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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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Imagine if Dana Bash Knew Trump Had Been President Before?

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After letting Donald Trump lie non-stop in the debate, Dana Bash invited his aspiring running-mate, Marco Rubio, onto her show to  tell the same lies.

Ostensibly, she was asking Rubio about whether the Supreme Court immunity decision violated Rubio’s own stated dodge on accountability for January 6: “let history, and if necessary, the courts judge the events of the past.”

But Rubio quickly took over the segment, spending 37 seconds, and then another 22 seconds, falsely claiming that Joe Biden’s Administration was using DOJ as a legal weapon against Donald Trump. Rubio claimed, “The evidence is in the headlines every day. Every you day you open up it’s another Republican going to jail somewhere.” Bash let Rubio drone on at length, before interrupting to state there’s no evidence that Biden is doing this.

Worse still was Bash’s failure to rebut Rubio’s lies about Donald Trump’s first term. Rubio claimed, “I can’t think of a single prominent Democrat who was chased around, persecuted, prosecuted.” He followed up, “He was President for four years, he didn’t go after Hillary Clinton, he didn’t go after Joe Biden, he didn’t go after Barack Obama, he didn’t go after any other consultants. We didn’t see under him what we’re seeing now.” In one uncomfortable moment, Rubio cited the debate at which Bash had let Trump lie over and over about his future plans to criminalize his opponents, as if it represented the truth. Rubio then stated again that Trump, “was President before and he didn’t do it then.”

Those are all lies.

Those are all lies that Bash has a responsibility to debunk.

After Trump demanded it, Hillary Clinton remained under investigation — based off Peter Schweizer’s political hit job, Clinton Cash — for the entirety of Trump’s term, with a declination memo issuing only in August 2021.

Career prosecutors in Little Rock then closed the case, notifying the F.B.I.’s office there in two letters in January 2021. But in a toxic atmosphere in which Mr. Trump had long accused the F.B.I. of bias, the top agent in Little Rock wanted it known that career prosecutors, not F.B.I. officials, were behind the decision.

In August 2021, the F.B.I. received what is known as a declination memo from prosecutors and as a result considered the matter closed.

“All of the evidence obtained during the course of this investigation has been returned or otherwise destroyed,” according to the F.B.I.

Rubio mentioned, “consultants.” After Trump demanded prosecutions from John Durham, Durham indicted DNC cybersecurity lawyer Michael Sussmann on flimsy charges. When Durham wildly misrepresented a report Sussmann made — showing the use of Yota phones inside Executive Office of the Presidency during the Obama Administration — Trump even issued suggested Sussmann should be put to death.

Yes, Sussmann was acquitted, but not before leaving his firm and spending untold legal fees to defend against a manufactured indictment and death threats from the former President.

Bash even seems ignorant of the first impeachment, in which Trump withheld funds appropriated to Ukraine in an attempt to extort the announcement of an investigation into Joe Biden and his kid.

On at least two more occasions, Donald Trump personally intervened into the criminal investigation of Joe Biden’s son. One was shortly after the NYPost unveiled material from a hard drive copy of a laptop attributed to Hunter Biden (as described in Bill Barr’s memoir), days before the 2020 election.

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short con-versation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

Trump intervened again on December 27, 2020, when — during the conversation where Trump first threatened to replace Jeffrey Rosen if he didn’t back Trump’s false claims of election fraud — Trump also said, “people will criticize the DOJ if [Biden, to which Richard Donoghue added an “H” after the fact] not investigated for real.”

These non-public demands regarding the investigation into Hunter Biden accompanied public demands to “Lock him up!” Trump even raised Hunter Biden in between calls to march to the Capitol on January 6.

But Bash’s worst failures involve doing an interview with the Ranking Member of the Senate Intelligence Committee and not asking him about two investigations conducted under Bill Barr that implicate confirmed and suspected disinformation with Russian ties.

As part of Barr’s effort to investigate Hillary Clinton for calling out Donald Trump’s embrace of Vladimir Putin, for example, starting in 2020 (as Trump demanded results), the Attorney General and John Durham relied on materials obtained from Russia that the Intelligence Community considered likely disinformation, a claim that Hillary had made a decision to “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.” As it is, there’s a dispute about the use of those materials, with John Brennan, claiming in his House deposition last May that this claim involved a misrepresentation of what happened.

Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.

Marco Rubio is one person who could weigh in this dispute.

But Durham didn’t stop there. He then fabricated a claim that wasn’t included in the suspected Russian disinformation: That Hillary planned to make false claims about Trump’s fondness for Russia.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia.

At a time when Trump was publicly demanding results from Durham, then, the Special Counsel made shit up, politicizing intelligence, in an attempt to find charges against Hillary Clinton.

Bash let Rubio claim it didn’t exist.

Then there’s the blockbuster of which political journalists like Bash (and her colleague, Kaitlan Collins) appear aggressively ignorant.

In January 2020 (this was in the same time period he and Durham were fabricating claims about Hillary Clinton), Bill Barr set up a side channel to ingest dirt from Rudy Giuliani, including some from known Russian spy Andrii Derkach. Via still unexplained means, that side channel discovered false claims made by FBI informant Alexander Smirnov, who has subsequently claimed to have extensive ties to Russian spies. Even though the claim was easily debunked, that dedicated side channel nevertheless failed to discover real problems with the fabricated claim that Joe Biden had been bribed by Mykola Zlockevsky. Indeed, days after Trump pressured Bill Barr about investigating Hunter Biden,  on October 23, 2020, Richard Donoghue ensured the fabricated claim would be assigned to David Weiss for further investigation.

Worse still, through the efforts of Republican congressmen and Bill Barr, that fabricated claim of a Joe Biden bribe appears to have played a key role in the collapse of Hunter Biden’s plea deal and subsequent felony conviction.

For the entirety of the time that these twin efforts to use suspected Russian disinformation to frame Hillary Clinton and Joe Biden, Marco Rubio has been either Chair or Ranking Member of the Senate Intelligence Committee — one of the few people who can demand answers when the nation’s intelligence and counterintelligence system is so badly abused that Donald Trump’s political enemies can be framed, potentially in cahoots with Russian spies.

And Dana Bash had Marco Rubio sitting right there, in a position where she, in turn, could demand answers.

Instead, she let him lie and lie and lie about Trump’s past efforts to criminalize his political rivals.

Hunter Biden is on his way to prison in significant part because of Trump’s success at criminally targeting his political enemies. And Dana Bash never told viewers that Trump already has a documented record of doing just that.

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Jim Risch Demands that Avril Haines Formally Tell Us He Is Lying

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The Senate Intelligence Committee had a hearing on election interference yesterday. Among the pieces of news is that the US intelligence community is sharing intelligence with European partners in advance of the EU Parliamentary vote next month to alert them to foreign interference efforts, something that was pretty clear to me but which journalists and European-based privacy activists had denied.

The entire hearing was undergirded, however, by a truth and a lie aspiring Donald Trump running mate and Vice Chair of the committee, Marco Rubio, offered up.

The truth is that if the IC says foreign spooks are trying to hurt one candidate, supporters of the opposing candidate will refuse to believe that claim.

For eight years, of course, Republicans have institutionally refused to believe that Russia tried to hurt Hillary and tried to help Trump. That made supporters of both parties trust their party more than the spooks. And in the aftermath, Trump has carried out a sustained campaign to get his followers to distrust The Deep State.

So the problem, at least for the MAGAts that Rubio wants to make him Vice President, is worse than Rubio said.

Rubio made several false claims in his comment, however.

Rubio: No matter who puts it out there, the candidate on the other side of it, their followers are going to question whether it’s the government interfering in the election themselves. And it’s not helpful, and I use this example because it’s a very recent one, when the whole laptop situation happened, the Hunter Biden laptop, a number of former intelligence officials, I get it they’re formers, no longer in the employ of any of these agencies, but that title carries weight, all signed a letter saying, “this has all the hallmarks of a Russian disinformation campaign.” We know now that it was not a disinformation campaign. I don’t want to get into the particulars of what was on it, I’m just saying it was not a Russian disinformation campaign.

But the result of it was that social media companies would not allow anyone to post the articles — and there was a media blackout; it could not be reported in any other except for one place, and so what happens as a result of that, whether it had an influence on the election or not, the result of it now is that we have some section of the country who repeatedly says things like the intelligence community interfered. [my emphasis]

Most obviously, Rubio claimed that “the result of [the letter 51 former spooks sent out] was that social media companies would not allow anyone to post the articles.” The letter from the spooks was dated October 19. The social media companies started throttling links to the NYPost on October 14. Days before the spooks’ letter, the social media platforms had already begun reversing their decision.

Rubio’s claim of causation defies physics.

That’s not his only false claim. Rubio certainly believes that the release of the hard drive was not a Russian disinformation campaign. Which is not what the former spooks said anyway — they said it might be a Russian information operation. But even four years on, it’s not certain what happened to Hunter Biden’s laptop before it was turned over to the FBI, and Hunter claims with some evidence that it was altered by Rudy before it was released to the NYPost.

I laid out some reasons we couldn’t be sure back in October, when Bret Baier made this false claim in a gotcha with Leon Panetta.

There are still more. For example, the FBI’s apparent uncertainties about even the date of a payment made from Hunter’s Venmo to someone the government claims is a stripper suggest they have not reviewed what happened to Hunter’s digital life after one of his devices was stolen in August 2018. Hunter said in January 2019 — before the laptop ultimately shared with John Paul Mac Isaac was packaged up — that he believed that theft happened when he was with a Russian sex worker. More recent filings have made clear that — contrary to a whole lot of credulous reporting — the laptop shared with the FBI is not an exact match with his iCloud account, which means device content made while in treatment from Keith Ablow does not have the same kind of validation that other data does. And given there are signs of compromise to Hunter’s accounts going back years, it’s not clear anyone has ruled out earlier compromise.

The FBI has never even done an index of everything on the laptop.

Unless someone else in government did such analysis — unless David Weiss’ prosecutors are sitting on more thorough analysis than they have shared with Hunter Biden — the FBI simply never did the work they would have needed to do to find out if the President’s son was compromised by Russians, whether spies or criminals, or some other foreign actor.

I don’t doubt that Rubio believes that the IC is more certain though.

Things disintegrated from what I think was a good faith concern (albeit one without any kind of accountability) on Rubio’s part to a rant by Jim Risch.

He thinks it is Avril Haines’ job to call out people who have access to intelligence who make false claims. He says he’s as concerned that 51 private citizens made a claim that remains true — that, in their opinion, the laptop, “has all the classic earmarks of a Russian information operation” — as he is that Russia will attack US democracy again,

Risch: I’m as concerned with this sort of thing as I am with foreign interference on the election process. This was deplorable, these 51 people saying this was Russian activity when we all know now that it wasn’t. I mean, these were 51 people that had very significant influence in American society and they sent this letter saying this was Russian influence.

Again, Jim Risch says it is as bad that experts express their well-substantiated opinion as it is that hostile nations target our democracy.

He demanded that Haines promise to go out and tell the American people if private individuals say something false this year.

What about this sort of thing, where it’s domestic interference, that’s obviously false. Who’s got the responsibility for standing up and looking in the camera and saying, folks, don’t count on this it’s not true. Is that going to be your responsibility?

Haines: Sir, I think … look … my responsibility with respect to formers that speak out and provide the wealth of their experience and knowledge in such circumstances is not to determine what they should or shouldn’t say, but rather to ensure that they’re not disclosing classified information, that we’re protecting that, and dealing with that, it’s not —

Risch: What if it’s false? using their robes of, … having knowledge of security matters and intelligence matters and you know it’s false. Is that your response, or you just say, nah I’m not gonna get involved in that.

Haines tried to correct Risch’s false representation of what the spooks actually said, noting that their experience made them suspicious (but stopping short of stating as fact that it was an information operation).

Haines: I don’t understand, because I think — first of all, I think they said that their experience makes them deeply suspicious of that activity.

Risch lied and said they had said something more.

Risch: They went a little further than that, I think, but I’ll take your characterization of that. And if you know that that’s false? Then you come into the information that it’s false, is it your obligation or not your obligation to stand up, look in the camera and say, folks, when you’re voting don’t take this into account.

Haines: Sir I don’t think I could make sure that I’ve even read everything that a former might have said or that anybody else is on these issues, so no, I don’t think that it’s appropriate for me to be determining what is truth and what is false in such circumstances.

It went on and on, with Jim Risch wailing about people with privileged access to intelligence — people like him — who make false claims. Sadly, no one ever strongly laid out Risch’s false claims, and Mark Warner even professed to be sympathetic to Risch’s view.

Risch: But what if you know. You’re sitting here, you’re the center of intelligence in America, right there, and this has come out and you know it’s false. What’s your obligation? Or do you have any?

Haines: I think my obligation is to ensure that the best intelligence is being provided to the President, to the Federal government, to the Congress, and where possible, to the American people, through declassification, which we would do.

Risch: That’s not calling out someone who stands up and purports to have intelligence information that you know is false?

Haines: Sir, if I were to — first of all, I’m not sure I’m the best arbiter of what is true and false, and secondly–

Risch: Let’s say, in a particular instance, you’ve seen the paper. You know it’s false. Let’s take that instance. What do you do?

Haines: I mean, it depends on the situation. If we’re talking about a fake video that was

Risch: It’s just what I said: someone with intelligence credentials stands up and says I know this from an intelligence standpoint and you know, as the Director of National Intelligence, that it’s false.

Haines: No, I do not consider that to be part of my responsibility. If there is disinformation that is put forward — false information — then we have the capacity to authenticate it as false, we will do so, basically to our customers, and there will be a process [inaudible and crosstalk] it may be to the public, it might be classified information, it might be anything else, I don’t what the circumstances are. It’s too much of a hypothetical.

Risch: I’m not making progress so I’m going to give it back to you.

Warner: My sense is it would be the responsibility of the FBI if it were proven. I’m not sure if we want the Director of National Intelligence commenting about a domestic statement made by an American, but I understand your point.

Risch: Well, that’s the purpose of this hearing, is to find out how American voters are going to be, uh, kept informed if it is true or false.

Warner: It is, our purview, at least, is focused on that foreign influence. But I understand your point.

Of course, the logical end point of Risch’s complaint is quite clear: He has demanded that Avril Haines go make a public statement that, in spite of Risch’s privileged access to intelligence, he is lying. And Marco Rubio is too!

It doesn’t stop there.

If Haines is supposed to police truth claims by private citizens, she would be obliged to come out publicly and say that Rudy’s public claims about Joe Biden were not just false, but fabrications of the Russian spies he was soliciting.

According to Jim Risch, not only should John Ratcliffe have publicly debunked Donald Trump’s false claims about Italy hacking voting machines via the thermostat (or whatever version of that nutjob story he was telling), but Haines today should formally debunk false claims that Trump is making about Solar Winds as part of his criminal defense.

Jim Risch is demanding that Avril Haines intervene and call him — and call Donald Trump — liars.

 

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DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

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Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.

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