Wow. Judge Dale Ho came up with a remarkable approach to deal with DOJ’s request to dismiss the Eric Adams prosecution.
First, he canceled the trial for now, taking away one of DOJ’s major claimed problems with the case against Eric Adams. He also said that Adams doesn’t have to show up at any hearings for now.
Then, he asked Paul Clement — as opposed to the several people who offered to serve as an amicus to help him consider the issue — to address the following questions.
1) The legal standard for leave to dismiss an indictment under Rule 48(a);
2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself;
3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion;
4) Under what circumstances, if leave is granted, dismissal should be with or without prejudice;
5) If leave were denied under Rule 48(a), what practical consequences would follow, including whether dismissal would nevertheless be appropriate or necessary under other rules or legal principles (e.g., for “unnecessary delay” under Rule 48(b) or under speedy trial principles, see United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 453 F. Supp. 462, 463 (S.D.N.Y. 1978)); and
6) Any other issues the parties or amicus consider relevant to the Court’s resolution of the Government’s motion.
Clement was George W Bush’s Solicitor General and has argued a slew of cases before the Supreme Court. Like we assume Danielle Sassoon and Hagan Scotten will someday be, he’s a right wing legal superstar; Clement was, like Sassoon, an Antonin Scalia clerk.
As several people have noted, the language Ho used to justify appointing an amicus is language that invoked Clement’s appointment in another important case, by name.
Accordingly, to assist with its decision-making via an adversarial process, the Court exercises its inherent authority to appoint Paul Clement of Clement & Murphy PLLC as amicus curiae to present arguments on the Government’s Motion to Dismiss. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 209 (2020) (“Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae. He has ably discharged his responsibilities.”)
So one of Joe Biden’s most liberal appointees hired one of the most prominent conservative lawyers in the country.
https://www.emptywheel.net/wp-content/uploads/2025/02/Paul_D._Clement.jpg600450emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-21 13:18:042025-02-21 13:25:18Dale Ho Brings in the Conservative Cavalry
As we wait for Judge Dale Ho to rule on whether he’ll dismiss the Eric Adams case, I want to return to a point I made here, because it may change the import of an exchange that occurred in the hearing on Wednesday.
Ho doesn’t just preside over Eric Adams’ case. He also presides over the case of Erden Arkan, the construction company owner implicated in organizing straw donors supporting Adams. Arkan already pled guilty to conspiring to arrange those straw donors on January 10.
And as of a few weeks ago, Ho was meant to preside over the case of Mohamed Bahi, a former top Adams aide implicated in the straw donor conspiracy.
On Thursday, February 6, prosecutors — including the now-resigned Hagan Scotten, Derek Wikstrom (whom Emil Bove put on leave along with Scotten last week), as well as Celia Cohen and Andrew Rohrbach (who along with the others, withdrew from the Adams case last Friday and whose leave status is unclear) — filed a notice of a related case.
In addition to Adams and Arkan, both before Ho, it listed Mohamed Bahi as a related case at that point pending before Judge Analisa Torres.
The Government respectfully submits this letter regarding the three above-referenced cases, which arise out of related conduct and concern co-conspirators.
[snip]
On January 10, 2025, the Government filed Information 25 Cr. 13 (DEH), charging defendant Erden Arkan in one count with conspiracy to violate the laws of the United States, in violation of 18 U.S.C. § 371. The charged object of that conspiracy is committing wire fraud through the collection of campaign contributions made under the name of someone other than the true contributor, and the subsequent request for public funds based on the misrepresentation that those contributions originated from the named contributor. Arkan was initially assigned to Judge Vargas, but was transferred to Judge Ho pursuant to the District’s related case procedures. Also on January 10, 2025, Arkan pled guilty before Judge Ho to the sole count of the Information. The conduct for which Arkan pled guilty forms a part of the conduct charged in Counts One and Two of the Adams Indictment, and Arkan is identified in the Adams Indictment as “Businessman-5.” (See United States v. Adams, 24 Cr. 556 (DEH), Dkt. 1 ¶ 30).
On February 6, 2025, the Government filed a notice of intent to file an information charging Mohamed Bahi in a single count with conspiracy to violate the laws of the United States, in violation of 18 U.S.C. § 371. The charged object of that conspiracy, as in Arkan, is committing wire fraud through the collection of campaign contributions made under the name of someone other than the true contributor, and the subsequent request for public funds based on the misrepresentation that those contributions originated from the named contributor. The conduct charged in the Bahi information forms part of the conduct charged in Counts One and Two of the Adams Indictment, and Bahi is identified in the Adams Indictment as “Adams Employee-1.” (See United States v. Adams, 24 Cr. 556 (DEH), Dkt. 1 ¶ 28.a). In connection with that case, Bahi has indicated that he intends to plead guilty to the sole count of the Information against him. [links added]
This notice appears in the Adams docket and the Arkan one. But as far as I can tell, there’s no (unsealed) Bahi criminal docket; if there were or is one, the notice of related case should have landed on the docket before Judge Ho within a day — that is, perhaps the same day that Emil Bove ordered Danielle Sassoon to kill the prosecution against Adams.
When Mohamed Bahi, a former top Adams aide, was first charged in October, he was charged with two counts of obstruction, not the wire fraud conspiracy described to be the subject of the Information to which he would plead guilty. The FBI affidavit supporting Bahi’s arrest relies on the proffered testimony of Arkan and employees who made straw donations to Adams.
Each of these five witnesses was interviewed by the FBI on or about June 13, 2024, and, in sum and substance, denied having been involved in straw donations. Each of these witnesses was subsequently interviewed, pursuant to proffer agreements and while represented by counsel, and it is these counseled, proffer-protected interviews that are described in this paragraph. Each of these witnesses agreed to speak with law enforcement in the hopes of receiving leniency in connection with this investigation. In the course of proffering with the Government, the Businessman admitted his involvement in straw donations to Official-1’s mayoral campaigns and in an unrelated fraud offense. The information these witnesses have provided has proven reliable and is corroborated by other evidence. [my emphasis]
Which means Arkan is likely the one who told the FBI about conversations he had with Bahi regarding lying to the FBI, conversations in which Bahi told Arkan he had spoken to Adams before and after Arkan and his employees lied to the FBI on June 13, 2024.
c. During the private meeting between BAHI and the Businessman on or about June 13, 2024, BAHI told the Businessman that he had just spoken with Official-1. BAHI then asked the Businessman to describe his interactions with the FBI. After the Businessman told BAHI that the Businessman had denied having funded straw donations to Official-1 when questioned by the FBI, BAHI advised the Businessman that if he continued to tell that lie to federal investigators the Businessman would be ok.
d. BAHI then met with the Businessman and the four Donors. BAHI asked each of them to describe their interactions with the FBI. BAHI took photographs of the grand jury subpoenas that had been served on the Donors and the Businessman.
e. During the meeting between BAHI, the Businessman, and the four Donors, BAHI encouraged the Donors to lie to federal investigators by denying that they had made straw donations to the 2021 Official-1 Campaign, and remarked that because the Donors’ contributions to the 2021 Official-1 Campaign had been reimbursed in cash, the FBI would be unable to prove that the reimbursements had occurred.
f. On or about June 14, 2024, BAHI again met with the Businessman. During that meeting, BAHI indicated to the Businessman, in substance and in part, that BAHI had met with Official-1, and that Official-1 believed that the Businessman would not cooperate with law enforcement. [my emphasis]
But the notice of related case doesn’t say Bahi was pleading to those obstruction charges. Rather, he was pleading to the straw donor conspiracy, just like Arkan.
On February 7, Wikstrom (whom Emil Bove put on leave to prevent him from doing any more “targeting” of Eric Adams), got a third continuance in the Bahi case, until March 10.
3. The defendant, defense counsel, and the Government have entered into a written plea agreement to resolve this case, and are in the process of having the case assigned to a district judge and scheduling a waiver-of-indictment and change-of-plea hearing. Such a hearing has not yet been scheduled, and the parties do not anticipate being able to hold it before the February 7, 2025 deadline under the Speedy Trial Act.
4. Therefore, the Government is requesting a 30-day continuance until March 10, 2025, to finalize the foregoing discussions and reach a disposition of this matter. Defense counsel Derek Adams, Esq. has consented to this request. This application has been authorized by Assistant United States Attorney Jane Kim, Deputy Chief of the Criminal Division.
That means several things.
First, the continuances, plus the swap of the straw donor conspiracy for the obstruction charges, suggests that Bahi has likely also been chatty about what went down, and perhaps not just in those conservations with Mayor Adams before and after he allegedly convinced Arkan to lie to the FBI.
That’s almost certainly what Danielle Sassoon was talking about when she described a planned obstruction indictment to Pam Bondi.
As you know, our office is prepared to seek a superseding indictment from a new grand jury under my leadership. We have proposed a superseding indictment that would add an obstruction conspiracy count based on evidence that Adams destroyed and instructed others to destroy evidence and provide false information to the FBI, and that would add further factual allegations regarding his participation in a fraudulent straw donor scheme.
But it also means that if the Information is not filed by March 10 (or another continuance obtained from whatever judge is presiding over the case), it would disappear of its own accord on Speedy Trial grounds.
Who knows what the status of all that is? Who knows what happened between February 7, when Wikstrom said they were going to file an Information and asked to move Bahi’s case before Judge Ho, and February 13, when Bove put him on leave?
The fact that there’s an all-but indicted conspiracy charge against Adams, possibly already before Ho, with a statute of limitations that extends to 2029, changes the import of several things said in Wednesday’s hearing (as captured here by Anna Bower). When Ho asked Bove if there were limits on what DOJ could charge going forward, Ho likely knew that meant that DOJ would have something over Adams for almost the entire balance of Trump’s [presumed] term.
Judge Ho wonders aloud whether there are “any limits” to the Department’s ability to re-indict Adams later on. In reply, Bove mentions some “standard” limitations on the Justice Department’s discretion. For example, he says, there could be time limits related to the statute of limitations or the Speedy Trial Act. The Justice Department may or may not revisit the case at another time, he adds, but there aren’t any plans for that at this time.
Judge Ho follows up by asking whether the Justice Department is contemplating any additional “investigative” steps.
No, Bove replies.
And then, seemingly right after that exchange, Ho turned back to Adams and asked about this, Adams — under oath — told Judge Ho that he had not committed a crime. After which Ho reminded Adams that he can consult his lawyer before he asserts, under oath, that he didn’t commit a crime.
Turning back to Adams, the judge asks whether he understands all of this.
“I have not committed a crime. I don’t see them bringing it back. I’m not afraid of that,” the mayor replies.
At this, Judge Ho reminds Adams that he can consult with his lawyer at any point during this hearing.
“I appreciate that because I failed my law class,” Adams quips in response.
If I were Adams, I’d be stewing over claiming to Judge Ho that, “I have not committed a crime,” just before Ho advised him he should consult with his lawyers before he says anything stupid, under oath, for fear of committing a new crime before a judge who has more leeway to police things that go on in his courtroom.
And the fact that a mostly-charged obstruction charge against Adams is or was supposed to be before Dale Ho changes a number of factors in his consideration of the public interest. Bahi’s charges may expire within days (unless that Information did get filed). But Arkan will get sentenced over the summer regardless of what happens — and if prosecutors aren’t involved, he won’t get the benefit of any cooperation. That’s not fair to him.
At the very least, Ho has a very good sense of what would be hanging over Adams’ head for the next three-plus years, a threat that — just as the indictment itself does — might impact his ability to govern.
Dale Ho’s docket makes it pretty clear that Emil Bove intervened when he did to prevent SDNY from describing the full extent of Mayor Adams alleged efforts to obstruct an investigation into his actions.
But it’s not clear how well Bove succeeded.
Update: Wow. One of Joe Biden’s most liberal judges appointed conservative Republican Paul Clement to serve as his amicus.
ORDER as to Eric Adams. On February 19, 2025, the Court held a conference on the Government’s Motion to Dismiss the Indictment in this matter under Rule 48(a), see ECF No. 122. In light of the Government’s motion and the representations of the parties during the conference, it is clear that trial in this matter will not go forward on April 21. Accordingly, trial is ADJOURNED SINE DINE. The Order setting a pretrial schedule, ECF No. 87, is hereby vacated, and all deadlines set forth therein are also ADJOURNED SINE DIE….[*** See this Order ***]… Accordingly, to assist with its decision-making via an adversarial process, the Court exercises its inherent authority to appoint Paul Clement of Clement & Murphy PLLC as amicus curiae to present arguments on the Government’s Motion to Dismiss. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 209 (2020) (“Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae. He has ably discharged his responsibilities.”). The Court expresses its gratitude to Mr. Clement for his service and will provide Mr. Clement a copy of this Order and the transcript from the February 19 conference. It is hereby ORDERED that the parties and amicus curiae shall address: 1) The legal standard for leave to dismiss an indictment under Rule 48(a); 2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself; 3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion; 4) Under what circumstances, if leave is granted, dismissal should be with or without prejudice; 5) If leave were denied under Rule 48(a), what practical consequences would follow, including whether dismissal would nevertheless be appropriate or necessary under other rules or legal principles (e.g., for “unnecessary delay” under Rule 48(b) or under speedy trial principles, see United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 453 F. Supp. 462, 463 (S.D.N.Y. 1978)); and 6) Any other issues the parties or amicus consider relevant to the Court’s resolution of the Government’s motion. Briefs shall be due no later than March 7, 2025. If necessary, the Court will hold oral argument at 2:00 p.m. on March 14, 2025. The Court notes that it has considered the parties’ views with respect to the appointment of amicus and concludes that an appointment is appropriate here to assist the court’s decision-making. That is particularly so in light of the public importance of this case, which calls for careful deliberation. The Court reiterates that it understands the importance of prompt resolution of the pending motion and will endeavor to rule expeditiously after briefing (and, if necessary, oral argument) is complete. The adjournment of trial and all related deadlines alleviates any prejudice resulting from a short delay. Moreover, in light of the concerns raised by the parties regarding the Mayor’s responsibilities and the burden of continued court appearances, the Court notes that while Mayor Adams has a right to appear at any future proceedings, he need not do so given the current procedural posture. See Rule 43(b)(3) (“A defendant need not be present” where “[t]he proceeding involves only a conference or hearing on a question of law”). In other words, absent an order of this Court stating otherwise, Mayor Adams need not appear and need not file a notice voluntarily waiving his appearance at future proceedings, if any, on the Government’s Motion to Dismiss. Finally, in light of Mr. Clement’s appointment as amicus, the Court does not believe there is a need for additional amicus participation at this stage. Nevertheless, to ensure that the parties and appointed amicus have an opportunity to respond to arguments made by other amici, if any, any motion for leave to participate as amicus must be filed, with the proposed amicus brief, by February 28, 2025. The Court will not consider any motions for amicus participation after that date. Any opposition to such a motion by a party shall be filed by March 5, 2025. SO ORDERED. (Signed by Judge Dale E. Ho on 2/21/2025) (bw) (Entered: 02/21/2025)
is simply a reflection of the ignorance of the DOGE boys Musk has infiltrated into government, the shoddiness of the AI tools they’re using, or simply a disinterest in giving a fuck, because once Elon claims this website says something, the right wing will follow along like sheep.
There’s still a lot of reporting to be done, but thus far outlets have shown that DOGE:
Took items that added up to $16B and claimed it represented $55B of savings
Claimed an $8M savings over a multi-year contract represented $8B total savings
Claimed credit for things that happened under Joe Biden, such as lease cancelations and Jimmy Carter’s death
Included contracts that haven’t been canceled and ignored costs that such cancelations will necessitate
As I said, thus far, this NPR piece captures how badly the DOGE boys are misunderstanding basic things about federal contracting — and also seeking immediate cuts rather than the kind of gradual reorganization that results in savings over time.
That might support a conclusion that these people are just epically incompetent. Except as DOGE gets caught in its errors, something else is happening: it is attempting to cover up its work.
The DOGE website initially included a screenshot from the federal contracting database showing that the contract’s value was $8 million, even as the DOGE site listed $8 billion in savings. On Tuesday night, around the time this article was published, DOGE removed the screenshot that showed the mismatch, but continued to claim $8 billion in savings. It added a link to the original, incorrect version of the listing showing an $8 billion value.
By Wednesday morning, DOGE had updated its list to show $8 million in savings, though it did not acknowledge the error or explain how it might affect its calculation of total money saved, which remained unchanged. A loss of $8 billion in savings would represent nearly 15 percent of the total savings claimed by DOGE.
A screenshot of the DOGE website on Tuesday. The image showing the $8 million value of the contract was later removed.Credit…The New York Times
Even the $8 million is an upper bound on the amount saved by canceling the contract. Since $2.5 million had already been spent on the contract, according to data on USAspending.gov, that suggests that canceling it saved $5.5 million at most.
This thread, from a pseudonymous person on Xitter whose findings have been corroborated and picked up by others, notes several other attempts to cover up errors:
DOGE stopped triple-counting one line item
DOGE was claiming credit for the 80% of an IT contract that had already been spent
But having identified systematic problems (which NPR also did), DOGE not only didn’t make those fixes systematically, but it continues to claim it has identified $55B of savings.
This is a government website.
At some point, the continued claim of savings based on systematic errors, the continued claim of $55B in savings, amounts to fraud. Deliberate deception in service of justifying DOGE.
DOGE has found fraud. The fraud it is engaged in in plain sight on its success page.
The DOGE fraud is coming from inside the house.
That, plus some of the court filings submitted in lawsuits, has led me to suspect something else is going on. It’s not, as the very good NPR piece suggests, that Elon’s DOGE boys don’t know what the fuck they’re looking at, though I have no doubt they don’t (I’m also not sure anyone has a basis to assess their coding; Edward “Big Balls” Coristine’s former colleagues mocked his skills when the learned he had joined DOGE).
“There’s no doubt that these young people [Musk] has working for him are very intelligent coders, genius coders, but they’re limited,” retired senior contracting officer Christopher Byrne said, referring to DOGE team members who have apparently been identifying cuts across government agencies. “They don’t understand the processes, they don’t understand how things work, they don’t understand contracts, they don’t understand grants,” Byrne said.
Rather, I think it stems from the fact that Trump (and Project 2025, in the guise of DOGE) are using an existing entity — the United States Digital Service, an entity set up by Barack Obama — to do something entirely different.
Trump first repurposed USDS on his first day in office, with an Executive Order. That order generally called for DOGE to do the kinds of things it had been doing — technological modernization, of the sort smart engineers might be qualified to do.
Sec. 4. Modernizing Federal Technology and Software to Maximize Efficiency and Productivity. (a) The USDS Administrator shall commence a Software Modernization Initiative to improve the quality and efficiency of government-wide software, network infrastructure, and information technology (IT) systems. Among other things, the USDS Administrator shall work with Agency Heads to promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.
But then on February 11, Trump issued an Executive Order vaguely ordering DOGE to do far more, including firing a shit-ton of people.
To restore accountability to the American public, this order commences a critical transformation of the Federal bureaucracy. By eliminating waste, bloat, and insularity, my Administration will empower American families, workers, taxpayers, and our system of Government itself.
[snip]
Reductions in Force. Agency Heads shall promptly undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law, and to separate from Federal service temporary employees and reemployed annuitants working in areas that will likely be subject to the RIFs. All offices that perform functions not mandated by statute or other law shall be prioritized in the RIFs, including all agency diversity, equity, and inclusion initiatives; all agency initiatives, components, or operations that my Administration suspends or closes; and all components and employees performing functions not mandated by statute or other law who are not typically designated as essential during a lapse in appropriations as provided in the Agency Contingency Plans on the Office of Management and Budget website. This subsection shall not apply to functions related to public safety, immigration enforcement, or law enforcement.
Even the declarations submitted in lawsuits reflect this disjunct. Take the February 13 declaration DOGE member Adam Ramada submitted in a lawsuit the University of California Student’s Association filed against the Department of Education. In ¶3 of his declaration, Ramada describes that Trump’s EO authorizes DOGE to “modernize government technology.”
3. On January 20, 2025, President Trump issued Executive Order 14,158, redesignating the United States Digital Service as the United States DOGE Service. The E.O. directs the USDS to modernize government technology and software to increase efficiency and productivity and to follow rigorous data protection standards and comply with all relevant laws when accessing unclassified agency records, software systems, and IT systems. It likewise directs agencies to ensure USDS has full access to all unclassified agency records and software and IT systems.
But the very next paragraph describes that he has been tasked to do something else.
4. I have been detailed to the Department of Education since 28 January 2025 to, among other things, assist the Department of Education with auditing contract, grant, and related programs for waste, fraud, and abuse, including an audit of the Department of Education’s federal student loan portfolio to ensure it is free from, among other things, fraud, duplication, and ineligible loan recipients. In addition, I help senior Department leadership obtain access to accurate data and data analytics to inform their policy decisions at the Department. One other USDS employee is also currently detailed to the Department of Education to assist me.
Later, the same declaration describes the access that six DOGE personnel have to student data as stemming entirely from a hunt for waste, fraud, and abuse.
9. The relevant employees require access to Department of Education information technology and data systems related to student loan programs in order to audit those programs for waste, fraud, and abuse.
An updated Ramada declaration filed February 16 disputed plaintiffs’ claim that 37 people had access to student information by claiming only six people were implementing Trump’s DOGE order(s). But by that point, technological modernization went completely unmentioned. And Ramada added a hunt for contracts that were “inconsistent with leadership’s policy priorities,” something not in his original declaration.
7. I am aware of the list of thirty-seven individuals whom Plaintiff’s counsel “believe have been given access to one or more ED records systems,” according to Plaintiff’s message to Defendants’ counsel on February 15, 2025. As stated above, there are only six of us at the Department whose primary role is implementing the President’s executive order. I am not aware of any DOGE-affiliated individuals other than the six listed above who have been granted access to Department information technology and data systems or who have otherwise received any Department information protected by the Privacy Act or section 6103 of the Internal Revenue Code.
8. Thus far, the six of us have primarily worked to identify contracts and grants that are wasteful, abusive, or inconsistent with leadership’s policy priorities.
9. It came to my attention today that one of the six employees referenced above has not yet completed ethics or information security trainings. He has been directed to complete both this week and has indicated that he will do so. [my emphasis]
In other words, Trump used the pre-existing entity focused on technological modernization as a front to — first — hunt things that Elon Musk called fraud but were really just things he could spin out of context to inflame the mob, and then use that paranoia to start firing masses of people and getting rid of DEI.
This has nothing to do with the technical mandate of USDS. Which may be why the former Director of Data Science at USDS resigned Wednesday.
But given DOGE’s failure to show any fraud yet, it likely also has little to do with finding waste, fraud or abuse.
DOGE’s “receipts” page appears to be cover, something to show to credulous Republicans to convince them this effort is in pursuit of something good, a hunt for waste, fraud, and abuse. But hidden within a claim to be pursuing technological modernization which got broadened to incorporate an apparently false claim to be hunting fraud is an effort to cut programs appropriated by Congress at scale.
That’s why DOGE’s receipts page is so shoddy. It’s not that the DOGE boys are not accountants, though they are not. It’s that their function is something other than the EO authorizing their work says it is, and the DOGE receipts page exists solely to sustain the fraud that they’re still pursuing waste, fraud, and abuse.
Update: After posting this and calling on Ron Wyden and Patty Murrray to ask GAO to investigate whether DOGE is committing fraud, I learned that GAO confirmed it opened an investigation (at that point limited to DOGE access to Treasury) requested by Wyden and Elizabeth Warren on February 12.
https://www.emptywheel.net/wp-content/uploads/2025/02/Screenshot-2025-02-20-at-4.24.07 PM-1.png6662278emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-20 12:13:362025-02-21 06:01:17The DOGE Fraud Is Coming from Inside the House
Something funny happened before the hearing in the Emil Bove’s motion to dismiss Eric Adams’ case today (after a long exchange, Judge Dale Ho did not rule on the motion itself).
Pam Bondi’s Chief of Staff Chad Mizelle posted a very long thread on Xitter falsely pretending that this case was only about the single bribery charge against Adams. He focused closely on the way John Roberts’ court has rolled back bribery statutes.
For too long the DOJ has lost its way.
Prosecutorial misconduct and political agendas will no longer be tolerated.
The case against Mayor Adams was just one in a long history of past DOJ actions that represent grave errors of judgement.
This DOJ is going back to basics.
Prosecuting the mayor of America’s largest city raises unique concerns.
I want to focus on one aspect: The legal theories underpinning SDNY’s case and the particularly expansive reading of public corruption law adopted by the prosecutors in this action.
To win a bribery conviction against a public official, DOJ must show some official act in exchange for benefits — a quid pro quo. What is the official act alleged in this indictment?
Well, the main event took place before Adams was even Mayor.
In September 2021, when Adams was a candidate for office, [1] a person associated with the Turkish government allegedly asked Adams to help ensure the swift opening of a new Turkish consulate in NY in advance of a visit from Turkey’s leader.
So here is a key question: How do these facts as alleged in the indictment stack up against the case law? Let’s start with a history lesson.
EVERY TIME DOJ has pursued expansive theories of public corruption, the Department has been rebuked by the Supreme Court. Put simply, DOJ’s track record of public corruption cases at the Supreme Court is abysmal.
In 2024, DOJ lost 6-3 in Snyder v. US, where SCOTUS overturned the conviction of an Indiana mayor who was convicted of federal bribery in connection with supposedly illegal gratuities. The Court rejected DOJ’s theory that accepting gratuities constituted quid pro quo bribery.
The year before, in 2023, DOJ unanimously lost two cases in the Supreme Court—both brought by prosecutors in the U.S. Attorney’s Office for the Southern District of New York.
In Ciminelli v. United States, The Supreme Court unanimously tossed the wire fraud conviction in connection with former Governor Andrew Cuomo’s “Buffalo Billion” initiative, calling DOJ’s theory of criminal liability “invalid.”
And in Percoco v. United States, the Supreme Court unanimously rejected the government’s theory about when private citizens can be liable for honest-services fraud in a case involving Governor Cuomo’s former executive secretary.
By the way, both Ciminelli and Percoco were decided on the same day, May 11, 2023. What a stunning rebuke to the US Attorney’s Office in the Southern District of New York — Losing 18-0 in a single day.
Then there is Kelly v. United States from 2020, unanimously overturning the conviction of New Jersey officials involved in the so-called “Bridgegate” matter by, again, faulting the government for defining federal fraud too broadly.
Before then, SCOTUS unanimously repudiated the United States’ prosecution of Gov. Bob McDonnell in 2016, again faulting DOJ’s expansive theories of bribery. SCOTUS in Skilling v. United States in 2010 similarly rejected DOJ’s theory of honest-services fraud as overly broad.
And finally, when DOJ prosecuted Senator Ted Stevens for failing to report gifts, DOJ ended up having to dismiss the indictment even after obtaining a conviction, because prosecutors egregiously failed to disclose material evidence to the defense.
Clearly, this history and case law underscores the legal risks associated with prosecuting Mayor Adams. DOJ could win a bribery conviction against a public official only by showing some official act in exchange for benefits.
The alleged official act in the indictment, however, took place before Adams was mayor. And one of the main benefits that the Mayor allegedly received was campaign contributions. [2] But all successful politicians, no matter the party, receive campaign contributions.
In the Adams case, SDNY was rolling the dice. And given the DOJ’s abysmal history of losing at the Supreme Court, the odds were against the DOJ. Even the district judge said at a recent hearing that there was “some force” to Adams’s challenges to the gov’ts central legal theory.
The government must tread particularly carefully before classifying contributions a crime given the First Amendment implications of such a theory.
Additionally, the amount of resources it takes to bring a prosecution like this is incredible — thousands and thousands of man hours. Those resources could better be used arresting violent criminals to keep New York safe or prosecuting gang and cartel members.
Given the history, DOJ had to decide—among other issues—whether to keep going down a road that the Supreme Court has viewed with skepticism on numerous occasions. Dismissing the prosecution was absolutely the right call. END.
• • •
Mizelle is not wrong, at all, about the Roberts’ court’s disinterest in public corruption. They are, at least some of them, aficionados of it!
But along the way, Mizelle addressed only the bribery charge — the sole charge that Adams’ lawyers moved to dismiss.
Even there, Mizelle was playing loose with the record. The quote (from Judge Ho’s opinion rejecting the challenge) that Adams’ argument has “some force” only applies to one of two theories of bribery adopted by SDNY.
Mayor Adams takes particular issue with the Government’s first theory, arguing that— even leaving aside Snyder—being “influenced in connection with the City of New York’s regulation of the Turkish House” is simply too general or vague to constitute the requisite quo for bribery under § 666. Def. Reply Br. at 6–7; see also Def. Br. at 11. He contends that the words “business,” “transaction,” and “series of transactions” in § 666 refer to “specific and concrete governmental actions, not abstract or general objectives.” Def. Br. at 10. He further argues that to the extent the word “business” could be read broadly, it should not be—because that would render the terms “transaction” and “series of transactions” superfluous. Id. Adams seeks, in effect, to imbue the quo element of § 666 with a degree of specificity that, even if not identical to McDonnell’s “official act,” embodies a “core requirement [that] would be the same: . . . a specific and formal exercise of governmental power.” Def. Br. at 10.
Mayor Adams’s arguments on this point have some force.
Judge Ho didn’t say the same about the theory that Adams paid off Türkiye’s favors by helping them get into their new consulate.
Separately, regardless of whether the “regulation” of the Turkish House is specific enough to form the requisite quo at the indictment stage, there is no real dispute that the issuance of a TCO is a specific and formal exercise of governmental power
Furthermore, Mizelle claimed at [1] that Adams was just a candidate. While Adams was not yet Mayor (though he had won the Democratic primary) he was Borough President when he sent some texts to get the FDNY to approve the building. As Judge Ho noted in his opinion, whether Adams used his authority as Borough President to deliver a quo to Türkiye was a matter for a jury to decide.
Mayor Adams makes a separate but related argument that, even if formal authority is unnecessary, a pressure theory still requires that a defendant “us[e] his official position to exert pressure on another official.” McDonnell, 579 U.S. at 574 (emphasis added). Adams contends that the Indictment fails to allege that any pressure he exerted on the FDNY stemmed from his official position as Brooklyn Borough President. See Def. Br. at 19. Rather, he argues, “the government is effectively claiming that Adams used his potential future position as Mayor to exert pressure on officials.” Id.
But the Indictment alleges that, “as Brooklyn Borough President, [Adams] met with members of the FDNY from time to time,” Ind. ¶ 38a, and the Government argues that it will prove at trial that it was Adams’s position as Brooklyn Borough President that “[got] him in the room, as it were, with the fire commissioner” in order to exert pressure regarding the TCO. Tr. at 33; see also id. at 34 (arguing that the jury could conclude that “the defendant was using his official position as Brooklyn Borough president to let him reach out [to] the fire commissioner on city business with the mayor, that’s what got him a room”). Ultimately, whether or not Adams used his official position as Brooklyn Borough President to exert pressure on the FDNY is a factual question for a jury to resolve.
So even on the bribery count, Mizelle was playing loose with the record.
But then he dismissed the other allegations in the indictment — which, again, Adams’ lawyers didn’t challenge as a matter of law — which include wire fraud, soliciting straw donors, and accepting illegal campaign contributions from foreigners, as mere campaign donations.
Pam Bondi’s Chief of Staff treated gifts from foreign powers as if they’re totally legal.
Noted.
That far, anyway, Chad Mizelle’s little screed looked thoroughly dishonest. But I didn’t doubt his — and by extension, DOJ’s — opposition to the enforcement of bribery statutes.
But at 2:37 ET, shortly after I was reading the rant Mizelle posted at 12:42, I was alerted to this development: an information setting up a one count guilty plea by former DC official Dana McDaniel, in a scheme that is almost certainly related the charges filed against former DC Council Member Trayon White last September. The information was signed by Acting DC US Attorney Ed Martin, one of Pam Bondi’s trusted operatives.
Pam Bondi’s DOJ doesn’t have a categorical opposition to bribery charges, it turns out.
Only bribery charges against those from whom they want something in exchange.
https://www.emptywheel.net/wp-content/uploads/2024/09/Eric-Adams.webp618440emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-19 18:36:162025-02-20 01:26:29Chad Mizelle’s Appearance of Impropriety
LOLGOP and I have done the final installment of our Ball of Threads podcast — focused on Kash Patel, who serves as kind of the alpha and omega of Trump’s grievance narrative.
The Senate is rushing to confirm Kash in days ahead, in spite of all the prevarication and conflicts we review in this video.
https://www.emptywheel.net/wp-content/uploads/2024/07/Ball-of-Thread.webp626626emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-18 10:28:202025-02-18 10:28:20Ball of Thread, Ball of Kash
There are two stories that attracted a lot of attention last week that offer the same lesson.
The first story is the report that after firing a bunch of people in charge of securing nuclear weapons, Trump’s minions have tried to rehire them, which was first reported by CNN.
Trump administration officials fired more than 300 staffers Thursday night at the National Nuclear Security Administration — the agency tasked with managing the nation’s nuclear stockpile — as part of broader Energy Department layoffs, according to four people with knowledge of the matter.
Sources told CNN the officials did not seem to know this agency oversees America’s nuclear weapons.
An Energy Department spokesperson disputed the number of personnel affected, telling CNN that “less than 50 people” were “dismissed” from NNSA, and that the dismissed staffers “held primarily administrative and clerical roles.”
The agency began rescinding the terminations Friday morning.
The other is that the USAID is trying to prevent anyone still at the now-shuttered agency from telling the press that the life-saving grants for which Marco Rubio issued waivers have not actually been reauthorized to operate, which Greg Sargent focused on after John Hudson disclosed a memo making the order.
A new internal memo circulating inside the U.S. Agency for International Development neatly captures this split. The Washington Postreports that the memo warns USAID employees not to communicate with the press about the shocking disruptions in humanitarian assistance that are being caused by the Trump-Musk attack on the agency, which are already producing horrific consequences. The memo said this transgression might be met with “dismissal.”
The memo claims to be correcting a “false narrative in the press” about the disruptions to that assistance. It notes that Secretary of State Marco Rubio last month issued a waiver to “lifesaving humanitarian assistance,” allowing it to continue despite the Trump-Musk freeze in agency spending. This has meant that this assistance has “continued uninterrupted and has never paused,” the memo claims, while warning recipients against any “unauthorized external engagement with the press.”
Now, at one level, this chaos is happening because many of the people enacting these cuts are DOGE boys with no idea what they’re looking at. Don Moynihan (who is an indispensable source on the policy issues of all this) uses the nukes case as one example to make the same point: because ignorant people were making the firing decisions, they eliminated a slew of critical positions.
Musk’s management style when it comes to downsizing has been to cut to the bone, and then hire back if he fired too many. This philosophy might make sense if you are running a social media company where its not a big deal if Twitter goes down for a couple of hours. It makes less sense where the a) failure of government systems has big and sometimes irrevocable costs, and b) it is not easy to replace expertise once you have eliminated it. On the latter point, many public jobs take time to develop knowledge of the policy domain, organizational practice and tasks. Those are not qualities that are easy to rebuild if you just spent a year training a new employee who has now been fired.
[snip]
Let me note that I feel like this lesson should not be necessary. We should not need to spell this one out. One measure of the collapse of the Soviet Union was that they could no longer afford to keep staff to secure nuclear warheads. Why would the US voluntarily downgrade it’s own capacity to manage its nuclear arsenal? And yet, DOGE fired 1 in 5 federal staff that manage the nation’s nuclear stockpile.
Have you heard about the National Nuclear Security Administration before? Probably not. It’s one of those jobs that we hopefully never need to think about, because if we do that means something has gone badly wrong. But it’s also one of those jobs that someone needs to ensure is staffed appropriately to make sure something does not go badly wrong. As a citizen, its fine if you are not aware of NNSA, but bear in mind that when the right attacks wasteful bureaucracy, these sort of invisible agencies performing important tasks are some of what they are talking about.
Apparently DOGE does not know much about the NNSA either. To be fair, when you have zero experience of government, why should you? But if you have zero experience of government, you should also probably not be in the position of firing 300 of the guys who take care of the nukes. CNN reported that the fired staffers included “staff who are on the ground at facilities where nuclear weapons are built. These staff oversee the contractors who build nuclear weapons, and they inspect these weapons.”
After enough members of Congress got upset, the firings were rescinded. Just one problem. DOGE made the firings effective the day they were received (no notice, not severance), immediately shutting down access to government emails. And they did not have contact information to tell NNSA employees they were unfired.
[snip]
Under Biden, the IRS had received long-awaited and much needed funds that allowed it to rebuild after a period of sustained downsizing, and was becoming more effective.
The IRS represented a very simple test for the credibility of DOGE. Was it really interested in efficiency and state capacity? If so, you support the tax enforcement, the biggest return on investment in government, generating somewhere between $5-9 for every additional $1 spent on enforcement.
Or did DOGE want to minimize parts of the state that bothered billionaires?
We have our answer. In the middle of tax season, the IRS was told to lay off thousands of workers hired as part of the rebuilding project.
Part of the DOGE hype is that after they fire everyone, they will figure out better ways to do the job using, uh, AI and such. But there is no second act where it gets better. They don’t have a plan to fix what they are breaking because they don’t understand or care about the damage they are doing. Breaking government is the point. It is not as if DOGE has some magical IRS plan up their sleeve. There is no plan.
The story is not just that these DOGE boys have no idea what they’re looking at, being so incompetent that the word “nuclear” doesn’t even spark their interest.
It’s that after ideologues fire competent bureaucrats, they’re often left without a way to turn the bureaucracy back on again when they realize they actually needed it.
Take the first example, the people ensuring the security of America’s nuclear arsenal. As NBC followed up, after Congressional lobbying and a press campaign convinced someone to reverse the NNSA firings, the DOGE boys had no easy way to contact those who had been fired to order them to return to work.
National Nuclear Security Administration officials on Friday attempted to notify some employees who had been let go the day before that they are now due to be reinstated — but they struggled to find them because they didn’t have their new contact information.
In an email sent to employees at NNSA and obtained by NBC News, officials wrote, “The termination letters for some NNSA probationary employees are being rescinded, but we do not have a good way to get in touch with those personnel.”
AP has a follow-up noting — among other things — that the key jobs were in Texas, Eastern Washington, South Carolina, and Tennessee. These are not just crucial jobs for national security, but many of them represent job losses in Republican areas.
Something similar has happened at USAID.
It shouldn’t have, because there, one key player shutting down the agency, Pete Marocco, actually worked at USAID in the first Trump term. The declaration he has submitted in multiple suits admitted he shut down already-committed funds on his own authority, without Marco Rubio’s involvement. He described that after he started firing administrators, administrators were unable to answer his questions, which he deemed insubordinate rather than just a natural consequence of firing the people who might be able to answer his questions. Nevertheless, his inability to get answers is what he used to justifying shutting everything down.
As a former USAID staffer, Marocco should have the competence to know better — but ProPublica describes why his own past insubordination may be a better explanation for his war against the agency.
The flood of USAID lawsuits has produced an associated flood of sworn declarations that describe, from the perspective of people involved, what is really happening.
For example, as part of a suit by the American Foreign Services Association, a program officer described that, even though she supervises 30 emergency food assistance programs, she had not (as of February 7) been able to get a waiver for any of them, resulting in food rotting in warehouses.
For example, while it was announced that most USAID funding would be frozen, a waiver is supposed to be available for life-saving humanitarian assistance, which would apply to the more than 30 emergency food assistance programs I support. Without my knowledge, the partners I manage, nearly all of which work on lifesaving, emergency food assistance, were sent email notices from their Agreement Officers directing them to fully or partially stop their work. As an Agreement Officer Representative for these awards, I am required to be copied on any communications, which never happened. While I tried to obtain a waiver for the programs I manage, there was no guidance on the process by which our patterns could obtain a waiver and none of the programs were ever formally approved to keep running. I am skeptical that the waiver actually exists. At this point, if a waiver does in fact exist, the implementation has been so chaotic with so many employees either furloughed or on administrative leave that as a practical matter it isn’t available to those who need it. While the programs I manage are under a stop work order, food commodities sit in warehouses rotting and scheduled food distributions to vulnerable populations do not happen and children miss follow-up appointments for treatment of severe malnutrition.
A contracting officer’s declaration in the same suit described the conflicting management orders, the lack of access to experts, and the technical access limits that made it impossible to implement the waiver program.
As a Contracting Officer, some of the awards on this list were perplexing and the sudden push to do this while nearly all of our counterparts with technical knowledge about where awards were in the waiver process and what the programmatic purpose of each award were locked out of the network and suspected to be on administrative leave.
There was an approved tab with one single PEPFAR award despite the fact that the Agency has many different PEPFAR awards and we were told a waiver had been granted for PEPFAR and Emergency Food Assistance. There were no Emergency Food Assistance awards on the approved tab. Concerns were raised by Contracting Officers and Regional Legal Officers alike who replied all to Matthew’s email with concerns. We asked for clarification on the reason for the contract terminations and for confirmation that OAA had consulted with OMB and made a determination consistent with the Executive Order on realigning foreign aid. If these awards had not received such a determination, the termination would be in violation of the executive order. We received no reply to those questions. A contracting officer replied all to the email asking if Congressional notification had been made on these terminations and noted that Congressional notification is required when a termination will involve reduction in employment of 100 or more contractor employees which these actions would likely result. It was also asked if USAID had taken steps to adhere to our Congressionally authorized and funded responsibilities on these terminations.
These emails received no reply from OAA leadership and our working level supervisors urged us to proceed with the terminations and meet the deadlines.
Subsequently at approximately 6PM that same day, Nadeem Shah, Deputy Director of Washington Operations for OAA, sent around an email entitled “PLEASE PAUSE ALL AWARD TERMINATIONS” asking staff to hold off on all award terminations in Matthew’s previous email.
[snip]
When my technical bureau’s access was supposedly restored yesterday, we quickly discovered that they do not have access to our Agency File system called ‘ASIST’ nor do they have access to our financial system in direct violation of the TRO issued the night of February 7, 2025. This makes it incredibly hard for them to provide programmatic information to help with the program review process. To date, the technical bureaus have not had any opportunity to provide any inputs or relevant information for the programmatic review. I am extremely concerned that Agency and State Dept leadership do not have the relevant information needed to thoroughly evaluate programming
Importantly, this seems to suggest that PEPFAR — one of the programs that Republicans have vociferously championed — was only partly restored because someone didn’t understand the multiple programs it involves.
Another staffer in the same AFSA lawsuit, a controller, described how bureaucratic and technical problems have prevented people from disbursing funds even for the programs that have gotten waivers.
9. On February 3, the situation changed yet again. As of that date, every time I tried to hit the “certify” button to begin a disbursement, I received an error message stating that I did not have authority to proceed. I contacted Phoenix Security to inquire if there was a technical problem in the system and was told “on Friday January 31, we were instructed to remove the ability to certify payments.” They did not indicate who instructed them, only stating “Unfortunately I am unable to reverse this decision.”
10. On February 5, all USAID controllers received another diplomatic cable indicating that USAID personnel could no longer process payments themselves but must request approval from a Senior Bureau Officer before forwarding the payment packages for processing. However, as of February 11, nobody can agree on who is the appropriate SBO for USAID payments and the State Department hasn’t processed a single payment based on the new procedure.
11. As of February 9, when I try to log into Phoenix, I receive a new error message stating that my sign-in attempt has failed. I have even less access to Phoenix after the February 7 court order than I did before that date.
12. I have been in touch with many colleagues and all report the same experience. To my knowledge, worldwide there are no USAID financial management personnel, including controllers, that can access Phoenix.
13. I have not been able to process payments under any of the waivers included in the January 24 cable, including legitimate expenses incurred prior to January 24 under existing awards or those for employee operating expenses. Though the waivers exist on paper, in reality all USAID funds have remained frozen because of technological barriers added to the system, I don’t know by whom. Phoenix will not let us disburse anything.
In a different USAID-related lawsuit by contract recipients, the head of a faith-based non-profit, Mark Hetfield, described how attempts to get waivers looked in practice.
11. On February 3, 2025, HIAS also received a revised “Notice of Suspension” for its work in Chad from PRM via email stating that HIAS should stop all work under the grant unless exempted from suspension as “existing life-saving humanitarian assistance” defined by the Department as “core life-saving medicine, medical services, food, shelter, and subsistence assistance, as well as supplies and reasonable administrative costs as necessary to deliver such assistance.” See February 3, 2025, Letter from Philip Denino, PRM Grants Officer, annexed to this declaration as Exhibit F. In his cover email, Mr. Denino stated that “PRM will follow up shortly to set up a meeting to discuss the specific HIAS programming in Chad that falls under the exemption for life-saving humanitarian assistance.” See February 3, 2025, Email from Philip Denino, annexed to this declaration as Exhibit G. That meeting with PRM took place the next day, February 4, during which HIAS and PRM staff discussed what activities would qualify as “lifesaving humanitarian assistance.” PRM asked HIAS to provide an overview of HIAS’ activities conducted in Chad pursuant to the award that HIAS deemed exempt from the 90-day suspension. HIAS prepared and sent the requested overview. See February 7, 2025, Email from Guillermo Birmingham to Philip Denino, annexed to this declaration as Exhibit H. However, after the meeting, Mr. Denino sent a follow up email indicating they he had been “given guidance that PRM will not be providing any additional information regarding the application of the waivers/exemptions to activities” and that he could only refer us to the revised Suspension Memo to guide us in resuming activities. See February 4, 2025, Email from Philip Denino to Guillermo Birmingham, annexed to this declaration as Exhibit I. Nor would we be able to receive funds to continue work under a waiver/exemption since all federal government payment portals were and are not functioning, making the purported waiver/exemption process cited in PRM’s revised Notice of Suspension useless.
12. On February 10, HIAS’ Chief Financial Officer again asked PRM for guidance on what would qualify as an emergency exemption from the indefinite suspension of PRM funds. In response, PRM’s Grants Officer stated, “I can’t provide guidance. It was determined much higher than me.” HIAS’ CFO then expressed concern to PRM that the lack of guidance coupled with the inability of aid organizations to access payments is making it impossible for organizations to provide the lifesaving humanitarian services identified by PRM as exempt in their revised Suspension Notice. See February 10, 2025, Email exchange between Guillermo Birmingham and Philip Denino, annexed to this declaration as Exhibit J.
He included a stack of backup, including the email instructing that Comptrollers were instructed not to provide any guidance on what was considered life-saving programming covered by the waivers.
Ultimately, USAID simply refused to tell grant recipients whether they had received a waiver or not, and if so for which parts of their programming. And it wouldn’t matter anyway because the computer systems on which it all runs are not functioning. State doesn’t want employees telling the press that life-saving grants haven’t been resumed, because Marco Rubio doesn’t want to confess to Republicans that he failed to deliver what he promised them.
Whether intentional at USAID or the inevitable outcome of arbitrary ignorance, the effect is the same.
It’s not just that the DOGE2025 attack on government has destroyed critical expertise. But absent that expertise, Trump’s minions are finding it difficult to reverse the ill effects of their initial assault, because the initial damage they do to both systems and expertise makes it far harder to reverse their initial failures.
Last July, JD Vance envisioned this process as a de-Ba’athification, which he imagined was targeted at a caricature of liberal culture, but which in reality targeted the civil service. Someone who served in Iraq really did set out to recreate the same insanely stupid policy decision that made Iraq a decade-long clusterfuck — he really did set out to launch that same kind of attack on his own government.
We’ve seen this movie before. It was, perhaps, Americas biggest failure ever.
https://www.emptywheel.net/wp-content/uploads/2025/02/Screenshot-2025-02-17-at-11.16.25.png5461012emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-17 06:24:392025-02-17 08:17:12DOGE2025 Is Getting the Catastrophic De-Ba’athification They Demanded
The other day, Pete Hegseth capitulated to Vladimir Putin, dealing away Ukraine’s future and leverage, making Neville Chamberlain look not only stronger, but better dressed, by comparison.
He tried to walk back his capitulation the next day.
Everything is on the table in his conversations with Vladimir Putin and Zelenskyy. What he decides to allow or not allow is at the purview of the leader of the free world of President Trump. So I’m not going to stand at this podium and declare what President Trump will do or won’t do, what will be in or what will be out, what concessions will be made or what concessions are not made.
Remember, in response to questions from Tammy Duckworth, Hegseth confessed he had never been part of international negotiations. In his first day and second days learning on the job, he failed every rule of negotiation.
I may return to Pete Hegseth’s predictable failures.
For now, though, I want to note all the things put in place before Trump seemingly turned on a dime, effectively demoting his Ukraine negotiator Keith Kellogg in favor of Marco Rubio, John Ratcliffe, Mike Waltz, and Steve Witkoff (who has been liaising with people like Mohammed bin Salman and — reportedly, Kirill Dmitriev from Mueller Report fame) and taking a much more pro-Russian stance in this negotiation.
Between Trump, Attorney General Pam Bondi, and DHS Secretary Kristi Noem, they have protected precisely the kind of interference and corruption with which Russia kicked off Trump’s political career ten years ago. These moves have been covered already (see this post from Casey Michel and this from Cyberscoop). But I want to look at the kinds of DOJ and CISA actions against which Trump’s team may be reacting, not least because this pivot from Trump did not happen until they were all in place.
Non-prosecution of FCPA: Start with the decision to first limit (in Bondi’s adoption) and then pause (in Trump’s adoption, in a later Executive Order) prosecution of the Foreign Corrupt Practices Act, a law that prohibits businesses with a presence in the United States from engaging in bribery. Bondi actually put this provision in a memo otherwise eliminating approval requirements for investigations and prosecutions targeting trafficking, and with regards to FCPA, simply made using FCPA against traffickers the priority.
Foreign Corrupt Practices Act. The Criminal Division’s Foreign Corrupt Practices Act Unit shall prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs, and shift focus away from investigations and cases that do not involve such a connection. Examples of such cases include bribery of foreign officials to facilitate human smuggling and the trafficking of narcotics and firearms.
Trump, on the other had, halted its use for six months and then maybe another six months.
Most coverage of this move noted its use, under Trump, to penalize Goldman Sachs for bribing Malaysia’s 1MDB sovereign wealth fund, an investigation the aftermath of which sucked in Trump associate Elliott Broidy before Trump pardoned him. But it might be better to consider how such bribery statutes limit transnational investment companies like Trump’s own and Jared Kushner’s. That is, Trump’s intervention in FCPA might be personal to Trump.
Elimination of KleptoCapture Task Force: In the same memo, buried under a shift of focus for Money Laundering cases to traffickers and away from Trump’s buddies, Bondi also included this language about the KleptoCapture program that has been a key prong of Joe Biden and Merrick Garland’s response to the Ukraine invasion.
Money Laundering and Asset Forfeiture. The Criminal Division’s Money Laundering and Asset Recovery Section shall prioritize investigations, prosecutions, and asset forfeiture actions that target activities of Cartels and TCOs.
Task Force KleptoCapture, the Department’s Kleptocracy Team, and the Kleptocracy Asset Recovery Initiative, shall be disbanded. Attorneys assigned to those initiatives shall return to their prior posts, and resources currently devoted to those efforts shall be committed to the total elimination of Cartels and TCOs.
It’s not yet clear whether this means DOJ will start giving yachts back to the sanctioned Russian oligarchs that Biden seized them from.
But what this does imply is that the sanctioned oligarchs who had invested in property and other facilities in the US — people like Oleg Deripaska and Andrii Derkach, both of whom were identified to have ties to Russian influence operations in election years — might be free to invest in the US again.
Shift away from FARA: Buried in Section IV of a different memo innocuously titled “General policy regarding charging, plea negotiations, and sentencing,” are two paragraphs describing changes in the National Security Division’s focus.
Shifting Resources in the National Security Division. To free resources to address more pressing priorities, and end risks of further weaponization and abuses of prosecutorial discretion, the Foreign Influence Task Force shall be disbanded. Recourse to criminal charges under the Foreign Agents Registration Act (FARA) and 18 U.S.C. § 951 shall be limited to instances of alleged conduct similar to more traditional espionage by foreign government actors. With respect to FARA and § 951, the Counterintelligence and Export Control Section, including the FARA Unit, shall focus on civil enforcement, regulatory initiatives, and public guidance.
The National Security Division’s Corporate Enforcement Unit is also disbanded. Personnel assigned to the Unit shall return to their previous posts.
Let’s take them in reverse order. The FARA statement basically says that only people akin to spies will be charged criminally with it; everyone else will be subject to the same civil sanctions DOJ used before the Paul Manafort case. That of course means Manafort’s ongoing work is in the clear (a point that Ken Vogel makes in a column hilariously titled, “Moves by Trump and Bondi Raise Hopes of Those Accused of Foreign Corruption“). It also makes things far easier for Pam Bondi’s former colleagues at Ballard Partners, the most powerful foreign influence peddlers under the first and undoubtedly the second Trump term. This will save Bondi’s friends a whole lot of money in compliance worries.
But here’s the problem with this move: Most of the people DOJ has charged with criminal FARA in recent years were being handled by foreign spies. FARA, as it was used under Mueller and since, was a way to neutralize people for being in the pay of foreign spies without having to prove — or having to declassify evidence to show — that they were themselves spies. It was a way to disable spying, even or especially if people receiving foreign money didn’t know they were being handled by spies.
But Bondi just said she won’t use that tool.
Elimination of FITF: I might have written this post weeks ago, except I keep staring at Bondi’s claim that the Foreign Influence Task Force (the website for which has been taken down) led to “abuses of prosecutorial discretion.” Now, Bondi often parrots the stupidest bullshit that Jim Jordan has floated (which includes a lot of false claims made by Matt Taibbi), and this may be an example — because FITF would not lead to prosecution of a US person, as I tried to lay out in this table (which first appeared in this post).
What the FITF did was to identify attempts by foreigners to clandestinely influence Americans (not just during elections). It played a key role in funneling intelligence to the private sector, especially social media companies. While the government has charged foreigners involved in such operations (such as the Iranians who hacked Trump’s campaign), Americans would almost always be victims.
Based on that assumption, I can only imagine Bondi’s reference to “abuses of prosecutorial discretion” pertains to one of three possible prosecutions:
The prosecution of Douglass Mackey for duping Hillary Clinton voters into “texting” their vote rather than voting in person, a prosecution that in later years might have arisen out of election protection efforts (the second row in this table) put in place in the wake of 2016.
A warning about the Andrii Derkach influence operation in 2020, which was managed by FITF, and which led the FBI to shut down some informants sharing information on Hunter Biden. Importantly, the entire right wing believes that a FITF staffer, Laura Dehmlow, should have breached the confidentiality of a non-public investigation in 2020 and told Facebook that the hard drive shared with New York Post derived from a Hunter Biden laptop in the FBI’s possession was “real” (notwithstanding that the FBI had not, and still has not, done the most basic things to test if it was packaged up). So it’s possible that Bondi believes, like Jim Jordan does, that the outcome of the Hunter Biden investigation would have been different if they could have relied more on the laptop.
The Tenet operation, in which the RT funded right wing propagandists Dave Rubin, Tim Pool, and Benny Johnson. The operation was exposed with an indictment of foreigners shortly before the pre-election halt to such actions, but not even Canadian Lauren Chen has been charged, much less the right wing bros. That indictment, for money laundering and FARA, might not be viable under Bondi’s new restrictions on other prosecutorial focus.
But there are a whole bunch of things you throw out with that bathwater. If the FITF is disbanded, then social media companies might not have discovered that Iran was adopting the identities of the Proud Boys to suppress turnout among people of color. There’s the ongoing Doppelganger effort to create counterfeit versions of real US and European media outlets to spread disinformation — such as an attack on USAID that Elon Musk spread just days ago.
Or there’s the multiple influence operations that Jack Posobiec has been party to, starting with PizzaGate (the weaponization of the Podesta emails stolen by the GRU), the GRU MacronLeaks operation, as well as a more recent FSB campaign. Posobiec’s centrality to all this — as well as his involvement in other kinds of rat-fucking — is particularly pertinent because Pete Hegseth at least invited Jack Posobiec to travel with him to the Munich Security Conference where he sold Ukraine out.
Trump administration officials at the Pentagon invited a far-right activist, Jack Posobiec, to participate in Defense Secretary Pete Hegseth’s first trip overseas, according to a planning document obtained by The Washington Post and people familiar with the decision, triggering alarm among U.S. defense officials worried about the military being dragged into partisan warfare.
Posobiec was in Ukraine yesterday — it’s not yet clear whether he traveled to Europe with the Defense Secretary.
The most charitable explanation for Bondi’s decision to shut down FITF is that she’s suffering from delusions that Jim Jordan passed on. But if she really understands what this program did, then she has deliberately chosen to make it easier for hostile countries, especially Russia, China, and Iran, to affect US elections.
Administrative Leave of CISA Election Security Staff: Which brings me to the most recent effort to help foreign adversaries, something done by Kristi Noem, not Pam Bondi. On Monday, 17 of the people who were involved in keeping the 2024 election secure were put on leave, citing a focus on election disinformation.
In recent days, 17 employees of the U.S. Cybersecurity and Infrastructure Security Agency who have worked with election officials to provide assessments and trainings dealing with a range of threats — from cyber and ransomware attacks to physical security of election workers — have been placed on leave pending a review, according to a person familiar with the situation who was not authorized to speak publicly.
Ten of those employees are regional election security specialists hired as part of an effort to expand field staff and election security expertise ahead of the 2024 election. The regional staffers were told the internal review would examine efforts to combat attempts by foreign governments to influence U.S. elections, duties that were assigned to other agency staff, according to the person.
All were former state or local election officials who were brought in to build relationships across all 50 states and the nation’s more than 8,000 local election jurisdictions. They spent the past year meeting with election officials, attending conferences and trainings, and ensuring officials were aware of the agency’s various cybersecurity and physical security services.
[snip]
The other staffers placed on leave are current or former members of the agency’s Election Security and Resilience team, who were told the review was looking into agency efforts to combat misinformation and disinformation campaigns, according to the person familiar with the situation. The 10 election security specialists who worked with state and local election officials reported to a different team at CISA, the field operations division.
Now, the rationale offered for this decision is a review of CISA’s involvement in warnings about mis- and disinformation. As noted above, that’s not what CISA does. To the extent it shares information with social media companies, it is to provide correct information to make it easier for people to get quality information on voting.
But consider something that these 17 people might have been involved in: the effort, in real time, to respond to bomb threats called into electoral precincts in Democratic areas, many of which were sourced to Russian email domains. (Remember that Ohio Governor Mike DeWine attributed the bomb threats in Springfield — threats ginned up with the significant involvement of Jack Posobiec — to overseas actors.)
We still don’t know whether the bomb threats targeting Springfield and voting locations actually were Russian operations or whether they were funneled through Russia by American actors to obscure their origin. We still don’t have a report from the FBI explaining what happened.
And with the decision to shut down both the FITF and to pause CISA’s election protection work, we may never get it now. We may never learn whether Democratic precincts had to shut down due to Russian involvement or that of people laundering their work through Russia.
In the wake of Trump’s victory, key Putin advisor Nikolai Patrushev claimed that, to win, Trump “relied on certain forces to which he has corresponding obligations.”
In his future policies, including those on the Russian track US President-elect Donald Trump will rely on the commitments to the forces that brought him to power, rather than on election pledges, Russian presidential aide Nikolay Patrushev told the daily Kommersant in an interview.
“The election campaign is over,” Patrushev noted. “To achieve success in the election, Donald Trump relied on certain forces to which he has corresponding obligations. As a responsible person, he will be obliged to fulfill them.”
He agreed that Trump, when he was still a candidate, “made many statements critical of the destructive foreign and domestic policies pursued by the current administration.”
“But very often election pledges in the United States can iverge from subsequent actions,” he recalled.
When he gave that ominous warning, I concluded that Trump would soon sell out Ukraine and the rest of Europe. But that didn’t happen right away. Rather, for months, Trump feigned a hardline stance against Russia, all while teasing the number of calls he was having with Putin.
Until this week.
Trump didn’t move to “fulfill” the “corresponding obligations” he made to get help in the election, if indeed he did get help, until Pam Bondi instructed DOJ not to look for such things.
https://www.emptywheel.net/wp-content/uploads/2025/02/Screenshot-2025-02-14-at-3.04.14 PM.png18481752emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-14 11:01:412025-02-14 11:03:22Did Pam Bondi Bury the Election Day Bomb Threats?
For some time, we’ve all been assuming that Trump will defy court orders reining in his assault on the government. And then, in the wake of Judge Paul Engelmayer’s order enjoining Scott Bessent from altering Treasury’s payment system before Friday, JD Vance ran his mouth, convincing everyone that that moment is already here.
Overnight, filings in at least two of the lawsuits against Trump’s attacks suggests that Trump is, at least for now, complying.
In the Rhode Island case in which states enjoined OMB from withholding government grants the government filed a response describing, among other things, how they’ve worked to ensure payments to Oregon continue.
In the New York lawsuit, also brought by states, DOJ asked for clarification of the scope of Engelmeyer’s order and opposed the breadth of it (noting, that there were contractors who did work on the system and also listing some senior Treasury officials, political appointees, who needed access). With that, Thomas Krause submitted a declaration saying he’s the only Special Government Employee who currently has permission to access the system (meaning they’re also complying with Colleen Kollar-Kotelly’s order in DC), but also revealing that Marko Elez — the DOGE boy who was included in Kollar-Kotelly’s order — has not returned to Treasury. Krause even notes (as I did) that the order to destroy what Elez has done likely conflicts with the order Kollar-Kotelly issued.
DOJ is pushing at the terms of the orders limiting government actions. But it at least claims it is complying.
There is other conflicting evidence about implementation. I have also seen reports that USAID people stationed overseas were having their access to communications systems restored, in compliance with Carl Nicoles’ order. But WaPo reports that the Administration continues to process resignations in potential defiance of George O’Toole’s order halting the Fork in the Road program.
I don’t doubt that at some point Trump will defy the courts. But for a number of reasons, I suspect they won’t outright defy judges yet.
One main reason is obvious: Trump and Russ Vought want John Roberts to grant him the authority to — basically — neutralize Congress’ power of the purse. To do that, he needs a clean appellate record. So he has to go through the process of engaging in good faith (even while arguing, as he did in his response to the Engelmeyer order, for a maximal theory of Executive power).
Another reason likely has to do with Pam Bondi. She has her own malign goals for DOJ, such as a likely assault on medical abortion pills, both between and within states. Plus, she is pursuing Trump’s attacks on sanctuary states.
But to use DOJ for these policy purposes, there has to be a DOJ, with attorneys more competent and experienced in Federal litigation than Ed Martin, the Acting US Attorney in DC. With the possible exception of the birthright citizenship defense, DOJ has real AUSAs fighting these cases, AUSAs who are going to be unwilling to risk their bar license on frivolous legal arguments or lies.
Finally, I think DOJ is in a risky situation in its confrontation with attorneys and FBI personnel. Ben Wittes noted recently, the Administration needs the FBI, in ways it doesn’t need USAID personnel, at least not in the same potentially catastrophically visible way they need the FBI.
The FBI rank and file have power in this equation that other agencies, such as USAID, for example, do not have. The Trump administration does not need USAID. It wants to eliminate foreign aid anyway, so if the personnel at the aid agency get uppity, who cares? And if they quit? All the better.
The FBI is not that simple. For one thing, the administration does need law enforcement. If there’s a terrorist attack, and there will be, and the FBI is not in a position to prevent it or investigate it quickly and effectively, the administration will take the blame.
This administration also draws its legitimacy from backing the blue. Even in their war on the intelligence community, Donald Trump and his people always tried to distinguish between the rank and file and the “bad apples” who were running things. Waging a full-scale war against the nation’s premier law enforcement agency, a war that is all about targeting street agents for having done their jobs, is a dangerous game—far different from sacking an FBI director, or even two, who went to some elite law schools and served at the upper levels of the Justice Department.
Then there’s the problem of capacity. FBI agents are actually very hard to replace—good ones are, anyway. The physical demands are significant. Most have specialized education of one sort or another. And while people often imagine FBI agents as glorified cops who kick doors down, the truth is that a lot of agents have exquisitely specialized expertise. The training of a good counterintelligence agent takes many years. Some agents have specialized scientific training. There are even agents who specialize in art theft. Take out a thousand FBI personnel for political reasons, and you destroy literally centuries of institutional capacity. A good FBI agent is much harder to create than, say, a good assistant U.S. attorney.
The confrontation with FBI has allowed accidental hero, Brian Driscoll (who is only serving as Acting Director as opposed to Acting Deputy Director because the White House made an error), has played this well, including by raising his own profile and the successes of the FBI.
That hasn’t stopped DOJ from demanding loyalty pledges, in the form of treating the mob that violently attacked cops and the Capitol as more patriotic than the cops themselves or the Members of Congress who did their duty — effectively (though WaPo doesn’t make this clear) forcing FBI agents to disavow treating a violent attack as a crime. But that, in turn, risks real backlash.
To be sure, there’s a lot of garbage that’s being dealt here. DOJ told Colleen Kollar-Kotelly that DOGE at that point only had read-only access to Treasury data (which Anna Bower recognized as an attempt to parse). But a footnote in the overnight filing in New York confesses that’s false.
Since January 20, 2025, one other Treasury employee—Marco Elez—had “read only” access to or copies of certain data in BFS payment systems, subject to restrictions, and access to a copy of certain BFS payments systems’ source code in a “sandbox” environment. Krause Decl. ¶ 11. Mr. Elez resigned on February 6, 2025 and returned all Treasury and BFS equipment and credentials the same day. Id.
That footnote cites Krause’s declaration. But the bit about the sandbox copy is not in the cited paragraph.
Since January 20, 2025, one other Treasury non-career employee—Marko Elez—had access to BFS payment systems and payment data covered by the order. Mr. Elez resigned on February 6, 2025, and returned all Treasury and BFS equipment and credentials the same day. Treasury staff have quarantined and disabled access to all devices and accounts used by this individual, which can now only be accessed by civil servants with a need for access to perform their job duties within the BFS who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations. Further, based on technical controls in place, BFS oversight of Mr. Elez’s work, instructions provided to Mr. Elez regarding proper data handling, and subsequent technical review of his activities, I currently have no reason to believe Mr. Elez retains access to any BFS payment data, source code, or systems. I am concerned that deleting the contents of these accounts and devices would violate Treasury’s document preservation duties in connection with related litigation entitled Alliance for Retired Americans, et al. v. Bessent, et al., Civil Action No. 25-0313 (CKK) (D.D.C.).
Similarly, an OPM suit may well prove that DOJ has misrepresented other claims to courts. And as the FBI lawsuits hung overnight, DOJ forced Driscoll to provide names of all the FBI Agents who worked on January 6 cases.
But these discrepancies may well be useful. At the very least, it provides cause for the AGs to insist that Krause appear before Judge Jeannette Vargas, the judge assigned to the case (who ordered the parties to try to clarify Saturday’s order) to explain what Elez was doing with his sandbox and why anyone should believe he hasn’t been rehired, somewhere, to play in his sandbox some more. That, in turn, would support the very cybersecurity arguments that various lawyers are trying to make. And it’ll advance the reporting already going on.
JD Vance might well like to simply ignore Engelmeyer’s order. Mike Davis might want Trump to appeal this immediately to SCOTUS. Trump might want to start siccing his mob on judges.
But there are good reasons to believe that that won’t happen, yet — at least not until Trump gets a few more of his national security and DOJ nominees through the Senate.
And until then, this legal process is a tool — a tool that can be used to buy time, but also a tool to use to hem in Trump’s mob.
Update: In RI, John McConnell issued what is likely the first, “no really, you have to follow my orders” order.
Update: DOJ has appealed McConnell’s order, even though it is not ripe.
Meanwhile DOJ has filed really long filings in DC in an attempt to persuade Carl Nichols to reverse his TRO in the USAID example, basically slandering unnamed professionals left and right. Things do look more dire, because Trump is basically refusing to fund blue states until SCOTUS tells him to–and maybe even not then. Meanwhile, Senate Republicans have simply capitulated to Trump’s insane nominees.
Update: Above I noted that DOJ needs career AUSAs to make these arguments, at least for a while.
Well, in the USAID case, those career AUSAs just had to cop to two, um, errors. The bigger one was the central dispute at the hearing last week: Whether USAID had only frozen prospective contracts, or all of them
Additionally, although Secretary Rubio’s January 24, 2025 directive only froze future contract obligations, id. ¶ 3, payments on existing contracts were paused as well as part of efforts by agency leadership to regain control of the organization’s spending and conduct a comprehensive review of its programs. See id. ¶¶ 5–10. Counsel for Defendants was unaware of this development prior to the hearing. [my emphasis]
This implies that Peter Marocco froze existing contracts without the authority of Marco Rubio. And he’s accusing USAID personnel of being insubordinate.
https://www.emptywheel.net/wp-content/uploads/2025/02/Screenshot-2025-02-09-at-20.43.02.png7141310emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-10 06:22:172025-02-10 19:10:51Rule of Law: Don’t Obey in Advance, But Also Don’t Give Up in Advance
The big news overnight in the legal fight to rein in DOGE is that SDNY Judge Paul Engelmayer has ordered Treasury to stop letting Elon Musk’s DOGE [sic] boys to snoop in Treasury’s payment system and destroy any copies of records already made from it. [docket]
the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems, if any;
This order comes on top of Judge Colleen Kollar-Kotelly’s order limiting access to Treasury’s payment system to normal employees and two DOGE [sic] employees, but the latter for read-only access [docket]:
Mr. Tom Krause, a Special Government Employee in the Department of the Treasury, as needed for the performance of his duties, provided that such access to payment records will be “read only”;
Mr. Marko Elez, a Special Government Employee in the Department of the Treasury, as needed for the performance of his duties, provided that such access to payment records will be “read only”;
Anna Bower parsed how DOJ substantiated (or not) that this was really “read only” access. Which was part of what a bunch of Democratic Attorneys General, led by Tish James, pointed to to claim they still needed a TRO, over and above the one issued by Kollar-Kotelly.
The temporary restraining order entered yesterday by the D.C. District Court in Alliance for Retired Americans v. Bessent, No. 1:25-cv-313 (D.D.C.) (“ARA”), does not change this conclusion. That order continues to permit two SGEs affiliated with DOGE to have access to the BFS payment records and payment systems, restricts their access to “read only” just for payment records and not payment systems, and does not direct that any copies of data from the systems made since the Agency Action took effect be destroyed. ARA, Dkt No. 13.
Now, I’m somewhat skeptical that Engelmeyer’s order, as issued, is sustainable. He issued the order in advance of the assigned judge on the case, Jeannette Vargas, and before the government had a chance to respond to the lawsuit.
But the lawsuits to enjoin DOGE [sic] are playing catch-up to the known facts.
And the known facts get us much closer to the being able to prove that Elon and his DOGE [sic] boys are altering code, if not hacking it, rather than simply reviewing its data.
The suit and TRO before Judge Kollar-Kotelly, filed by several unions, is entirely privacy focused.
The state AGs’ suit and TRO, which establish standing by pointing to the billions of dollars of payments they get from the Feds, argues that Elon is attempting to intercept payments to entities Trump doesn’t like. It asserts a claim repeatedly backed in public reporting, but affirmatively denied before Kollar-Kotelly: that the DOGE boys — here, self-proclaimed eugenicist Mark Elez, have altered code.
5. As of February 2, 2025, the President and Treasury Secretary, directed Treasury to grant expanded access to BFS payment systems to political appointees and “special government employees” for reasons that have yet to be provided, although one apparent purpose, upon information and belief. Upon information and belief, one purpose is to allow DOGE to advance a stated goal to block federal funds from reaching beneficiaries who do not align with the President’s political agenda. For example, DOGE was tasked with freezing payments issued by the U.S. Agency for International Development (“USAID”) and sought access to BFS payment systems to accomplish that goal.5 Virtually unfettered access to BFS payment systems was granted to at least one 25-year-old DOGE associate, Mark Elez, who, on information and belief, had the authority to view or modify numerous critical files.6 Indeed, reports indicate that Elez had administrative privileges over the BFS payment system’s code, giving him the ability to alter user permissions and “read and write” code—even if the associate had “read-only” access to the system’s data.7 Elez has since resigned from DOGE after being linked to racist social media posts.8
6. Around the same time that DOGE associates were unlawfully granted access to BFS systems, Mr. Musk began publicly stating his intention to recklessly freeze streams of federal funding without warning. On February 2, 2024, Mr. Musk posted on X (formerly Twitter), an online social media platform, that DOGE is “rapidly shutting down” various “illegal payments” made by the government to grant recipients, including payments to Lutheran Family Services to provide services to migrant children.9 That same day, Mr. Musk posted that his team “spent the weekend feeding USAID into the wood chipper.” Since then, Mr. Musk has unambiguously called for the cancellation of various streams of federal funding. For instance, on February 6, 2025, he alleged: “Billions of taxpayer dollars to known FRAUDULENT entities are STILL being APPROVED by Treasury. This needs to STOP NOW!”10 Mr. Musk has also made wild, unsubstantiated claims about the BFS payment system and suggested putting it on the blockchain.11
6 A 25-Year-Old With Elon Musk Ties Has Direct Access to the Federal Payment System | WIRED
9 Elon Musk on X: “The @DOGE team is rapidly shutting down these illegal payments” / X
10 Elon Musk on X: “Billions of taxpayer dollars to known FRAUDULENT entities are STILL being APPROVED by Treasury. This needs to STOP NOW!” / X
11 Fatima Hussein, “Elon Musk’s task force has gained access to sensitive Treasury payment systems, sources say,” PBS News, Feb. 2, 2025, https://www.pbs.org/newshour/politics/elon-musks-task-force-hasgained-access-to-sensitive-treasury-payment-systems-sources-say; Billy Bambrough, “‘This Needs To Stop Now’—Elon Musk Confirms Radical Doge U.S. Treasury Plan,” Forbes, Feb. 2, 2025, https://www.forbes.com/sites/digital-assets/2025/02/02/this-needs-to-stop-now-elon-musk-confirmsradical-doge-us-treasury-plan/.
It cites Elon’s insane rants on Xitter as well.
In addition to the privacy concerns addressed in the union lawsuit, the AGs’ lawsuit raises concerns about appropriations (and separation of powers), but also cybersecurity, something not included in the union lawsuit.
139. The conduct of DOGE members presents a unique security risk to States and State residents whose data is held by BFS, given that DOGE employees have already reportedly set up an unauthorized commercial server at another federal agency without a privacy impact assessment as required by the 2002 E-Government Act. Access by DOGE employees to BFS is likely to present even greater risks to the security and privacy of States’ and their residents’ data.
140. Unsecure data is susceptible to cyber attacks and identity theft. Identity theft has a significant impact on States, beyond the financial well-being of its residents. It strains law enforcement resources, damages state economies through lost productivity and consumer confidence, and raises costs for the state to redress fraudulent claims made from stolen identities for unemployment and healthcare benefits. [my emphasis]
The AGs’ suit actually doesn’t cite a source for the claim that DOGE set up a commercial server at another agency. But I think the claim comes from a lawsuit Kel McClanahan filed against Office of Personnel Management, aiming to require it to stop the all-government email DOGE [sic] set up to offer its “Fork in the Road” severance offer. McClanahan first sued, with two plaintiffs who worked at government agencies, on January 27, for a violation of the E-Government Act. [docket]
In response, the government claimed that the main theory of injury, that the government had set up the all-government email without first doing a privacy assessment didn’t apply for employees, and was moot because it had since done one, which it included here. The privacy assessment claimed this was just a Office365 account.
1.3. Has a system security plan been completed for the information system(s) supporting the project? The Office 365 mailbox has been granted an Authorization to Operate (ATO) that includes a system security plan. The government computer storing the data is subject to standard security requirements, including limited PIV access.
And it claimed that the account included only employee data.
2.1. Identify the information the project collects, uses, disseminates, or maintains. GWES collects, maintains, and uses the names and government email addresses of federal government employees. GWES also collects and redistributes responses to emails sent to those addresses, which are limited to short, voluntary, non-identifying information. Specifically, GWES contains the following:
Employee Contact Data: GWES collects, maintains, and uses the names and government email addresses of federal government employees. Other identifying information is not used.
Employee Response Data: After an email is sent using Employee Contact Data, GWES collects, maintains, and redistributes short, voluntary responses.
It largely ignored McClenahan’s claim (based largely on Reddit posts) that DOGE had installed a separate server.
But other than speculation on social media, Plaintiffs provide no evidence that OPM took any of the actions that would trigger the PIA requirement under sections 208(b)(1)(A)(i)-(ii) of the E-Government Act. Moreover, Plaintiffs disregard entirely the fact that the E-Government Act does not require a PIA when an agency is seeking to collect information about “agencies, instrumentalities, or employees of the Federal Government.”
Since then, McClanahan filed an amended complaint, which added five more plaintiffs, none of whom are Executive Branch employees (for example, one works for the Library of Congress; another is a contractor), substantiating that some of the DOGE emails went to people outside the Executive Branch, and provided additional substantiation of the Reddit claims (including raising questions about whether this could even be Microsoft365).
30. Furthermore, prior to 20 January 2025, OPM lacked the technical capacity to send direct communications to all Executive Branch employees: But just days before President Donald Trump’s inauguration, OPM did not have the capability to send a mass email of that scale, according to a person familiar with the matter. To send mass emails, the agency had used govDelivery, a cloud communications service provided by public sector IT company Granicus, a different person familiar said. The govDelivery contract had restrictions on the volume of emails available to send without incurring added costs, and the agency would not have been able to reach 2.3 million people, the approximate number of all civilian federal employees, the second person added. David DiMolfetta, OPM’s new email system sparks questions about cyber compliance Nextgov/FCW (Jan. 28, 2025), available at https://www.nextgov.com/digitalgovernment/2025/01/opms-new-email-system-sparks-questions-about-cybercompliance/402555/ (last accessed Feb. 3, 2025).
31. Additionally, OPM has used Microsoft Office 365 since at least 2021, including Outlook 365 for email. OPM, Privacy Impact Assessment for OPM – Microsoft Office 365 (May 13, 2021), available at https://www.opm.gov/information-management/privacy-policy/privacypolicy/office-365-pia.pdf (last accessed Feb. 3, 2025). Outlook 365 cannot send more than ten thousand emails per day. See Microsoft, Exchange Online limits (Dec. 11, 2024), at https://learn.microsoft.com/en-us/office365/servicedescriptions/exchange-online-servicedescription/exchange-online-limits#sending-limits-1 (last accessed Feb. 3, 2025).
32. According to the FedNews Message, “Instead [of using the normal channels], an on-prem (on-site) email server was setup [sic]. Someone literally walked into our building and plugged in an email server to our network to make it appear that emails were coming from OPM. It’s been the one sending those various ‘test’ message[s] [discussed below].” FedNews Message.
33. This statement is supported by recent reporting:
A new server being used to control these [OPM] databases has been placed in a conference room that Musk’s team is using as their command center, according to an OPM staffer. The staffer described the server as a piece of commercial hardware they believed was not obtained through the proper federal procurement process.
Caleb Ecarma & Judd Legum, Musk associates given unfettered access to private data of government employees Musk Watch (Feb. 3, 2025), at https://www.muskwatch.com/p/muskassociates-given-unfettered (last accessed Feb. 3, 2025).
34. Upon information and belief, this server and/or other systems linked to it are retaining information about every individual with a Government email address.
The amended complaint argues that the privacy impact was factually and legally insufficient.
39. Neither Biasini nor Hogan were OPM employees prior to 20 January.
40. Biasini worked at the Boring Company prior to 20 January. It is not currently known if he still works there.
41. Hogan worked at Comma.ai prior to 20 January. It is not currently known if he still works there.
42. The GWES PIA was both factually inaccurate and legally inadequate.
[snip]
54. Upon information and belief, OPM has not ensured review of a PIA for any of these systems by any legally sufficient Chief Information Officer or equivalent official.
55. OPM has not published a legally sufficient PIA or made such an assessment available for public inspection for any of these systems.
In other words, as these twin lawsuits against Treasury get closer to arguing that Elon is not looking for savings but instead altering the payment system, McClanahan continues to chase proof that Elon’s DOGE [sic] boys have added their own server which, by dint of sending emails to everyone (including people not employed by the Executive branch) with a .gov address, is collecting information on everyone with a .gov address.
Meanwhile, several other developments get closer to showing that Elon is hacking the government, not assessing it.
First, late this week, OPM removed access by some DOGE [sic] boys to more sensitive OPM systems.
Directives from the agency’s interim leadership issued late this week indicated that DOGE representatives should be withdrawn from two principal systems containing personally identifiable information for millions of federal employees, according to communications reviewed by The Post and people familiar with the developments who spoke on the condition of anonymity because of the matter’s sensitivity.
Those systems are called Enterprise Human Resources Integration and Electronic Official Personnel Folder. They hold sensitive information about employees of most federal agencies, including addresses, demographic profiles, salary details and disciplinary histories.
The Post reported Thursday morning that DOGE agents had gained access to those systems along with “administrative” access to OPM computer systems. That allowed them sweeping authority to install and modify software on government-supplied equipment and, according to two OPM officials, to alter internal documentation of their own activities.
Meanwhile, both Wired and WaPo have stories describing how a Booz Allen analyst described the DOGE [sic] access as an ““unprecedented insider threat risk;” the analyst was promptly fired.
The review, delivered Monday to Treasury officials by a contractor that runs a threat intelligence center for Treasury’s Bureau of the Fiscal Service, said that DOGE’s access to the payment network should be “immediately” suspended. It also urged Treasury to scour the payments system for any changes approved by affiliates of DOGE, which is overseen by billionaire Elon Musk, the correspondence shows. DOGE stands for Department of Government Efficiency.
A Treasury employee told The Post that the threat center is run by Booz Allen Hamilton, a large federal contractor. The company confirmed it runs the threat center, which it said is embedded within Treasury.
Late Friday, after this article appeared, Booz Allen said it had “removed” a subcontractor who wrote the warning and would seek to retract or amend it. “The draft report was prepared by a subcontractor to Booz Allen and contained unauthorized personal opinions that are not factual or consistent with our standards,” company spokesperson Jessica Klenk said. Booz Allen won more than $1 billion in multiyear U.S. government contracts last year.
In a separate communication a week ago, a high-ranking career official at Treasury also raised the issue of risks from DOGE access in a memo to Treasury Secretary Scott Bessent, including the potential breach of information that could lead to exposure of U.S. spies abroad, according to five people with knowledge of the matter, who spoke on the condition of anonymity to reflect government deliberations. The memo included recommendations to mitigate risks, which Bessent approved, said another person familiar with the matter, who also spoke on the condition of anonymity.
And while the focus at Treasury has been on eugenicist Marko Elez, whom Elon has pushed to be reinstated, closer scrutiny into Edward “Big Balls” Coristine — who is at OPM and possibly HHS — has described he has ties to hackers. Brian Krebs, who was targeted by some people in that crowd, described screen shots that suggest Coristine may have been fired for leaking internal documents to a competitor.
Wired noted that Coristine only worked at Path for a few months in 2022, but the story didn’t mention why his tenure was so short. A screenshot shared on the website pathtruths.com includes a snippet of conversations in June 2022 between Path employees discussing Coristine’s firing.
According to that record, Path founder Marshal Webb dismissed Coristine for leaking internal documents to a competitor. Not long after Coristine’s termination, someone leaked an abundance of internal Path documents and conversations. Among other things, those chats revealed that one of Path’s technicians was a Canadian man named Curtis Gervais who was convicted in 2017 of perpetrating dozens of swatting attacks and fake bomb threats — including at least two attempts against our home in 2014.
And Krebs provides chatlogs showing some of Coristine’s former associates are taking notice.
The Com is the English-language cybercriminal hacking equivalent of a violent street gang. KrebsOnSecurity has published numerous stories detailing how feuds within the community periodically spill over into real-world violence.
When Coristine’s name surfaced in Wired‘s report this week, members of The Com immediately took notice. In the following segment from a February 5, 2025 chat in a Com-affiliated hosting provider, members criticized Rivage’s skills, and discussed harassing his family and notifying authorities about incriminating accusations that may or may not be true.
Bloomberg matched Krebs’ reporting on the reason for Coristine’s firing from Path.
“Edward has been terminated for leaking internal information to the competitors,” said a June 2022 message from an executive of the firm, Path Network, which was seen by Bloomberg News. “This is unacceptable and there is zero tolerance for this.”
A spokesperson for the Arizona-based hosting and data-security firm said Thursday: “I can confirm that Edward Coristine’s brief contract was terminated after the conclusion of an internal investigation into the leaking of proprietary company information that coincided with his tenure.”
Afterward, Coristine wrote that he’d retained access to the cybersecurity company’s computers, though he said he hadn’t taken advantage of it.
“I had access to every single machine,” he wrote on Discord in late 2022, weeks after he was dismissed from Path Network, according to messages seen by Bloomberg. Posting under the name “Rivage,” which six people who know him said was his alias, Coristine said he could have wiped Path’s customer-supporting servers if he’d wished. He added, “I never exploited it because it’s just not me.”
Bloomberg tied Coristine’s past even more closely to organized abuse campaigns.
JoeyCrafter was a member of Telegram groups called “Kiwi Farms Christmas Chat” and “Kiwi Farms 100% Real No Fake No Virus,” both referencing an online forum known for harassment campaigns. Typically, the site has been used to share the personal information of a target, encouraging others to harass them online, in-person, over the phone or by falsely alerting police to a violent crime or active shooter incident at their home.
This is the kind of DOGE boy Elon has thrown at government networks — and thus far, Republicans don’t seem to give a damn that Trump has given these DOGE [sic] boys access to data on virtually all Americans, employee or no.
One thing is clear, however: There’s not a shred of evidence these boys are doing what Elon claims they’re doing.
Most of these new facts — the seeming proof that OPM isn’t doing what it claimed, the insider threat warning, the ties to hackers — are not in the AGs’ suit. And by the time the suits catch up to the facts, the complaints may look quite different.
Update: Corrected that none of the OPM plaintiffs are employees of US Courts (though they did get an email).
https://www.emptywheel.net/wp-content/uploads/2025/02/Screenshot-2025-02-08-at-14.21.47.png992896emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-02-08 14:09:402025-02-08 16:46:59It’s Still Not Clear Whether Elon’s DOGE Boys Are Reviewing, Taking, or Altering Government Networks
