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Trump Has No Policy Process, Just Wormtongue and Palace Intrigue

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The last paragraph of this NYT story describing absolutely insane plans for the State Department -“eliminating almost all of its Africa operations,” “cutting offices … that address climate change[,] refugee issues, … democracy[,] and human rights concerns,” mandating use of AI for “‘policy development and review’ and ‘operational planning’,” and replacing the Foreign Service exam with loyalty oaths — describes that the Executive Order laying out those plans is not the only proposed plan out there.

It links this story, published by NYT five days earlier, describing more modest plans: closing six embassies in Africa, not the entire continent.

The Trump administration is considering plans to close 10 embassies and 17 consulates and reduce or consolidate the staff of several other foreign missions, according to an internal State Department memo viewed by The New York Times.

The closures and other reductions outlined in the document, which is undated, would pare back the American presence on nearly every continent. They represent an expansion of plans the Trump administration was working on earlier this year for closing a dozen foreign missions and laying off local staff who work in those locations.

The cuts are in keeping with President Trump’s plans to reduce federal spending across the government, as well as a proposal that State Department leaders have been considering to cut nearly 50 percent of the department’s spending.

But the new proposed reductions have raised fresh concerns that the United States will be ceding vital diplomatic space to China, including in areas of the world where Washington has a greater presence than Beijing, compromising American national security, including intelligence gathering.

The competing plans — one a memo, the other an Executive Order that would be signed by Trump and would therefore oblige memo-writers to defer to Trump’s order — comes in the wake of the ouster of Pete Marocco, the Jan6er who effectuated the destruction of USAID, from the State Department.

There are several versions of Marocco’s ouster and his fate, but this Politico story describes that Marco Rubio fired him, in part because of differing opinions about how to destroy USAID (which has long since been accomplished, but during which, Rubio repeatedly made claims about GOP-supported programs like PEPFAR that turned out to be false).

Peter Marocco, the Trump administration official in charge of dismantling USAID, left a meeting at the White House last week to return to his office at the State Department. But when he arrived, Marocco could not enter the building: security told him he was no longer an employee there, according to a person familiar with the situation.

Word of Marocco’s firing quickly tore through the Republican Party and MAGA ecosystem, startling President Donald Trump’s loyalists who viewed the aide as part of an elite cohort of administration true believers. Loud voices on the right piled on Secretary of State Marco Rubio, accusing him of undermining their disruptive agenda.

Yet Marocco’s abrupt termination, which has not been fully reported until now, was not an impulsive dismissal or a case of Rubio going rogue. This report was based on conversations with five people, including administration officials and allies, all of whom were granted anonymity to discuss sensitive internal matters. Four of the people said Rubio fired Marocco. They gave varying explanations: one administration official said Rubio and others wanted Marocco out due to what they saw as his bulldozer operating style and failure to work effectively with colleagues; others pointed to substantive disagreements between Rubio and Marocco over how to dismantle USAID. Meanwhile, Marocco allies viewed Rubio and his team as insular, controlling and obstructionist to the DOGE agenda ordered by the president.

One White House official said Rubio went to a senior White House aide for clearance to remove Marocco after tensions reached a boiling point last week. They described Marocco’s firing as “the first MAGA world killing from inside the White House.”

It also describes the backlash targeting Rubio that has resulted.

In the days since his ouster, Marocco’s MAGA allies have come to his defense and raised new suspicions of Rubio, including questions about why he would want to protect USAID and whether he’s loyal to the president.

[snip]

“He’s really not a MAGA guy, he’s a neocon,” a Trump ally said of Rubio, adding that this move “is gonna bite him.”

This is the third instance of an ugly cabinet-level dispute in the Trump Administration in recent weeks.

NYT’s account of Gary Shapley’s installment to head the IRS, without Scott Bessent’s involvement, followed by his removal at the hands of Bessent, incorporates several pieces of intrigue. First, there’s Shapley’s installment by Musk and then Bessent’s reversal of Musk’s plot.

Mr. Bessent had complained to Mr. Trump this week that Mr. Musk had done an end run around him to get Mr. Shapley installed as the interim head of the I.R.S., even though the tax collection agency reports to Mr. Bessent, the people familiar with the situation said. They spoke on the condition of anonymity to discuss private conversations.

The clash was the latest instance of Mr. Musk’s influence in the Trump administration that has alarmed top officials. It was also the latest upheaval at the tax agency, with much of its staff pushed out or quitting. Mr. Trump earlier this week called for the I.R.S. to revoke Harvard University’s tax-exempt status after the school refused to impose sweeping changes demanded by the administration.

An I.R.S. spokeswoman declined to comment on the leadership changes.

Mr. Shapley, a longtime I.R.S. agent, gained fame among conservatives after he claimed that the Justice Department had slow-walked its investigation into Hunter Biden’s taxes.

Mr. Musk’s Department of Government Efficiency pushed Mr. Shapley’s appointment through White House channels, but Mr. Bessent was not consulted or asked for his blessing, according to those with knowledge of the dynamic. Mr. Bessent then got Mr. Trump’s approval to unwind the decision within days, they said. Mr. Shapley had been working from the I.R.S. commissioner’s office as late as Friday morning.

Then, there’s Musk’s magnification of Laura Loomer’s attack on Bessent in response.

The feud between Mr. Musk and Mr. Bessent went public late Thursday night, when Mr. Musk amplified a social media post from the far-right researcher Laura Loomer accusing Mr. Bessent of colluding with a “Trump hater.”

“Troubling,” Mr. Musk wrote about Mr. Bessent’s meeting John Hope Bryant, the chief executive of the nonprofit Operation HOPE. Mr. Bryant is working on a financial literacy effort with Treasury officials.

Ms. Loomer had called that meeting a “vetting failure.”

Finally, there’s an oblique comment about DOGE boy Gavin Kliger’s removal on the same day as Shapley, one that WaPo describes in more detail: Kliger was shut out of IRS systems just as he was about to start a purge of IRS employees in the middle of tax season.

Early Friday morning, the IRS rescinded building and systems access for DOGE official Gavin Kliger, according to the people familiar with the situation. The Post could not immediately confirm the reason for the revocation.

Kliger was managing the massive layoffs at the agency that could cut the tax agency’s headcount by 25 percent. More layoff notices had been planned for Friday afternoon, the people said, but those notifications have been paused.

As laid out in declarations from USAID workers, Kliger left his digital fingerprints all over Marocco’s dismantling of USAID.

Left unsaid is whether Musk installed Shapley so as to empower Kliger to destroy the IRS just as it sets to processing this year’s tax receipts.

Thus far, we have correlation, without any insight into causation.

The far right targeting of Bessent is of particular concern, given the evidence he’s holding together the US (and with it, the global) economy with his own shoestrings. WSJ reported this week that he and Howard Lutnick had to sneak into the Oval Office to override Peter Navarro’s disastrous tariff plans.

On April 9, financial markets were going haywire. Treasury Secretary Scott Bessent and Commerce Secretary Howard Lutnick wanted President Trump to put a pause on his aggressive global tariff plan. But there was a big obstacle: Peter Navarro, Trump’s tariff-loving trade adviser, who was constantly hovering around the Oval Office.

Navarro isn’t one to back down during policy debates and had stridently urged Trump to keep tariffs in place, even as corporate chieftains and other advisers urged him to relent. And Navarro had been regularly around the Oval Office since Trump’s “Liberation Day” event.

So that morning, when Navarro was scheduled to meet with economic adviser Kevin Hassett in a different part of the White House, Bessent and Lutnick made their move, according to multiple people familiar with the intervention.

They rushed to the Oval Office to see Trump and propose a pause on some of the tariffs—without Navarro there to argue or push back. They knew they had a tight window. The meeting with Bessent and Lutnick wasn’t on Trump’s schedule.

The two men convinced Trump of the strategy to pause some of the tariffs and to announce it immediately to calm the markets. They stayed until Trump tapped out a Truth Social post, which surprised Navarro, according to one of the people familiar with the episode. Bessent and press secretary Karoline Leavitt almost immediately went to the cameras outside the White House to make a public announcement.

And multiple outlets have described Bessent’s thus far successful efforts to prevent Trump from firing Jerome Powell.

Treasury Secretary Scott Bessent has repeatedly cautioned White House officials that any attempt to fire Federal Reserve Chair Jerome Powell would risk destabilizing financial markets, according to two people close to the White House granted anonymity to share details of private discussions.

Bessent’s private message reinforces what President Donald Trump already knows but comes as the president’s anger with the Fed chair is growing because Powell hasn’t shown signs that he will cut interest rates soon. It also comes against the backdrop of widespread market turmoil over the administration’s far-reaching trade war.

Trump’s fury with Powell burst into public view on Thursday morning, when he said in a post on Truth Social that his “termination cannot come fast enough!”

But Powell’s job looks safe for now.

Bessent is a mediocre Treasury Secretary, in no way the match for his counterparts. Yet he is increasingly all that’s standing between Trump and his most feverish nutjobs and far bigger financial catastrophe.

Given Loomer’s success firing NSA Director Timothy Haugh and six NSC staffers, it may be only a matter of time before the nutjobs get to Bessent, too.

The third cabinet level blowup is more opaque. As laid out here, three of Whiskey Pete Hegseth’s top aides were escorted out of the Pentagon in the wake of a leak investigation. Politico reported that they were fired — passive voice — on Friday, but the guy who led the investigation used to explain their ouster is also leaving his current role.

Joe Kasper, Defense Secretary Pete Hegseth’s chief of staff will leave his role in the coming days for a new position at the agency, according to a senior administration official, amid a week of turmoil for the Pentagon.

Senior adviser Dan Caldwell, Hegseth deputy chief of staff Darin Selnick and Colin Carroll, the chief of staff to Deputy Defense Secretary Stephen Feinberg, were placed on leave this week in an ongoing leak probe. All three were terminated on Friday, according to three people familiar with the matter, who, like others, were granted anonymity to discuss a sensitive issue.

[snip]

Two of the people said Carroll and Selnick plan to sue for wrongful termination. The Pentagon did not respond to a request of comment.

Kasper had requested an investigation into Pentagon leaks in March, which included military operational plans for the Panama Canal, a second carrier headed to the Red Sea, Musk’s visit and a pause in the collection of intelligence for Ukraine.

But some at the Pentagon also started to notice a rivalry between Kasper and the fired advisers.

“Joe didn’t like those guys,” said one defense official. “They all have different styles. They just didn’t get along. It was a personality clash.”

The changes will leave Hegseth without a chief of staff, deputy chief of staff, or senior adviser in his front office.

“There is a complete meltdown in the building, and this is really reflecting on the secretary’s leadership,” said a senior defense official. “Pete Hegseth has surrounded himself with some people who don’t have his interests at heart.” [my emphasis]

Some of those targeted — who have long-standing ties to Hegseth, going back to his failed non-profit management — are denying any role in leaks.

Whatever the genesis of this upheaval or the partisan explanation for it, it leaves a wildly unqualified man at the top of the world’s largest military with no top aides.

There are other signs of the collapse of all management inside the White House — such as the White House attempt to explain away their attack on Harvard with a bullshit claim that they accidentally sent out a letter demanding to effectively take over Harvard University.

Everywhere you look you have to wonder whether Susie Wiles is as much in charge as Amy Gleason is at DOGE, whether her title of Chief of Staff is just a convenient fiction to cover up for the reality that Trump does whatever the last person in the room tells him to do.

And often as not, the last person in the room is Stephen Miller.

We’ve already seen that the three cabinet secretaries struggling to assert control over their own agencies deferred to Stephen Miller when he told the participants of the famous Signal chat what Trump thought.

That is, it’s not just that Stephen Miller is often the last one in the room with Trump. It’s not just that Stephen Miller’s policy ideas are batshit insane (and that he’s the author of Trump’s most egregious abuses of power). It’s also that Miller often stands in as the Word of DOGE, the Word of Trump.

Kremlinologists are pointing to evidence — his demotion at Trump’s most recent cabinet meeting, for example — that Elon’s power at the White House has started to wane (while ignoring that Elon has moved onto the next phase of takeover, cashing in, cashing in, and cashing in).

But behind all the intrigue, Stephen Miller’s ascendance remains, apparently uncontested and possibly unbound.

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Why Did Donald Trump Free Someone He Purports To Be a Dangerous Terrorist?

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Donald Trump, Nayib Bukele, and Kristi Noem love to make fascist spectacle.

They did it with the video showing the arrival of hundreds of people Trump sent to Bukele’s concentration camp. Noem did it with her visit to the camp. And they did it with the planned theater yesterday, including the staged hot mic moment where Trump told Bukele he wanted to send “homegrowns” to the concentration camp at CECOT.

They do it because fascist spectacle inspires fear. They do it because fascist spectacle goes viral, including with the help of data mules who purport to oppose its content.

They do it because it short circuits rational thought, overwhelming such rational thought with emotion.

The effect of yesterday’s fascist spectacle led virtually everyone to focus on a detail that won’t help the immediate fight before us — Trump’s interest in deporting “homegrowns,” an interest he has stated openly over and over, starting during campaign — rather than on details that might help Kilmar Abrego Garcia, and in the process help to prevent similar treatment of other migrants and, ultimately, American citizens.

Few people raised any of the questions posed by Trump’s latest attempt to retcon a legal case he already blew. Let’s start with the big one:

Why did Trump free someone, Abrego Garcia, whom Stephen Miller insists is a dangerous terrorist?

The latest theory about Abrego Garcia — one DOJ first rolled out at the Fourth Circuit — is that when the Trump Administration designated MS-13 a foreign terrorist organization earlier this year, it meant Abrego Garcia was no longer eligible for the withholding of removal granted to him in 2019.

It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador, given his claims about threats from a different gang. Final Removal Order 7–10. That conclusion was dubious then (and increasingly so now). But it has become totally untenable, given the Secretary of State’s designation of MS-13 as a Foreign Terrorist Organization in February. 90 Fed. Reg. at 10030–31.

As a result of that designation, and Abrego Garcia’s membership in that terrorist organization, he would no longer be eligible for withholding relief under the federal immigration laws. 8 U.S.C. §§ 1231(b)(3)(B)(iv); 1227(a)(4)(B). And as even Plaintiffs admit, the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection. See Reply 8. To be sure, the Government did not avail itself of that procedure in this case. But through the lens of the public interest, the district court’s stunning injunction does not fit that error. A mistake of process does not warrant the unprecedented remedy ordered—one that demands the return of a foreign terrorist from the foreign sovereign that agreed to take him.

Before this claim, DOJ barely mentioned two earlier rulings from 2019 (one two) asserting Abrego Garcia could not be released because of hearsay ties to MS-13, relying instead on procedural arguments. In a footnote, Judge Xinis ruled that DOJ did not rely on it before her.

Defendants did not assert—at any point prior to or during the April 4, 2025, hearing—that Abrego Garcia was an “enemy combatant,” an “alien enemy” under the Alien Enemies Act, 50 U.S.C. § 21, or removable based on MS13’s recent designation as a Foreign Terrorist Organization under 8 U.S.C. § 1189. Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court. In any event, Defendants have offered no evidence linking Abrego Garcia to MS-13 or to any terrorist activity. And vague allegations of gang association alone do not supersede the express protections afforded under the INA, including 8 U.S.C. §§ 1231(b)(3)(A), 1229a, and 1229b.

As Judge Stephanie Thacker noted in the Fourth Circuit opinion denying a stay the government thereby could not raise it before her.

Finally, I turn to the Government’s assertion that the public interest favors a stay because Abrego Garicia is a “prominent” member of MS-13 and is therefore “no longer eligible for withholding relief.” Mot. for Stay at 14–15. Whatever the merits of the 2019 determination of the Immigration Judge (“IJ”) regarding Abrego Garcia’s connection to MS-13,8 the Government presented “[n]o evidence” to the district court to “connect[] Abrego Garcia to MS-13 or any other criminal organization.” Dis.t Ct. Op. at 22 n.19; see also id. at 2 n.2 (“Invoking such theories for the first time on appeal cannot cure the failure to present them before this Court.”). Indeed, such a fact cannot be gleaned from this record, which shows that Abrego Garcia has no criminal history, in this country or anywhere else, and that Abrego Garcia is a gainfully employed family man who lives a law abiding and productive life. Tellingly, the Government “abandon[ed]” its position that Abrego Garcia was “a danger to the community” at the hearing before the district court. Dist. Ct. Op. at 22 n.19. The balance of equities must tip in the movant’s favor based on the record before the issuing court. An unsupported — and then abandoned — assertion that Abrego Garcia was a member of a gang, does not tip the scales in favor of removal in violation of this Administration’s own9 withholding order. If the Government wanted to prove to the district court that Abrego Garcia was a “prominent” member of MS-13, it has had ample opportunity to do so but has not — nor has it even bothered to try.

The Government’s argument that there is a public interest in removing members of “violent transnational gangs” from this country is no doubt true, but it does nothing to help the Government’s cause here. As noted, the Government has made no effort to demonstrate that Abrego Garcia is, in fact, a member of any gang, nor did the Government avail itself of the “procedural mechanism under governing regulations to reopen the immigration judge’s prior order[] and terminate its withholding protection.” Mot. for Stay at 16–17. The Government may not rely on its own failure to circumvent its own ruling that Abrego Garcia could not be removed to El Salvador.

8 Even then, the Government’s “evidence” of any connection between Abrego Garcia and MS-13 was thin, to say the least. The Government’s claim was based on (1) Abrego Garcia “wearing a Chicago Bulls hat and hoodie,” and (2) “a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.” S.A. 146 n.5; Mot. for Stay Add. at 10–11.

9 Of note, the IJ’s 2019 decision, which granted Abrego Garcia withholding of removal to El Salvador pursuant to 8 U.S.C. § 1231(b)(3)(A) because he faced threats to his life from an El Salvadoran gang that had targeted him and his family, was during President Trump’s 2016–2020 term in office. That decision became final on November 9, 2019, and was not appealed by this Administration.

But let’s take this retcon on its face. Stephen Miller has now decided, with no evidence provided, that Abrego Garcia is a “prominent” leader of MS-13, a gang on which DOJ focused closely for the entirety of the first Trump Administration. Miller says that Abrego Garcia is a danger to the community. Miller keeps screeching about terrorism.

If what Miller is saying now is true, it means that Trump released a dangerous criminal back in 2019. Why did Trump leave this man on the street to do dangerous things like raising three American citizen children for six years?

Update: Roger Parloff has a good summary of the flimsy case that Abrego Garcia has ties to MS-13.

Why is Trump so weak that he can’t make requests of the dictator of a small country?

Next consider Pam Bondi’s claim that, notwithstanding public reports that the detainees are just being held in CECOT for a year, notwithstanding Kristi Noem’s visit to the concentration camp, notwithstanding that the government just sent another ten people down there, the government is helpless to get Abrego Garcia back.

What does this say about Trump’s weakness as a President?

What kind of weak ass man can’t even make a request of a small Central American nation?

How does Trump think he’ll negotiate with Xi Jinping if he can’t even make a simple request of Bukele?

Will Stephen Miller send adjudged terrorists like Stewart Rhodes and Joe Biggs to Bukele’s concentration camp? Will Miller send DC US Attorney Ed Martin there, for palling around with adjudged terrorist Kelly Meggs, the same kind of associational ties used to send at least one of the men on the flights on March 15 to CECOT?

Next, let’s take Trump at his word that he wants to send “homegrowns” to CECOT.

Should Stewart Rhodes and Joe Biggs — both adjudged to be terrorists, both radicalized in the United States — both be packing their bags for the concentration camp? If Ed Martin has been palling around with adjudged terrorist Kelly Meggs — the same kind of associational guilt used to send at least one of the Venezuelans in the March 15 flight — should he worry about packing his bags?

Will Stephen Miller send his terrorists to the concentration camp?

Is Miller using the designation of terrorism just as a way to criminalize brown people, or will he send terrorists from his own tribe to the concentration camp?

Why is Stephen Miller terrified of — why does he want you to be terrified of — loving fathers? 

Miller has been accusing journalists who describe the contributions Abrego Garcia has made as a loving father to three American citizen children of lying, because journalists refuse to repeat his bleated accusations of terrorism with no evidence. Miller and Pam Bondi are working hard to get people to dumbly adopt their accusations.

But why is Miller so afraid of journalists describing Abrego Garcia as what he is, a father from Maryland?

Why does Pam Bondi keep destroying the careers of DOJ attorneys because they tell the truth?

When DOJ decided to retcon this case, they scapegoated the lawyer from whom they had withheld any sound legal basis, Erez Reuvani, along with his supervisor, both of whom were put on leave.

This, in spite of the fact that Drew Ensign called Reuveni “top notched” when he promoted him just weeks earlier.

In a March 21 email announcing Mr. Reuveni’s promotion to acting deputy director of the department’s Office of Immigration Litigation, his boss, Drew C. Ensign, lauded him for working on cases filed against sanctuary cities accused of defying federal immigration laws, and for generally helping to expand the department’s litigation activities.

“I want to thank those who submitted interest for the acting positions — we had outstanding choices, which helps go to show the excellent caliber of our team,” Mr. Ensign wrote.

Mr. Ensign has been handling a separate immigration case, one in which he has been defending the Trump administration’s use of a rarely invoked wartime law, the Alien Enemies Act, to summarily deport scores of Venezuelan migrants accused of belonging to the street gang Tren de Aragua.

As DOJ has provided increasingly contemptuous updates to Judge Xinis, the AUSA who had appeared before her, Tarra DeShields, has backed off vouching for the arguments DOJ has made, instead listing her involvement as “fil[ing]” updates.

Finally, Ensign filed a notice of appearance and, apparently, took on this dogshit argument himself, as he did the Alien Enemies Act before Judge Boasberg.

Obviously, even committed immigration lawyers are unwilling to make these arguments. How many career attorneys will Pam Bondi chase away while floating these arguments?? How many careers will she destroy because the actions of the Trump administration have no defense in the law?

Has Bondi’s DOJ lost all presumption of regularity?

And the whole process of admitting fault, suspending the person who (along with several others) told that truth, and then inventing new theories after the fact has to start destroying the entire concept of presumption of regularity for DOJ.

Even before DeShields started getting cold feet, even before Stephen Miller started disclaiming the error that everyone has admitted, Ben Wittes raised this question: At what point are judges entitled to demand proof from DOJ lawyers for their claims?

Will Xinis demand that DOJ document their new theory that Trump’s terrorist designations retroactively make judge’s orders disappear?

Would Marco Rubio deport his own grandfather to a concentration camp if Stephen Miller told him to?

Abrego Garcia’s story — of a man who came to the US to seek a better life without proper paperwork, but who was allowed to stay and build a life — is not all that different from the story of Marco Rubio’s own grandfather, who was almost denied entry in part because of suspicions he had communist sympathies and even then only allowed to stay as a parolee.

It had been almost three years since he had last set foot in the United States, and he no longer had the proper credentials to enter. They told him he could stay for the time being, but if he wanted to avoid deportation, he would have to plead his case.

“I always thought of being here in the United States as a resident, living permanently here,” the slight 62-year-old grandfather, speaking through an interpreter, said at a hearing five weeks later. He said that he had previously returned to Cuba because he did not want to be a burden on his family in the United States, but that the Cuban government had grown too oppressive and he feared what might happen if he stayed.

The immigration officer was unmoved. He did not see an exiled family man — just someone who had no visa, worked for the Castro government and could pose a security risk.

“It is ordered that the applicant be excluded and deported from the United States,” he said matter-of-factly, according to an audio recording of the proceedings stored by the National Archives. He stopped to ask if Mr. Garcia understood.

“Yes, I do,” Mr. Garcia said plaintively.

That easily could have been the end of his American story. But someone in the immigration office on Biscayne Boulevard that day — the paperwork does not make clear exactly who or why — had a change of heart. Mr. Garcia was granted status as a parolee, a gray area of the law that meant he would not get a green card but could remain in the United States.

[snip]

Despite Mr. Garcia’s insistence that he was fleeing oppression, immigration officials raised suspicions that he might harbor communist sympathies, the records reveal. That charge, had they pursued it, could have led to a conclusion that he was a national security threat. (Details of Mr. Garcia’s immigration odyssey were reported in 2012 by Manuel Roig-Franzia in his book “The Rise of Marco Rubio.”)

In an interview, Mr. Rubio acknowledged that some would see a conflict between the stricter immigration and refugee policies he supports and his grandfather’s experience. Immigration records also show that other members of Mr. Rubio’s family — two aunts and an uncle — were admitted as refugees.

But Mr. Rubio said the difference between then and now is how much more sophisticated foreign infiltrators like the Islamic State have become, and how dangerous they are.

“I recognize that’s a valid point,” the senator said, “But what you didn’t have was a widespread effort on behalf of Fidel Castro to infiltrate into the United States killers who were going to detonate weapons and kill people.”

Last month, Trump announced the cessation of various parole programs, including a recent one including Cubans, effective on April 24. Which means, within days, Cubans could be among the Hispanic migrants that Stephen Miller packages up to send to Bukele’s concentration camp.

How many Cubans will Marco Rubio send away to a concentration camp? How many lives like Rubio’s own will the Secretary of State doom with his enthusiasm to send send loving fathers to concentration camps?

For too long Trump’s lefty opponents (liberals and progressives and those further left; anti-Trump Republicans are, in my opinion, actually far better at this) have largely failed to make Trump’s fascism a political problem. And while lawyers have done a great job of humanizing their clients — including Abrego Garcia — in public opinion, the rest of it, the contradictions and confessions of pathetic weakness, has largely gone unmentioned.

Do not abdicate making Abrego Garcia a political, as well as a legal, case. Do not get distracted by the fascist spectacle from using the fragile story rolled out yesterday against Trump. The stakes in this moment are too high.

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Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

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The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.

First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.

Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).

I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.

The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.

I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.

Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.

As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.

So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.

Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.

This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.

Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)

Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.

The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.

As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4

3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).

4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]

With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)

I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.

That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.

The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.

5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.

Indeed, Sauer did just that.

In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44

Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.

The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.

Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.

Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.

Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.

Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.

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Kristi Noem Invokes State Secrets to Cover-Up Her Inability to ID Women as Women

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One of the transphobic right wing’s most annoying taunts is that Democrats can’t decide whether women are women. It is central to the long-running campaign to demonize trans people to claim that birth sex, which transphobes claim is a person’s true and immutable sex, is always immediately apparent.

Yet yesterday, Kristi Noem invoked State Secrets to cover-up the fact that she — and the agencies she runs — were unable to identify women as women. DOJ included Noem’s declaration as part of package invoking State Secrets in the Alien Enemies Act lawsuit yesterday.

The declarations, in general, are ridiculous given filings submitted by ACLU earlier yesterday.

Both Rubio and Noem’s declarations include language claiming that official acknowledgement of details of the deportation flights — the kinds of details Judge James Boasberg might use to hold them in contempt — is different than, “assumptions, speculation, public investigation, or informal statements.” This, mentioning “informal” reports or statements five times, is from Noem’s declaration:

Disclosure of the information sought in the Court’s Minute Order would cause significant harm to the United States’ national security even assuming some of that information has already entered public sources as a result of assumptions, speculation, public investigation, or informal statements. It is both true and well known that official acknowledgement of a fact may be damaging to national interests in a way that informal suggestions or speculation about that information is not. If the government were to confirm or deny the information sought by this Court’s Minute Order, there would arise a danger that enemies of our national security would be able to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct.

[snip]

There is a difference between official acknowledgement and informal reports: Official disclosures or acknowledgements threaten the United States’ national security interests in a way that informal reports or statements do not, because informal statements leave an important element of doubt that provides an essential layer of protection and confidentiality. That protection would be lost if the United States were forced to confirm or deny the accuracy of unofficial disclosures or speculation. [my emphasis]

But the plaintiffs’ declaration notes that after Nayib Bukele posted a propaganda video showing three planes that had brought detainees to El Salvador, with tail numbers visible, both Trump and Rubio effectively ratified by reposting the video.

In addition, public information shows that two planes were still in the air when the Court issued both its oral and written Orders. Most significantly, based on information publicized by U.S. government officials and publicly available flight data, at least two flights took off during the hearing on March 15—one at 5:26pm EDT and the other at 5:45pm EDT—and landed well after this Court’s written Order had been filed. See Pls. Resp. to Defs. Notice (ECF No. 21); see also Joyce Sohyun Lee and Kevin Schaul, Deportation Flights Landed after Judge Said Planes Should Turn Around, Wash. Post (Mar. 16, 2025). 2 And the video released by President Bukele that shows Plaintiff class members being hauled off the planes in El Salvador includes each plane’s tail number.3 That video was then reposted by both President Trump4 and Secretary of State Rubio.5

2 https://www.washingtonpost.com/immigration/2025/03/16/deportation-flights-trump-elsalvador [https://perma.cc/Q6NH-ATY8]

3 https://x.com/nayibbukele/status/1901245427216978290 [https://perma.cc/BM73-547H].

4 https://truthsocial.com/@realDonaldTrump/posts/114173862724361939 [https://perma.cc/67LY-FREW].

5 https://x.com/SecRubio/status/1901252043517432213 [https://perma.cc/RXH4-XH4R].

The Xitter post from Rubio, using his official Secretary of State Xitter account, specifically says, “Thank you for your assistance and friendship, President Bukele” in response to his claim that 238 members of Tren de Aragua “arrived in our country” effectively ratifying that those planes were the ones used, and that the number Bukele used was the one given to him.

Perhaps the government is prepping a claim that these are “informal” statements. But Donald Trump has fired people by tweet, over and over, and nominated a good number of cabinet members by tweet, including Noem herself.

Trump’s tweets have official effect. To claim Trump’s tweet didn’t ratify Bukele’s post is nonsense.

Rubio and Noem’s focus on the danger of official confirmation is about refusing to provide Boasberg details showing that DHS had not done adequate vetting of the detainees to sustain the claim they really were members of Tren de Aragua. Again, this is from Noem’s declaration:

In addition to flight operations, the number of TdA members on a given removal flight is also information that, if disclosed, would expose ICE’s means and methods, thus threatening significant harm to the national security of the United States. Revealing and/or confirming the number of TdA members involved would reveal key details about how the United States conducts these sorts of operations and would allow other aliens (members of TdA and otherwise) to draw inferences about how the Government prioritizes and uses its resources in immigration enforcement and counterterrorism operations.

[snip]

When the United [sic] seeks to remove individuals to a foreign country, the United States must negotiate the details of that removal with the foreign country. This requires nonpublic, sensitive, and high stakes negotiation with the foreign State, particularly where, as here, the aliens being removed have been deemed enemy aliens and members of a foreign terrorist organization. Those negotiations cover sensitive issues, including representations regarding the bases on which the individuals are being removed from the United States, which can impact the foreign State’s willingness to accept the removed aliens and the procedures it will employ in doing so.

[snip]

Similarly, if sensitive information covered by a compelled disclosure — for example, the number and nature of aliens removed to the foreign State — were to come to light — the receiving foreign State’s government could face internal or international pressure making that foreign State and other foreign States less likely to work cooperatively in the future with the United States on matters affecting its national security.

Moreover, if a disclosure were to in any way undercut or, in the eyes of a foreign State (fairly or not) cast doubt on representations made by the United States during sensitive negotiations, that could likewise make that foreign State and other foreign States less likely to work cooperatively with the United States on matters affecting its national security.

Noem is not entirely making shit up (nor is she lying, elsewhere in her declaration, that confirmation that the flights landed in Honduras could cause problems).

Bukele said he was given 238 members of TdA. It was key to his propaganda campaign. If Boasberg now finds that’s false, it might well embarrass Bukele (though he’s pretty immune from embarrassment).

The problem for Noem and Rubio, is ACLU already presented two sworn declarations asserting that the Trump Administration’s public representations were false. EEPB, for example, described being told that El Salvador would not accept him, a Nicaraguan, because it would cause “conflict.”

I overheard a Salvadoran official tell an ICE officer that the Salvadoran government would not detain someone from another Central American country because of the conflict it would cause. I also heard him say that they would not receive the females because the prison was not for females and females were not mentioned in the agreement. I then saw the ICE officer call someone, and after the call, I overheard him saying we had to be sent back.

They included a guy whose accent undoubtedly makes it clear he’s not Venezuelan, but claimed he was a Venezuelan anyway.

More alarming still, Venezuelan woman SZFR — who, like other women on one of the planes, had not yet been formally deported and so by definition should only have been on one of the planes alleged to carry TdA members — described guards on the plane acknowledging that they knew an order prohibited the departure of the plane. She also described that guards were trying to force the male detainees on the plane to sign forms admitting they were TdA members.

10. When we got on the plane there were already over 50 men on the plane. I could see other migrants walking to the plane but we took off before any additional people boarded.

11. Within a couple of minutes of take off I heard two US government officials talking and they said “there is an order saying we can’t take off but we already have.”

12. I asked where we were going and we were told that we were going to Venezuela.

13. Several other people on the plane told me they were in immigration proceedings and awaiting court hearings in immigration court.

14. We were not allowed to open our window shades.

15. We landed somewhere for refueling. We were there for many hours. We were arm and leg shackled the whole time.

16. We took off again and landed fairly quickly. I was then told we were in El Salvador.

17. While on the plane the government officials were asking the men to sign a document and they didn’t want to. The government officials were pushing them to sign the documents and threatening them. I heard them discussing the documents and they were about the men admitting they were members of TdA.

18. After we landed but were still on the plane a woman opened the shade. An officer rushed to shut the shade and pushed her down by her shoulders to try and stop her from looking out. The person that pushed her down had HOU-02 on his sleeve.

19. I saw out the window for a minute and I saw men in military uniforms and another plane. I saw men being led off the plane. Since I’ve been back in the U.S. I have seen news coverage and the plane I saw looks like the one I’ve seen on TV with migrants from the U.S. being delivered to El Salvador.

20. All the men got off the plane. The remaining women asked what happens to us? I was told that the President of El Salvador would not accept women. I was also told that we were going back to detention in the U.S. [my emphasis]

But the most important part with respect to Noem’s sworn statement that she can’t reveal details about who was on the plane is that the agreement with Bukele said he would not accept women.

And yet Kristi Noem’s DHS sent women — around nine of them — anyway.

There’s a lot that Noem is trying to cover up with her State Secrets declaration, starting with how incompetent her DHS is.

But one of the key details she’s trying to cover up is that a committed transphobe like Noem couldn’t even properly identify the sex of the detainees she was sending to El Salvador.

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It’s Not the Shameless Executive Power Grab in Plain Sight, It’s the Attempt to Retcon It Afterwards

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This, from Steve Vladeck, is a helpful piece on the plight of Mamoud Khalil, the Columbia student detained by ICE the other day whom Trump is trying to deport. As he describes, the case is clearly an attempt to police speech, but (as many things are in a counterterrorism frame) the Trump administration might well offer up some plausible legal justifications to defend their actions.

[A]lthough what the government has done to this point is profoundly disturbing, and is, in my view, unconstitutional retaliation for First Amendment-protected speech, I’m not sure it is as clearly unlawful as a lot of folks online have suggested. And that’s a pretty big problem all by itself.

[snip]

Third, what is the legal basis pursuant to which the government is seeking to remove Khalil?
This brings us to the central “merits” question. What is the exact basis on which Khalil, in the government’s view, is subject to removal from the United States? Suffice it to say, President Trump’s social media post is not exactly specific here, nor has Secretary of State Rubio provided much additional clarity.

For what it’s worth, my best guess (and it is only a guess) is that the government is going to rely upon one or both of two very specific provision of immigration law.

The first, 8 U.S.C. § 1227(a)(4)(C), provides that “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” There’s a caveat protecting such a non-citizen from removal “because of the alien’s past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States,” but only “unless the Secretary of State personally determines that the alien’s [continued presence] would compromise a compelling United States foreign policy interest.” Thus, if Secretary Rubio makes (or has made) such a personal determination, that would provide at least an outwardly lawful basis for pursuing Khalil’s removal—so long as Rubio has also made timely notifications of his determinations to the chairs of the House Foreign Affairs, Senate Foreign Relations, and House and Senate Judiciary Committees required by 8 U.S.C. § 1182(a)(3)(C)(iv). (I’ve seen no evidence that he’s done so, but that doesn’t mean he hasn’t.)

The second provision is 8 U.S.C. § 1182(a)(3)(B)(i)(VII), which renders both inadmissible and removable any non-citizen who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” Perhaps the argument is going to be that, insofar as Khalil was involved in organizing pro-Palestinian protests on Columbia’s campus, he was “endors[ing] or espous[ing]” terrorist activity (to wit, by Hamas).

I know there’s a lot of technical language here. The key point is that it’s at least possible that the government has a non-frivolous case for seeking Khalil’s removal under one or both of these provisions—especially if Secretary Rubio invoked § 1227(a)(4)(C). And insofar as the government is relying upon those provisions to pursue Khalil’s removal, that might bring with it a sufficient statutory basis for his arrest and detention pending his removal proceeding. We’ll see what the government actually says when it files a defense of its behavior before Judge Furman; for present purposes, it seems worth stressing that there may well be a legal basis for its deeply troubling conduct. [my emphasis]

I of course don’t question Vladeck’s legal analysis (some immigration experts were pointing to the same immigration law provisions as well).

I instead want to suggest that with this case, as with several others, it appears that the Trump Administration made a shameless power grab without doing their investigative work first. So what we see going forward may be nothing more than an attempt to retcon it, to change their story after the fact to adjust for new facts.

Here are some ways Trump has been retconning (or attempting to) in the 50 days of this short term already.

  • After Elon Musk made exaggerated claims about NYC’s use of hotels to house migrants paid for by a FEMA grant, Kristi Noem loudly bragged that she had fired the people involved and had clawed back the money involved. In its lawsuit suing to get the money back, NYC disputes the underlying claim that the government had pointed to (that Roosevelt Hotel was being used to support crime and NYC knew it). One of the fired workers, Mary Comans, disputed Noem’s claim about her own firing in one declaration. And now she’s suing not just for her termination, but for the false claims made about her publicly. As that suit was being filed, a top FEMA lawyer was fired, and those involved suspect it had to do with a request that the lawyer make claims about the clawback to give it legal justification.
  • After Elon and others repeatedly claims made in a Project Veritas video about efforts to fund the Greenhouse Gas Reduction Fund at the end of the Biden Administration, Lee Zeldin bragged that he would claw back that funding, in such a way that may expose him to legal claims. In an attempt to do that, Emil Bove and Ed Martin pressured a senior DC USAO prosecutor, Denise Cheung, to not just freeze the funds, but do so with a claim of probable cause based on the PV video. That led her to quit and release her resignation statement. Only after that, the FBI interviewed the guy in the PV video; according to his attorney, Mark Zaid, he had nothing to do with the disbursements in question. And since then, Ed Martin has been jurisdiction shopping attempting to pursue this case. Zeldin is trying to get the Acting Inspector General to invent justification for this after the fact. One of the entities involved, Climate Fund, has sued the EPA, Zeldin, and Citibank (there will be a hearing on its request for a TRO tomorrow).
  • With a great many DOGE activities (but most obviously with the USAID closure), the government initially claimed that it had stopped funding pursuant to Trump’s first-day Executive Orders, but after providers got Temporary Restraining Orders, the government (as laid out in a series of court declarations by Pete Marocco, in the USAID case) claimed, instead, that everything was shut down pursuant to a contract review involving Marco Rubio. The shutdown of contracts by itself may be totally legal (or at least defensible), but the way they did so raises real questions about whether the government was lying about Rubio’s personal involvement in the review process, and therefore its legality. (I’ll return to this example, and Rubio’s agency — double entendre intended — more generally, in a follow-up.)

With all of these things, like the Khalil detention, there might be some legal argument that it was legal.

But along the way, because the government didn’t have their story straight when they took action, they subsequently took actions that may cause, at the very least, legal friction going forward, if not legal liability themselves. Noem made allegedly false claims about Comans. A FEMA lawyer resigned, potentially available to offer conflicting testimony about what happened. Cheung resigned, loudly, exposing her opinion that Martin didn’t have criminal probable cause to pursue the clawback. Martin jurisdiction shopped. Marocco has made claims in declarations that defy credulity (and even conflict with a tweet Rubio posted yesterday).

More judges have gotten dragged in, with the kinds of fact sets that tend to piss off judges.

In Khalil’s case, there are several details that suggest the Trump Administration may be trying to retcon their basis for detaining him.

First, there were several right wing groups who first doxed and then targeted him. As with the PV video, right wingers are running with allegations regardless of the evidence. Last year after Columbia booted Khalil, they reversed the decision for lack of evidence. A right wing dossier on Khalil doesn’t actually include examples of antisemitism — but it dies invoke Hamas relentlessly. More recently, State has been doing AI searches to target people; thus far, anything this government has done with AI has had ridiculous problem. So there’s good reason to believe there was shitty information that went in the front end of this effort.

Further, it appears that ICE didn’t know that Khalil was a Green Card holder when they came to arrest him. The habeas petition claims that the agents “looked confused” when he provided proof of status.

15. On the evening of March 8, 2025, at approximately 8:30 p.m., [redacted] and his wife were returning to their Columbia University-owned apartment from a friend’s home. When they arrived at their apartment building, [redacted] and his wife were approached by approximately four people who were dressed in plain clothes. All of them entered the lobby of the apartment building.

16. When the people approached and his wife, they asked, “Are you [redacted]? When [redacted] answered in the affirmative, the men identified themselves as being with the Department of Homeland Security (“DHS”) and that they have to take into custody. The agents told [redacted]’s wife to go up to her apartment, and that if she would not leave they threatened to arrest her, too.

17. [redacted]’s wife retrieved s immigration documents to show the agent that is a lawful
permanent resident. She handed the documents to the agent, who was talking to someone on the
phone. The agent looked confused when he saw the documents and said, “He has a green card.”
[redacted]’s wife heard the agent repeat that they were being ordered to bring in anyways.

[snip]

Attorney Greer identified herself as s attorney and asked who she was speaking with. The agent identified himself as Special Agent Elvin Hernandez of Homeland Security. Attorney Greer asked if Agent Hernandez had a warrant, and he answered in the affirmative, stating that [redacted]’s student visa had been revoked by the U.S. Department of State and therefore they were detaining him. Attorney Greer advised Agent Hernandez that is a lawful permanent resident and has the right to due process. Agent Hernandez responded that the Department of State had revoked [redacted]’s green card, too, and that he would be brought in front of an immigration judge. The agent stated that he would be taking to 26 Federal Plaza.

19. The agents then handcuffed and brought him outside where there were multiple vehicles
waiting. [redacted]’s wife asked for the names of the agents, their contact information, and how to
reach them to follow up on her husband’s detention, but they only advised her that would be
taken to 26 Federal Plaza, and otherwise refused to speak with her. They left her no business card
or any information at all as to how to find out where her husband will be taken, on what grounds,
or who she can contact. [my emphasis]

If the backup to the warrant to detain Khalil was premised on him being a student visa holder (this Tweet targeting Khalil directly asks Rubio to strip his visa), then it’s almost impossible that Marco Rubio would have done the concerted review that stripping him of his Green Card would require (much less the notice to Congress, which Vladeck laid out above), just as it’s “implausible” that Rubio really reviewed the USAID contracts that got shut down.

That is, the ICE agent’s representation that State had stripped Khalil’s visa when they detained him may not yet have been true, whatever else State tries going forward.

Finally, while it is normal for ICE to whisk people off to Louisiana like they did Khalil and normal for it to take a day or so to show up in the system (meaning, he wasn’t specifically disappeared, but rather, America’s detention systems work in this Kafkaesque way normally), the current record suggests that ICE moved Khalil after his attorneys had submitted the habeas petition. As Vladeck notes, that should help Khalil to retain the jurisdiction in SDNY, before Jesse Fruman and in the Second rather than Fifth Circuits.

Kahlil is currently being held in Jena, Louisiana—which is in the Alexandria Division of the U.S. District Court for the Western District of Louisiana (and, as importantly, the Fifth Circuit). It wouldn’t surprise me at all if the government tried to argue that the New York federal courts lack jurisdiction over Kahlil’s petition—because they lack jurisdiction over his “immediate custodian,” i.e., the head of the ICE detention facility in Jena. Indeed, this is the exact argument on which the Bush administration prevailed in the Supreme Court in the Jose Padilla case in 2004—when a U.S. citizen detained in South Carolina as an “enemy combatant” sought to challenge his detention in Manhattan, which is where he had last been before he was transferred to military custody.

But there are two potential grounds on which Padilla can be distinguished. First, in Padilla, the habeas petition wasn’t filed until after Padilla had been physically removed from the Southern District of New York. Here, Khalil’s lawyers have represented that they filed before he was transferred to Louisiana (at 4:40 a.m., no less!). If that’s true (and there’s no reason to believe that it isn’t), that would make this a very different case. After all, a different line of Supreme Court precedent provides that the federal government can’t defeat jurisdiction in a habeas case by transferring the petitioner after the petition is filed.

But it also raised questions about whether ICE was trying to whisk him away to defeat the legal proceeding that was pending as soon as that petition was filed.

There’s that old adage, which seems inoperative since Nixon, that it’s not the crime, it’s the cover-up. With Trump and under expansive authorities of Article II, it often looks like it’s not the initial power grab that might create legal problems. It’s the attempt to retcon that power grab after it becomes clear the facts were not what Trump or others believed when the Administration took action.

Over and over, Trump 2.0 has taken aggressive steps based off bullshit, much of it coming from Elon or other far right propagandists. And over and over, Trump’s top people keep creating problems for themselves as they try to adjust the (legal) narrative to match their evolving understanding of the facts.

So as we go forward with discussions about Khalil, don’t necessarily assume that legal justifications that the government could have used were yet the legal justifications they may argue going forward.

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Elon Musk’s AI-bola and Marco Rubio’s Very Busy Month

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Trump had a ritual humiliation session yesterday he billed as a Cabinet Meeting. One purpose of it was to perform complaisance with DOGE [sic]. Trump had Elon lie about his accomplishments and goal, and then invited Cabinet Members to speak up publicly about problems with him, which of course all declined to do.

And obviously, that can only be done with the support of everyone in this room. And I’d like to thank everyone for — for your support. Thank you very much this. This — this can only be done with — with your support.

So, this is — it’s really — DOGE is a support function for the president and for the — the agencies and departments to help achieve those savings and to effect- — effectively find 15 percent in reduction in fraud and — and waste.

And — and we bring the receipts. So, people say, like, “Well, is this real?” Just go to DOGE.gov. We l- — we — line item by line item, we specify each item. So — and w- — and I — I should say, we — also, we will make mistakes. We won’t be perfect. But when we make mistake, we’ll fix it very quickly.

So, for example, with USAID, one of the things we accidentally canceled, very briefly, was Ebola — Ebola prevention. I think we all wanted Ebola prevention. So, we restored the Ebola prevention immediately, and there was no interruption.

But we do need to move quickly if we’re — if we’re to achieve a trillion-dollar deficit reduction in tw- — in — in financial year 2026. It requires saving $4 billion per day, every day from now through the end of September. But we can do it, and we will do it.

Thank you.

THE PRESIDENT: Well, do you have any questions of Elon while we’re on the subject of DOGE? Because we’ll finish off with that. And if you would have any questions, please ask — you could ask me or Elon.

Go ahead, please.

Q Thank you, Mr. President. Thank you, Mr. Musk. I just wanted to ask you, the — President Trump put out a Truth Social today saying that everybody in the Cabinet was — was happy with you. I just wondered if that — if you had heard otherwise, and if you had heard anything about members of the Cabinet who weren’t happy with the way things were going. And if so, what are you doing to address those — any dissatisfaction?

MR. MUSK: To the best of —

THE PRESIDENT: Hey, Elon, let the Cabinet speak just for a second. (Laughter.)

Is anybody unhappy with Elon? If you are, we’ll throw them out of here. (Laughter.) Is anybody unhappy? (Applause.)

They are — they have a lot of respect for Elon and that he’s doing this. And some disagree a little bit, but I will tell you, for the most part, I think everyone is not only happy, they’re thrilled.

The Ebola line — one Marco Rubio did not contest — got a ton of press.

But WaPo’s story — describing that Elon’s claimed restoration was a lie — got far less.

Yet current and former USAID officials said that Musk was wrong: USAID’s Ebola prevention efforts have been largely halted since Musk and his DOGE allies moved last month to gut the global-assistance agency and freeze its outgoing payments, they said. The teams and contractors that would be deployed to fight an Ebola outbreak have been dismantled, they added. While the Trump administration issued a waiver to allow USAID to respond to an Ebola outbreak in Uganda last month, partner organizations were not promptly paid for their work, and USAID’s own efforts were sharply curtailed compared to past efforts to fight Ebola outbreaks.

“There have been no efforts to ‘turn on’ anything in prevention” of Ebola and other diseases, said Nidhi Bouri, who served as a senior USAID official during the Biden administration and oversaw the agency’s response to health-care outbreaks.

Last month’s Ebola outbreak has now receded, but some former U.S. officials say that’s in part because of past investments in prevention efforts that helped position Uganda to respond — and that other countries remain far more vulnerable.

Bouri said her former USAID team of 60 people working on disease-response had been cut to about six staffers as of earlier this week. She called the recent USAID response to Uganda’s Ebola outbreak a “one-off,” far diminished from “the full suite” of activities that the agency historically would mount, such as ramping up efforts to monitor whether the disease had spread to neighboring countries.

“The full spectrum — the investments in disease surveillance, the investments in what we mobilize … moving commodities, supporting lab workers — that capacity is now a tenth of what it was,” Bouri said.

[snip]

“We have the programs and the people who were working on Ebola and other deadly-disease prevention capacity in other countries not able to do their jobs because their work is frozen, and many of the people have been put on administrative leave,” said Cameron, who worked on biosecurity efforts in the Bush, Obama, Trump and Biden administrations. “And we have a response that is, at best, less efficient, because the implementers are not able to get reliably paid.” [my emphasis]

This is consistent with what people have been claiming in court declarations (in this case from a Controller stationed overseas) for weeks: even where State/USAID claims to have sustained a program, it was nevertheless gutted through non-payment and staffing cuts.

8. Every single payment that I tried unsuccessfully to process after January 27 was for an expense incurred before January 20. Most of the payments I have been trying to process were for expenses incurred in November or December of 2024. These included large payments to partners who bill us every month for the work performed in the previous month, as well as smaller administrative items like cell phone and other utility payments, travel reimbursements, and rental payments.

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 cableindicating 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.

[snip]

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.

The people who pay the bills have all been forced out of payment systems. And it’s not clear whether DOGE [sic] broke the system or simply disabled it (a Matt Bai report I find suspect, but which plaintiffs have now cited in court filings, says it’s the latter).

The first of these USAID cases — on Judge Amir Ali’s order to halt freezes of such funding — landed before SCOTUS last night; the government’s request to vacate Ali’s order presents a wildly misleading description of the posture of the case.

It also wails mightily about plaintiffs’ request to conduct discovery, including by deposing Marco Rubio.

Worse, this order exposes the government to the risk of contempt proceedings and other sanctions. Agency leadership has determined that the ordered payments “cannot be accomplished in the time allotted by the” district court. App., infra, 97a. That risk is especially concerning because the district court appears poised to require mini-trials, discovery, and depositions of senior officials as to whether a host of foreign-aid decisions genuinely rested on the government’s conceded discretionary authority to terminate contracts and grants, or were instead supposed pretexts for a blanket foreign-aid cut that the district court considers unlawful. See id. at 141a (respondents’ proposed discovery plan) (requesting deposition of Secretary of State) Respondents are pressing even further, demanding discovery into personnel actions, payment-processing protocols, and other agency actions that have nothing to do with their original APA claims challenging a categorical funding pause. The threat of invasive discovery into senior officials’ subjective motivations only exacerbates the Article II harms inflicted by the court’s order.

Or perhaps it wails mightily about being called on a claim made below: That Marco Rubio has been personally involved in all this.

After Judge Ali first issued a TRO, State offered a new claimed basis for the freeze: that State was in the process of canceling the contracts via clauses within the contracts, applied individually. It claimed that the reduced staff of State reviewed every contract and decided whether to keep or eliminate it.

And according to multiple declarations from Pete Marocco, Marco Rubio was personally involved in all of that.

5. USAID led a rigorous multi-level review process that began with spreadsheets including each contract, grant, or funding instrument where each line of the spreadsheeting reflected one such agreement and included information about the recipient, the amount of the award, the subject matter, and a description of the project that often included the location of the project. Policy staff first performed a first line review to determine whether the individual agreement was in line with foreign policy priorities (and therefore could potentially be continued) or not (and presumptively could be terminated as inconsistent with Agency priorities and the national interest). Those recommendations were reviewed by a senior policy official to confirm that, for awards recommended for termination, that ending the program was consistent with the foreign policy of the United States and the operations and priorities of the Agency. The results of that review were routed to me for further review, including of institutional and diplomatic equities. As one example, a presumptively terminated agreement might be continued for a variety of foreign policy reasons, such as the location of the project or the general subject matter, or the judgment and foreign policy perspectives of the second line reviewer. Termination recommendations approved by me ultimately received the Secretary of State’s review. The Secretary of State’s personal involvement confirmed that termination decisions were taken with full visibility into the unique diplomatic, national security, and foreign policy interests at stake vis-à-vis foreign assistance programs. [my emphasis]

Just in time to rush this to the Supreme Court, Marocco claimed that Rubio had finished his decision-making.

Since last night when I executed a declaration, the process for individually reviewing each outstanding State Department grant and federal assistance award obligation has concluded. Secretary Rubio has now made a final decision with respect to each such award, affirmatively electing to either retain the award or terminate as inconsistent with the national interests and foreign policy of the United States. State is processing termination letters with the goal to reach substantial completion within the next 24-48 hours. Notification letters will be distributed for retained awards withing 2 weeks to take account of the overseas lag. In total, approximately 4,100 awards were terminated, and approximately 2,700 awards were retained. Of approximately 711 contracts originally paused, approximately 297 still need to be reviewed; the remainder have either been terminated or resumed. Defendants are committed to fully moving forward with the remaining awards and programs that Secretary Rubio has determined to retain.

A Contracting Officer submitted a declaration yesterday explaining how “implausible” the claim of personal involvement from Rubio is.

36. As a CO who manages a portfolio of less than 50 awards, the claims of “individual reviews” by Secretary Rubio are completely implausible. Contracts and awards are lengthy, technical, and complicated documents. They often include technical specifications that are dozens of pages long, as well as lengthy technical appendices. It would take a single person weeks and weeks of work to substantively review hundreds of contracts and awards, especially if that person was not already familiar with the programs at issue. For example, when the Agency asked COs to review the Scopes of Work and Program Descriptions contained in our awards to determine whether provisions regarding Diversity, Equity, and Inclusion were incorporated, it took me and my team a week to review fewer than 50 awards. Not only did we have a team of people doing this work, but these were awards which I manage and have significant foundational knowledge about.

37. Beyond that, without consulting the COs and CORs/OARs who manage a specific contract or award, it would be impossible in most cases to understand whether a specific award could be terminated, effective immediately, without incurring even greater termination costs or causing even greater harms to the national interest or Agency priorities. For example, the COs and CORs/OARs have specific information about the status of ongoing work, whether immediate termination would incur sunk costs (for example, by allowing already-purchased food and medicine to expire), whether immediate termination would risk the health or safety of Agency personnel or implementing partners, among many other award-specific factors.

Rubio’s recent schedule makes that all the more implausible. For six days after the original stay, Rubio was traveling.

Secretary Rubio is on travel to Germany, Israel, Saudi Arabia, and the United Arab Emirates from February 13-19, 2025.

He had nothing but briefings on his schedule on February 20. But then he had two high level meetings on February 21. More high level meetings, including with President Macron, on Monday. A meeting with the Saudi Defense Minister Tuesday. And the aforementioned Cabinet Meeting yesterday, where Rubio didn’t speak up to correct Elon’s false claim about Ebola. Rubio did, however, blow off EU foreign policy minister Kaja Kallas yesterday, avoiding a discussion about Ukraine. Today, Keir Starmer visits.

Even with the canceled Kallas meeting, though, Rubio simply had no time —  especially not blocks of time that fell into the periods when Pete Marocco claims these decisions were made — to review the contracts in depth.

State needs to claim Rubio had personal involvement in rescinding these contracts. But it is virtually impossible that he did, much less that he had meaningful input on it.

What is far more likely is that Elon’s AI reviewed these contracts, and State is claiming that the work of that AI is instead the considered conclusion of the Senate-confirmed Secretary of State.

No wonder DOJ panicked when plaintiffs said they wanted to depose the people who made the decisions (a request Judge Ali has not endorsed).

Someone just shut down the bulk of foreign aid, purportedly with the personal involvement of the Secretary of the State. But that very same Secretary of State sat silent when Elon Musk falsely claimed that State was still funding Ebola prevention.

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DOGE2025 Is Getting the Catastrophic De-Ba’athification They Demanded

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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 Post reports 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.

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Donald Trump’s Incorrect Shell Game of Appropriated Spending

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Yesterday, I argued that Trump would not yet defy courts because he wants to invite the Supreme Court to sanction his dictatorial powers, and so wants a clear appellate record.

Boy howdy was that a short-lived theory. Trump says he is appealing two orders that are not yet ripe for appeal in two lawsuits involving Democratic Attorneys General — RI Judge John McConnell’s order and follow-up order that the government pay grants to the states [appeal] and Paul Engelmeyer’s order ordering Treasury to stay out of the payment system [request for stay pending appeal] — as well as in Special Counsel Hampton Dellinger’s challenge to his dismissal.

So by the time Republicans figure out how they’re going to use reconciliation to pass Trump’s policies, SCOTUS may have already agreed to gut Congress’ power of the purse.

But the record in the spending cases is anything but clean.

In one of the two cases challenging DOGE’s [sic] access to Treasury systems — the DC case before Colleen Kollar-Kotelly — DOJ decided after the fact that Marko Elez, the DOGE [sic] boy who had been granted a copy of Treasury systems to sandbox, was actually a Treasury employee.

With the benefit of more time to investigate the facts over the weekend, Defendants came to understand that Marko Elez, who, at the time of the hearing was employed by the Department of the Treasury, had not, in fact, been designated by the Treasury Department as a Special Government Employee (SGE), as counsel stated at the February 5 hearing. Mr. Elez, was, however, a Treasury Department employee. Treasury hired Mr. Elez as Special Advisor for Information Technology and Modernization, Departmental Offices, Office of the Chief of Staff, under Treasury’s authority to establish temporary transitional Schedule C positions. See 5 C.F.R. § 213.3302. Although Mr. Elez could have been designated as an SGE because he was slated to perform temporary duties either on a full-time or intermittent basis for not more than 130 days, the Treasury department Ethics office did not designate Mr. Elez as a Special Government Employee, meaning that he in fact had to comply with additional ethics requirements that are not required for SGE positions.

[snip]

Defendants also wish to notify the Court that, as stated in the Declaration of Thomas Krause, Jr., filed yesterday, in State of New York v. U.S. Department of the Treasury, Case No. 25 Civ. 01144 (JAV) (S.D.N.Y.), Mr. Elez resigned from Treasury on February 6, 2025, and he returned all Treasury and BFS equipment and credentials the same day. See Exhibit 1, ¶ 11. Moreover, in that case, on February 8, the Court entered a temporary restraining order restricting who may access Treasury systems. See Ex. 2. Those restrictions are in addition to those imposed by this Court’s Order entered February 6.

This filing included Thomas Krause’ declaration (submitted in the Treasury suit filed by states, which Trump is appealing) describing that Elez had resigned (but not addressing whether he has been reinstated; in retrospect, it seems the declaration was written specifically to avoid calling Elez a DGE). But it didn’t include the underlying filing in the case, which in a footnote confesses that Elez had a full copy of the BFS system in a sandbox, falsely claiming that Krause addressed this in his declaration.

2 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

This means that this correction doesn’t correct another false claim DOJ made to Kollar-Kotelly: that Elez’ access had been “read only.” And DOJ hasn’t told Judge Jeanette Vargas (to whom the New York case was assigned after Engelmeyer issued the TRO) that Elez is a full Treasury employee and so, if he has been reinstated, potentially excluded from Engelmeyer’s order.

In the USAID case, where Trump might believe he can coax a favorable ruling from his own first term appointee, Carl Nichols, Peter Marocco submitted a long, obnoxious declaration claiming they had to shut down USAID because of widespread insubordination among USAID employees. (I’d quote from it but the declaration breaks local rules requiring OCR filings.)

But after Marocco submitted that filing, the career AUSAs on the case submitted a declaration that included this correction.

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]

Marocco confesses that existing contracts “were paused” by him this way:

Furthermore, many of USAID’s pre-existing programs were in conflict with the directives and priorities of the President and Secretary, and therefore were inconsistent with the public interest and foreign policy judgments of the Executive Branch. Given the scale of these programs, an ad hoc review of these conflicting programs would unduly burden the execution of the President’s other foreign policy priorities. A blanket pause with a waive-in process was the more efficient and effective path.

He describes this notice Marco Rubio sent to Congress, which makes no mention of pausing ongoing work. Then he continues to describe how existing programs “were paused” by him.

The first step of this review, in essence, involved the majority of USAID pausing a substantial portion of its ongoing work — going “pencils down” — so the Secretary and USAID leadership could gain control of the organization that included some employees who had refused to comply with lawful directives by the President and Secretary, directives designed to identify wasteful or fraudulent programs or those contrary to the foreign policy interests of the United States. The pause of ongoing work and use of paid administrative leave have enabled Agency leadership to begin a thorough review of USAID’s operations and align its functions to the President’s and Secretary’s priorities, without continued noncompliance by former Agency leadership and management undermining those priorities. Pausing a majority of USAID’s work was, and remains, necessary to continue this thorough review into the noncompliance issues first identified, as well as to continue to examine USAID’s processes and the manner in which USAID funds its programs.

In other words, the people that Marocco calls noncompliant are noncompliant because they’re following the law, a law uncontroverted by Trump’s order or even Rubio’s notice to Congress.

As Nichols said when he issued the TRO ordering USAID to reinstate employees, whether or not this involved existing or only prospective contracts was an issue of some contention in the hearing.

Plaintiffs finally seek a TRO as to Secretary Rubio’s January 24, 2025 order freezing funding to USAID’s contractors. As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.

This factual dispute is relevant to plaintiffs’ TRO arguments, but ultimately is not dispositive of them. Plaintiffs allege that, by some legal mechanism, USAID contracting officers can be held personally liable for existing contractual expenses that USAID is supposed to, but does not, pay. Plaintiffs thus argue that those officers face irreparable harm as a result of the funding freeze because they will be left “holding the bag” when USAID imminently fails to disburse funds. Separately, plaintiffs argue that the general population of USAID employees will be emotionally harmed by the agency’s inability to pay its contractors because they will be stuck “watching a slow speed train wreck” as the agency reneges on its humanitarian commitments.

Even assuming the funding freeze indeed prevents payments on existing grants in the way plaintiffs claim (instead of merely preventing USAID from entering new obligations, as the government suggested during the hearing), the Court concludes that plaintiffs have not demonstrated resulting irreparable harm.

But because this suit involves employees, rather than states or other recipients of funds from Treasury (as is the case in the two suits where DOJ has said it will appeal), these plaintiffs themselves are not being injured because they’re still being paid.

DOJ is hiding behind career AUSAs making claims they likely do not know are false so as to shut down appropriations that have already been approved.

And they are appealing each instance in which a plaintiff has genuinely been injured (the states and Hampton Dellinger’s firing) in hopes — or maybe expectation? — after the Circuits deny appeals that are not yet ripe, SCOTUS will step in and render Congress impotent.

Update: USAID Inspector General somehow managed to put together a report on the damage the chaos is having. Among other things, it finds that the cuts have incapacitated any means of vetting disbursements to keep them out of the hands of terrorists.

USAID describes partner vetting as a risk-mitigation tool to “ensure that American taxpayer funds do not benefit terrorists and their supporters.” Currently, partner vetting is required for programming in Afghanistan, Iraq, Lebanon, Pakistan, Syria, West Bank/Gaza, and Yemen where designated terrorist organizations such as Hamas, Hezbollah, ISIS, and Ansar Allah (also known as the Houthis) operate. Before the Agency awards a contract, grant, or cooperative agreement in these locations, the proposed awardee must submit to USAID data needed to vet the organization and its key personnel. The same vetting must be undertaken before an aid organization issues a subaward. While USAID OIG has previously identified gaps in the scope of partner vetting, 10 USAID staff have reported that the counter-terrorism vetting unit supporting humanitarian assistance programming has in recent days been told not to report to work (because staff have been furloughed or placed on administrative leave) and thus cannot conduct any partner vetting. This gap leaves USAID susceptible to inadvertently funding entities or salaries of individuals associated with U.S.-designated terrorist organizations.

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Trump Appointee Carl Nichols Enjoins Trump from Stranding USAID Workers

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There was a big development (and a few smaller ones) in DOGE’s [sic] attempts to start shutting down big parts — Treasury and Office of Personnel Management — of the government.

Before I look at those, I want to look at the order Trump appointee Carl Nichols (a former Clarence Thomas clerk) issued in a lawsuit two unions filed to enjoin the USAID shutdown.

The unions claimed the USAID shutdown violated:

  • Separation of powers
  • Take care clause
  • Administrative Procedure Act because it was in excess of statutory authority
  • Administrative Procedure Act because it was arbitrary and capricious

They described the death and destruction the shutdown has caused and will cause.

The agency’s collapse has had disastrous humanitarian consequences. Among countless other consequences of defendants’ reckless dissolution of the agency, halting USAID work has shut down efforts to prevent children from dying of malaria, stopped pharmaceutical clinical trials, and threatened a global resurgence in HIV.40 Deaths are inevitable. Already, 300 babies that would not have had HIV, now do.41 Thousands of girls and women will die from pregnancy and childbirth.42 Without judicial intervention, it will only get worse. The actions defendants plan to take on Friday will “doom billions of dollars in projects in some 120 countries, including security assistance for Ukraine and other countries, as well as development work for clean water, job training and education, including for schoolgirls under Taliban rule in Afghanistan.”43

And they asked for a Temporary Restraining Order on certain actions the government took, which Nichols (after a hearing) construed this way:

Plaintiffs frame their TRO request as pertaining to one overarching event: the allegedly “illegal and unconstitutional dismantling of USAID.” Mot. at 9. But at the TRO hearing, it became clear that plaintiffs’ allegations of irreparable injury flow principally from three government actions: (1) the placement of USAID employees on administrative leave; (2) the expedited evacuation of USAID employees from their host countries; and (3) Secretary Rubio’s January 24, 2025 order “paus[ing] all new obligations of funding . . . for foreign assistance programs funded by or through . . . USAID.” Dep’t of State, Memo. 25 STATE 6828. The Court finds that a TRO is warranted as to the first two actions but not the third.

The request for a Temporary Restraining Order included declarations describing the injuries the shutdown has and will cause, including this one describing the harm a sudden move will cause to an employee’s two special needs kids.

This directive will have profound impacts on the wellbeing of my kids’ personal, educational and psychological development. I have two children at Post: a seven-year-old in first grade and a two-year-old in preschool. Both have received “Class 2” medical clearances from State MED and thus they receive a Special Needs Education Allowance (SNEA) for occupational therapy (OT). My older child has documented gross and fine motor skill delays due to prenatal intrauterine growth restriction (IUGR). My younger child also has documented gross and fine motor skill delays due to torticollis. Both children receive OT services in conjunction with their schooling in a purposefully integrated manner, a best practice promoted by specialists at the State Department ‘s Office of Child and Family Program (CFP) who oversee their care. Additionally, my older child who is in first grade was recently diagnosed by a licensed medical professional with ADHD and anxiety. They are now receiving Cognitive Behavioral Therapy (CBT) at Post from a licensed therapist and the Embassy Medical Unit is tracking their care.

Uprooting my children from their school, OT service providers, and child therapist in the middle of the school year will undoubtedly set back their development with possible lifelong implications. In the United States, we currently have no home or ties to a specific school district. My kids have lived overseas nearly their entire life in service of our country. There will be an inevitable gap – possibly a long one – before they are back in a stable routine of integrated schooling, OT services, and psychological services, a routine that medical professionals have determined they need to overcome developmental delays, and in the case of my seven-year-old, ADHD.

Or this one, describing the danger of losing access to security protections in high risk locations.

Personal Safety Risks: The shutdown could have life-threatening consequences for PSC colleagues serving in high-risk locations. The abrupt shutdown of government devices and access was highly reckless to colleagues in active conflict zones, such as Ukraine and Somalia. Friends and colleagues lost access to the Embassy safety communication channels, and many could no longer use a safety app called “Scry Panic 2.0,” which is installed on government-furnished equipment. In addition, many PSCs serving USAID abroad were unsure if they remained under U.S. chief-of-mission authority, which guarantees access to U.S. Government resources to ensure staff safety and accountability, including for emergency evacuations. U.S. Department of State officials, who were tasked with developing a plan to get USAID officials home, had no instructions or information on the next steps.

Many USAID PSCs work in high-risk environments where access to security resources is critical. I have heard from overseas colleagues who have now lost access to Diplomatic Security systems, meaning they can no longer coordinate security protocols, evacuations, or emergency procedures. Without official communication from USAID leadership, these PSCs remain in dangerous locations without clarity on whether they still have institutional protection. Others fear that in the event of a medical emergency or security threat, they will be forced to rely on personal funds or external assistance, as USAID has not provided guidance on whether existing security protocols still apply to them.

A risk exacerbated, the declaration explains, by the false claims launched against USAID staffers.

PSCs are also at increased risk of physical harm due to the threats, harassment, and misinformation that have accompanied the shutdown. The reckless rhetoric spread on social media and in political discourse has put USAID personnel at risk. I have heard from colleagues who have been labeled as criminals, supporters of terrorists, or Marxists—simply for doing their jobs.

High-profile figures, including Elon Musk and his supporters, have fueled this misinformation, creating a hostile environment where USAID staff fear for their personal safety. With individuals involved in the January 6th insurrection now released, there is a heightened sense of danger that USAID employees could be targeted next. I have colleagues who no longer feel safe in their own homes, with some refusing to leave family members alone out of fear that someone radicalized by online misinformation may try to harm them.

Judge Nichols cited both of those injuries in enjoining the government. He cited the latter risk when disputing the government claim that putting 2,700 USAID employees (500 of whom were already put on leave, the others would have been as of yesterday) was just a “garden-variety personnel action.”

Taking the TRO factors somewhat out of order and beginning with irreparable injury, the Court finds that plaintiffs have adequately demonstrated that their members are facing irreparable injury from their placement on administrative leave, and that more members would face such injury if they were placed on administrative leave tonight. Many USAID personnel work in “highrisk environments where access to security resources is critical.” ECF No. 9-10 ¶ 14. No future lawsuit could undo the physical harm that might result if USAID employees are not informed of imminent security threats occurring in the countries to which they have relocated in the course of their service to the United States. The government argued at the TRO hearing that placing employees on paid administrative leave is a garden-variety personnel action unworthy of court intervention. But administrative leave in Syria is not the same as administrative leave in Bethesda: simply being paid cannot change that fact.

And he cited the former injury when ruling that immediately recalling the officers overseas would create real injury, one not counterbalanced by any pressing government need.

Specifically, whereas USAID’s “usual process” provides foreign service officers with six to nine months’ notice before an international move, plaintiffs allege that USAID has now issued a “mandatory recall notice” that would require more than 1400 foreign service officers to repatriate within 30 days. Mot. at 18.

Plaintiffs have demonstrated that this action, too, risks inflicting irreparable harm on their members. Recalling employees on such short notice disrupts long-settled expectations and makes it nearly impossible for evacuated employees to adequately plan for their return to the United States. For instance, one of plaintiffs’ members attests that, if he is recalled from his foreign post, he will be forced to “[u]proot” his two special-needs-children from school in the middle of the year, “set[ting] back their development with possible lifelong implications.” ECF No. 9-5 ¶ 6. He also attests that, because his family has no home in the United States and his children have “lived overseas nearly their entire life,” there will be “an inevitable gap—possibly a long one—before they are back in a stable routine . . . that medical professionals have determined they need to overcome developmental delays.” Id. Other of plaintiffs’ members tell similar stories, explaining that the abrupt recall would separate their families, interrupt their medical care, and possibly force them to “be back in the United States homeless.” See ECF ECF No. 9-4 ¶ 7; ECF No. 9-5 ¶ 8; ECF No. 9-9 ¶ 6. Even if a future lawsuit could recoup any financial harms stemming from the expedited evacuations—like the cost of breaking a lease or of abandoning property that could not be sold prior to the move—it surely could not recoup damage done to educational progress, physical safety, and family relations.

But perhaps the most important language in Judge Nichols’ short opinion was his disdain for the government’s flimsy claims that the USAID employees have to be put on leave because of vague claims of fraud.

When the Court asked the government at the TRO hearing what harm would befall the government if it could not immediately place on administrative leave the more than 2000 employees in question, it had no response— beyond asserting without any record support that USAID writ large was possibly engaging in “corruption and fraud.”

That is, when pushed to justify this purge to a sympathetic Trump appointee, DOJ simply couldn’t substantiate claims of fraud.

To be sure, Nichols only enjoined the government until February 14. And he didn’t reverse the freeze on funding — notwithstanding that the government likely lied in saying that the freeze only applied to prospective funding obligations.

As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.

But Trump’s administration had a chance to substantiate the wild claims of fraud and abuse that Elon Musk has leveled at USAID.

And Carl Nichols was unimpressed.

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Who Needs Intelligence Sharing?

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On January 27th, an AP story appeared on the news website Military.com with the headline “Intelligence Sharing by the US and Its Allies Has Saved Lives. Trump Could Test Those Ties.” On the surface, it reads like one of those analysis pieces that come out when the White House changes from one party to the next, with the added twist of knowing what the first Trump administration was like.

The Associated Press spoke with 18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence. Many raised questions and concerns about Trump’s past relationship with America’s spies and their ability to share information at a time of heightened terror threats and signs of greater cooperation between U.S. adversaries.

The importance of trust

The U.S. and its allies routinely share top-secret information, be it about potential terror threats, Chinese cyberattacks or Russian troop movements. America’s closest intelligence partners are New Zealand, Australia, Canada and Britain, and it often shares with other nations or sometimes even adversaries when lives are at stake.

[snip]

Cooperation particularly between the U.S. and the U.K. is “strong and robust enough to withstand some turbulence at the political level,” said Lord Peter Ricketts, former U.K. national security adviser and current chair of the European Affairs Committee of the upper chamber of the British Parliament.

However, any strong intelligence relationship is underpinned by trust, and what if “trust isn’t there?” Ricketts said.

Ricketts’ question is no longer a hypothetical. This is the reality faced by intelligence services who in the past have been friendly with the US intelligence community. The AP put out their story on January 27th, and that seems like years ago. Today this reads like a warning.

The takeover of USAID that has played out this past week is *not* just a battle over who runs offices in DC. The bulk of USAID’s staff work overseas, alongside their local partners. When phone calls from these overseas missions back to DC go unanswered, and when US staffers abroad are told to stand down, all those local partners are going to get very, very nervous, and not just because their paychecks stop. They’re going to talk to others in their government, trying to find out what it going on. At the same time, they will be providing input (either directly or indirectly) to their own country’s intelligence service, as their spooks add it to whatever they are learning from elsewhere. In the US, folks worry about those who are losing their jobs; overseas, these fights will result in people dying, like those who don’t get the clean water, medical care, or disease prevention measures like malaria nets. Those other countries are watching with horror the stories of Musk’s minions breaking into sensitive databases, over the objections of trusted career people, and wonder what of their own information is now in the hands of a privateer, and if the same this is (or will be) going on at the CIA, DIA, and other US intelligence agencies.

I guarantee you that all these other countries are watching the battle over USAID much more carefully than folks in the US.

Or look at the targeting of General Mark Milley, widely respected by his counterparts among our allies and within their intelligence services. OK, Biden pardoned him to protect him, but Trump withdrew his security clearance, and also his personal security detail. On January 29th, newly confirmed Secretary of Defense Pete Hegseth launched a process to investigate Milley, seeking to strip him of at least one star, cut his retirement pay, and punish him further. Given what the US attorney for DC is doing by going after DOJ attorneys for investigating the rather noticeable break-in of the US Capitol on January 6, 2021, it’s not hard to imagine that Hegseth’s henchmen will be rather thorough in their work and ruthlessly push aside anyone who gets in their way.

Now imagine you are a member of a foreign intelligence service — perhaps the head, or perhaps a mid-level staffer whose specialty is the US. You see the USAID invasion. You see the public decapitation of the FBI. You see the targeting of career DOJ officials. You see Hegseth paint a target on the back of Milley (and others, like John Bolton and John Brennan). You see all this, much of it in the bright light of public reporting. You hear more from your contacts, who paint more detailed pictures of these purges and fights. You see all this, and you ask yourself two questions, over and over again.

1) Are the things we shared with the US intelligence community in the past safe from being revealed in public, and thus causing us harm?
2) Can we trust the US intelligence community with information we might share with them in the future?

Given what we’ve seen over the last week, the answers to these questions are becoming more and more clear: 1) no and 2) no.

I haven’t talked to those “18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence” to whom the AP spoke. The AP headline was hypothetical – “Trump could test those ties” – but now on February 3rd, it’s real. Trump has been f’ing around with those intelligence service ties, and he’s about to find out what happens.

The short answer is becoming clear, as Trump’s vision of America First becomes America Alone.

 

 

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