a) (emphasis added). For purposes of Title 15 of the U.S. Code, “‘agency’ means a department, agency, or instrumentality of the United States Government.” Id. § 101. Because DOGE is not an “agency or a major organizational unit within an agency” for purposes of the Economy Act, it cannot lawfully enter into agreements to detail its personnel to lawfully established federal agencies.

Bates still denied their TRO. But in his second order rejecting their privacy claims, he relied on defendants’ representations about whether they were an agency or not (they argued they were an instrumentality). They only successfully defeated a TRO request because, Bates opined, they were an agency.

Under those definitions, USDS—which is located with the Executive Office of the President, see First DOGE E.O. § 3(a)—appears to be an agency. In each context mentioned above, an entity within the Executive Office of the President is an agency if it “wield[s] substantial authority independently of the President.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297, 315 (D.D.C. 2017). If instead it serves solely “to advise and assist the President,” it is not an agency. Alexander v. FBI, 456 F. App’x 1, 1–2 (D.C. Cir. 2011) (quoting Kissinger v. Reporters Comm., 445 U.S. 136, 156 (1980)). As plaintiffs themselves insist, USDS appears to do much more than advise and assist the President. USDS’s mission, per the Executive Order, is to “implement” the President’s modernization agenda, not simply to help him form it. See First DOGE E.O. § 1. While the record isn’t crystal clear as to these allegations, it is apparent that USDS is coordinating teams across multiple agencies with the goal of reworking and reconfiguring agency data, technology, and spending. See supra n.3 (describing the duties of the DOGE team members at DOL, HHS, and CFPB; Exec. Order No. 14,210, 90 Fed. Reg. 9669 (Feb. 11, 2025) § 3 (“Second DOGE E.O.”) (ordering that agency heads collaborate with DOGE teams on new appointment hires and prohibiting agencies from “fill[ing] any vacancies for career appointments that the DOGE Team Lead assesses should not be filled”). That is not the stuff of mere advice and assistance. See, e.g., Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995).

Curiously, defendants do not make this argument. They shy away from other, similar statutory definitions of agencies, notwithstanding USDS’s strong claim to agency status under them. This appears to come from a desire to escape the obligations that accompany agencyhood— subjection to FOIA, the Privacy Act, the APA, and the like—while reaping only its benefits. Indeed, at the renewed TRO hearing, defendants’ counsel insisted that USDS is not an agency under any of those three statutes (not to mention two Executive Orders scaffolding USDS, see First DOGE E.O. § 2(a); Second DOGE E.O. § 2(a)), but is under the Economy Act. Defendants insist that the inclusion of “instrumentalities” in the Economy Act definition renders “agency” there broader than its sibling definitions of “agency.” And so USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.

Plaintiffs leaned into this language when they requested discovery.

Plaintiffs argued that DOGE is not an “agency” for the purposes of the Economy Act, that it exists purely to advise the President and does not possess and organic statutory authority that would permit it to enter into Economy Act agreements with Defendant agencies. ECF No. 29-1 at 34-37. Defendants argue that DOGE is not an “agency,” but does constitute an “instrumentality” that may permissibly enter into Economy Act agreements. See Transcript of TRO Motion Hearing, ECF No. 41 at 32. This Court concluded that, based on the information before the Court about DOGE’s functional activities, DOGE most resembles an agency, but expressly noted the limitations of the current record and briefing to date.

[snip]

The facts about how DOGE is structured are arguably become less clear with time. On February 17, 2025, the White House stated for the first time that Elon Musk is not an employee of DOGE nor is he the U.S. DOGE Service Administrator.

[snip]

Discovery about the functional structure of DOGE–including who has decision-making authority over it–is directly relevant to being able to evaluate its status as an agency or instrumentality to whom Plaintiffs’ sensitive data may be disclosed without causing injury.

That’s part of what led Judge Bates to grant discovery. Another was that defendants’ own claims conflicted with the record.

Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given.

[snip]

It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.

And that’s what led DOGE to take a rash step: To make the woman they had just declared to be their DOGE Administrator an HHS employee, effective March 4, even while they disclaiming being an agency in the CREW suit, and asking Amy Gleason to submit a sworn declaration claiming to be a full time DOGE employee ten days later.

Amy Gleason is on the hook for sworn claims to be an employee of HHS and, at the same time, to be DOGE’s full-time Administrator.

Elon skipped his appointment with Congress

All that this shell game over agency status has gotten plaintiffs so far — if the government can’t reverse these decisions on appeal — is some visibility about what DOGE really is, including visibility about what it’s doing with union members’ data.

But it’s all boxing the government in on what does matter: The at-least three different challenges to DOGE that argue Elon’s appointment violates the Appointments Clause, something that could — and did yesterday, in the Does 1-26 v. Elon lawsuit — require reversing all the actions the government has taken under Elon’s watch.

Does 1-26

New Mexico

Japanse American Citizens

It’s that lawsuit, Does 1-26 v Musk, in which Judge Theodore Chuang made big news yesterday by enjoining Elon and requiring the government to start reversing the effects of what DOGE did. But the lawsuit, and so his order, only apply to Elon and DOGE. Plus, to the extent that Elon can get permission from Marco Rubio or Pete Marocco to do the very same things they’ve already done, they have two weeks under the order to do that.

It’s an important ruling, but the most likely effect it may have, in practice, is to reveal how much DOGE broke when it was dismantling USAID, which may soon become evident to people getting their digital access restored.

In making his ruling, Chuang relied exclusively on the public record, all the instances of Trump hailing Elon for his DOGE work and Elon’s own claims about woodchippers.

In another of these cases, though, one by Democratic Attorneys General (captioned as New Mexico), Judge Tanya Chutkan granted plaintiffs expedited discovery on March 12, meaning barring a successful appeal, the AGs will get more visibility on DOGE by April 2 or thereabouts.

Still, like the Does 1-26 case, the AGs lawsuit only targets Elon (and Trump). It won’t have the ability of rolling back everything DOGE did. It might make DOGE itself illegal barring Congressional action, but it cannot reverse everything.

The third suit, which also names the agencies themselves, might do that.

Update: Judge Bates has denied the government’s motion to reconsider his discovery order and has instead extended it as plaintiffs requested. The order … shows some impatience with DOGE’s changing claims.

Presumption of irregularity

None of that is going to happen quickly.

But what is happening quickly is that the conflicting claims before different judges are making it clear that nothing this Administration says can be trusted.

CREW

[docket]

Judge Christopher Cooper

This is a simple FOIA lawsuit.

AFL-CIO

[docket]

Judge John Bates

This is primarily a privacy lawsuit, strengthen by unions’ need to be able to make confidential reports to Department of Labor.

Does 1-26 v. Musk

[docket]

Judge Theodore Chuang

This Appointments Clause challenge only sues Musk, not other government agencies.

New Mexico v. Musk

[docket]

Judge Tanya Chutkan

This Appointments Clause challenge sues Musk and Trump, but not agencies.

Japanese American Citizens

[docket]

Judge Tanya Chutkan

This is the most advanced Appointments Clause challenge, but may be consolidated with New Mexico. It not only sues Musk, but also a long list of agencies.

Back on February 27, longtime squish Judge John Bates granted plaintiffs in an AFL-CIO lawsuit about DOGE data sharing discovery, the first such grant of discovery in DOGE cases. I was … surprised.

On March 11, defendant agencies asked Bates to reconsider based on their attempt to retcon the facts to eliminate the entire point of discovery (see this post for the many ways Trump keeps attempting to retcon things). In effect, they tried to eliminate the injury of having DOGE personnel working across multiple agencies, giving them access to multiple kinds of data, by hiring people at the affected agencies (HHS, CFPB and Department of Labor) into those agencies.

The factual basis for this change in status is set forth in the declarations attached to this motion, as well as the documents Defendants have moved to lodge under seal with the Court. In total, three individuals—two at HHS, and one at CFPB—were previously working at these agencies through a detail from USDS to the agency; all are now direct employees of the agency, in addition to being employees of USDS. See Rice Decl. ¶¶ 8–10; Martinez Decl. ¶4. Although it initially intended to bring on USDS employees as detailees, DOL stopped this process shortly after this lawsuit was filed, and did not subsequently onboard any USDS employees as detailees.3 Kryger Decl. ¶ 6. Today, all employees working to implement the DOGE E.O. at the Agency Defendants are now direct employees of the agencies at which they work, or detailees from agencies that no one disputes fall within the definition of “agency” under the Economy Act.

Defendants subsequently provided Plaintiffs with additional information about the employment arrangements of former USDS detailees. Specifically, on Friday, March 7, Defendants provided Plaintiffs with the SF-61s, or oath of office, for each former USDS detailee, which establishes their relationship as a direct employee of the relevant agency. On Monday, March 10, 2025, Defendants provided unredacted versions of these agreements to Plaintiffs so they could evaluate Defendants’ request to lodge the materials under seal.

Plaintiffs’ March 13 response is a dizzying description, drawing on declarations submitted in a bunch of other lawsuits, of all the ways DOGE is sharing across agencies, and all the past claims about DOGE that have fallen to pieces.

As part of the latter argument, plaintiffs invoked the way Trump retconned Amy Gleason to be DOGE administrator.

In this case and others, the government has refused to provide consistent, accurate, and plausible recitations of basic facts related to DOGE’s operations.

In this case, for example, Defendants identified five DOGE employees at Defendant Agencies in declarations prior to TRO hearings. Ramada Decl., ECF No. 16-1 ¶ 5 (identifying three DOGE detailees to DOL); Rice Decl., ECF No. 31-2 ¶ 5 (identifying one DOGE detailee to HHS); Martinez Decl., ECF No. 31-3 ¶ 5 (identifying one DOGE detailee to CFPB). Shortly thereafter, Defendants characterized the number of DOGE employees at the agencies as “untold.” ECF No. 45 at 16.

Now, Defendants claim that only two DOGE employees work at HHS, but, as described above, that claim is inconsistent with the agency’s own public database of employees. And, as described above, Mr. Martinez’s declaration concerning the processes governing DOGE access at CFPB conflicts with sworn testimony from current and former CFPB employees.

Indeed, Mr. Martinez publicly testified earlier this week that he has previously made sworn representations in publicly-filed declarations that he now knows are incorrect. According to Mr. Martinez, these false representations occurred because he did not actually “know about the mission side of the agency” and simply conveyed in his declarations “what they [agency leadership] told [him].” Exhibit G at 184-88.

In another case, the government represented that a DOGE employee would have only “read-only” access to sensitive systems at the Department of Treasury, only to correct themselves later that the employee had in fact previously been granted more expansive access to those systems. Compare Defs. Memo of Law in Support of Emergency Mot. To Dissolve, Clarify, or Modify Ex Parte Temporary Restraining Order, State of N.Y. v. U.S. Dep’t of Treas., No. 25 Civ. 01144, ECF No. 12 at 6 n. 2 (S.D.N.Y. Feb. 9, 2025) (“Marco Elez [] had ‘read only’ access to . . . BFS payment systems.”), and Declaration of Joseph Gioeli III, id., ECF No. 34 at ¶ 20 (the Department discovered on February 6 that “Mr. Elez’s database access . . . had mistakenly been configured with read/write permissions instead of read-only”)

With regards to the leadership and structure of DOGE, the government’s positions continue to be ephemeral. As detailed in the February 18 status report in this case, ECF No. 42 at 2-3, and in Plaintiffs’ February 26 Reply Brief in Support of Expedited Discovery, ECF No. 46 at 9 n. 10, the executive branch has taken multiple conflicting positions on the structure of DOGE’s leadership. The executive for the first time stated that Mr. Musk is not the USDS Administrator in a February 17 court filing, then on February 18 refused to identify the USDS Administrator, then on February 19 President Trump said Mr. Musk is in charge of DOGE, then on February 25 for the first time identified Amy Gleason as the USDS Administrator, while also saying that Mr. Musk is “overseeing DOGE.” See ECF No. 42 at 2-3, ECF No. 46 at 9 n.10. During a February 28 court hearing in another matter, a DOJ attorney was reportedly asked who the USDS Administrator was prior to Ms. Gleason, and responded that he had asked that question and “was not able to get [an] answer.” 9 On March 4, President Trump repeated during a joint address to Congress that Mr. Musk heads DOGE.10

In sum, Defendants’ new proffered employment arrangements do not diminish the need in this case for discovery into whether and how DOGE is accessing sensitive data systems at Defendant Agencies or how DOGE is actually structured and operates with respect to DOGE employees working at Defendant Agencies. [my emphasis]

Meanwhile, back on March 11, DOJ asked to submit the attachments to several declarations, including this one from HHS referencing anonymous employees affected by the revamped employment structure under seal. (Remember, DOJ had given these to plaintiffs; they were trying to keep them hidden from us.)

6. As stated in my prior declaration, at least one USDS employee was detailed to HHS in furtherance of the EO in early February 2025 (“HHS detailee”).

7. In addition, I have since learned that another USDS employee was detailed to the Centers for Medicare and Medicaid Services (“CMS”) in furtherance of the EO in the same February 2025 time frame (“CMS detailee”). This detailee was previously detailed from USDS to CMS from 2018 to March 2020 to work on CMS health data interoperability and modernizing technology.

8. Both of these individuals were converted to direct hires of HHS on March 4, 2025. True and correct copies of their SF-61 Appointment Affidavits are attached to this declaration as Attachment A. Both individuals also continue to be employees of USDS.

Yesterday, Judge Bates was like, “uh, no, you can’t seal these declarations; the DOGE affiliations of these people are already widely public.”

The information the SF-61s reveal that may lead to harassment—the three affiants’ identities and their work with DOGE—has already been widely publicized, undercutting the argument for sealing the documents. See In re L.A. Comms. LLC, 628 F. Supp. 3d 55, 66, 69 (D.D.C. 2022); Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 149 (D.D.C. 2010). Defendants contend that reporting does not negate the affiants’ privacy interests because “[d]efendants have not publicly acknowledged the employment relationships at issue.” Mot. ¶ 10. However, defendants have publicly acknowledged all three affiants’ associations with DOGE,2 have publicly acknowledged Brad Smith’s work at HHS, see U.S. Dep’t of HHS, HHS Employee Details, https://directory.psc.gov/hhsdir/eeKey.asp?Key=66006&Format=Table (last accessed March 13, 2025) [https://perma.cc/JM7S-VSMT], and have put on the record in another case in this District emails Jordan Wick sent and received from a CFPB email address, see Email from Mark Paoletta to Jafnar Gueve (Feb. 11, 2025), NTEU v. Vought, Civ. A. No. 25-381 (ABJ), ECF No. 56-1 at 6; Email from Jordan Wick to Russell Vought (Feb. 20, 2025), NTEU, ECF No. 66-2 at 5. Finally, reports and records show the three affiants are not just DOGE employees, but senior DOGE members. See, e.g., supra, n.2; HHS Employee Details, supra.

That’s when Judge Bates revealed the identity of one of them was … Amy Gleason, the retconned DOGE Administrator.

In fact, the Trump Administration has acknowledged that Amy Gleason is the Acting Administrator of USDS. See Citizens for Resp. & Ethics in Wa. v. U.S. Doge Serv., Civ. A. No. 25-511 (CRC), 2025 WL 752367, at *2 (D.D.C. Mar. 10, 2025)

That’s how this filing became public.

Amy Gleason, purportedly in charge of all of DOGE since February 25, was instead snuck into HHS on March 4 as an employee to cover for her broad access to the PII of American citizens.

Update: As Kyle Cheney noted in his story on this, last week Amy Gleason filed an affidavit in a CREW lawsuit suing to FOIA DOGE.  She claimed to be full-time Administrator at DOGE and made no mention of her HHS appointment. She swore these claims were correct.

3. I am a full-time, government employee at USDS.

4. In my role at USDS, I oversee all of USDS’s employees and detailees to USDS from other agencies.

5. I report to the White House Chief of Staff, Susie Wiles.

These kinds of conflicting sworn statements are what happen when you keep retconning what you claim to be going on in an attempt to dodge one after another valid legal theory against your law-breaking. These kinds of conflicting sworn statements provide legal purchase where, had someone competent like Russ Voght done this slowly and deliberately from the start, there would have been none.