“The Fraudsters Complain the Loudest and the Fastest:” Legacy Media Ignores Import of Gaza Condom Fact Check

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At a weird appearance in the Oval Office rife with awkward projections that Elon Musk believes he is more powerful than Trump (here’s the full CSPAN video), a journalist asked Elon how — given the egregious error he made about condoms and Gaza — we should believe anything he said.

 

 

The exchange is bad enough: Elon basically confessed, in front of Trump, that a hoax Elon started that traveled first to Trump propagandist Karoline Leavitt and from there, through Jesse Watters’ exaggerations on Fox News, into several repetitions of the false claim by Trump was wrong.

 

 

The entire point of this presser was to substantiate Trump’s false (and undocumented) claim that DOGE [sic] had found billions of dollars of waste, fraud, and abuse and use that to, first, pressure judges who are putting brakes on DOGE and, then, justify giving DOGE [sic] authority to fire a bunch of people via Executive Order.

When Trump asked Elon to substantiate such claims, Elon instead vaguely pointed to people who were wealthy even though they had meager salaries — not something that should be under his review. He listed other things that are known — and were known, during Trump’s first term — which are archaic but not fraud.

And in that appearance, a journalist called Elon out for inventing something about Gaza that led Trump to lie publicly.

That should have led to stories about how, in Trump’s presence, Elon admitted he makes shit up and Trump repeats them.

For the most part, it didn’t happen:

  • NYT noted that Elon offered no proof of fraud, but did not mention the proof that Elon got caught in a lie.
  • WaPo focused on the EO, but later explained that neither Trump nor Musk offered proof — but didn’t mention he got caught in a lie.
  • Politico focused on the EO, but later noted that Elon said he would police his own conflicts.
  • In an analytical piece, CNN claimed that Elon offered examples of fraud (which is false), but didn’t mention Gaza.

After airing Elon about scrutiny he claimed he was getting, WSJ did mention the Gaza question.

Asked about the Trump administration’s false assertion that the federal government sent $50 million worth of condoms to Gaza, the billionaire acknowledged that he might at times promote erroneous information. “Some of the things that I say will be incorrect and should be corrected,” Musk said. “Nobody is going to bat 1,000.”

But WSJ didn’t pursue the implication of it: that Elon got caught in a false claim.

Indeed, the only specific example that Trump mentioned was funding FEMA spent in NYC to house migrants — something approved by Congress — for which the staffers have been fired (as I’ll return to, Trump’s DOJ is already misrepresenting this in courts), was also based on an Elon lie.

The Trump administration said on Tuesday that it had fired four employees from the Federal Emergency Management Agency, including the agency’s chief financial officer, over their roles in disbursing federal funds to house migrants in New York City hotels.

The firings capped a startling chain of events that began on Monday with an early-morning social media post by Elon Musk who claimed, misleadingly, that FEMA had recently sent $59 million meant for disaster relief to New York City to pay for “high end hotels” for migrants, and who called the expenditure unlawful.

New York City officials raced to clarify that the federal money had been properly allocated by FEMA under President Joseph R. Biden Jr. last year, adding that it was not a disaster relief grant and had not been spent on luxury hotels.

Nonetheless, just two hours after Mr. Musk’s post, FEMA’s acting director, Cameron Hamilton, announced that the payments in question “have all been suspended” — even though most of the money had already been disbursed — and that “personnel will be held accountable.”

By Tuesday morning, roughly 24 hours after Mr. Musk’s post, the Trump administration had followed through on one part of its pledge.

Elon also made a false claim that they had turned on AIDS prevention — in one of the state lawsuits, Washington State presented a case where funds for AIDS prevention programs was being withheld.

This press conference consisted of Elon (and Trump) making false claim after false claim.

It also consisted of Trump lying over and over, without proof, about how one only needed to look for fraud to find it. No one asked why he hadn’t looked in his first term. Indeed, several times he blamed Biden for problems that have existed for decades.

And yet, at best, journalists instead claimed only that Elon and Trump simply presented no proof.

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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 Stewing because of Lies Stephen Miller Fed Him During the Campaign

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Thus far, Trump’s biggest success on immigration in his second term has been to claim credit — twice! — for things that Sleepy Joe Biden did, in one case years ago.

He threatened sanctions on Colombia, only to agree to let Colombian President Gustavo Petro send planes to fetch deportees, sometimes in Colombian military planes, rather than receive them in US military planes.

He threatened sanctions on Mexico, only to boast after Claudia Sheinbaum committed to put 5,000 fewer Mexican troops on the border than are already there, the same 10,000 that Biden obtained years ago.

He threatened sanctions on Canada, only to boast that Justin Trudeau agreed to the same $1.3 billion in investments to counter fentanyl trafficking he put in place in December.

As for his efforts to round up and deport migrants in the US? Almost two weeks ago, I noted that the quotas ICE introduced to try to boost the deportation numbers fell wildly short of delivering the deportations Trump had promised his rubes, to say nothing of the way those quotas will lead to deportation of non-criminal migrants instead of the violent criminals Trump claims to be targeting. Almost two weeks ago, Trump’s flunkies confessed they would never be able to meet his promises for mass deportation.

The fate of a highly publicized raid in Aurora last week is a spectacular case in point.

On Thursday, shortly after the raid, the Fox News propagandist whose job it is to stoke fear about migration, Bill Melugin, first celebrated the “massive” raid, only later to reveal the raid had resulted in far fewer arrests than promised and just one arrest of a Tren de Aragua member. ICE immediately blamed its failure to detain more people on leaks.

That same day, Tom Homan announced he may have to halt the kind of embed ICE has been all too happy to give Melugin, because of leaks or operational security; he did not say that truthful reports to Fox viewers about his failures gets him in trouble with the boss. Tom Homan can’t afford to have Trump know that this massive raid found only a single Tren de Aragua member.

The raid focused on an apartment complex that had been the focus of a wildly propagandistic Trump campaign event headlined by Stephen Miller last year.

Both reporting sympathetic to migrants and that of mainstream outlets describes what actually happened, why the raid failed to lead to the number of arrests Trump promised: Heavily armed officers swarmed the building and knocked on every door, but after residents didn’t open up, they finally left. (Update: Elevating this really good account of the raid GinnyRED57 put in comments.)

Heavily armed federal agents raided apartment buildings across metro Denver early Wednesday in a search for Venezuelan gang members and other migrants under the Trump administration’s mass deportation effort targeting major cities.

At least two dozen officers carrying high-powered weapons stormed several complexes before sunrise. In some cases, they were backed by large, military-style vehicles.

The Department of Homeland Security said on social media that it was targeting 100 members of the Venezuelan gang Tren de Aragua for arrest and detention. It did not say how many people were taken into custody.

The operation included officers from Immigration and Customs Enforcement; the FBI; the Drug Enforcement Administration; and the Bureau of Tobacco, Alcohol, Firearms and Explosives.

[snip]

At an apartment complex in Denver, a 31-year-old Venezuelan man said that shortly after 5 a.m., ICE agents and other federal officers began yelling and loudly banging on every door.

The man, who asked that his name be withheld because he was afraid of being deported, said residents discreetly peered out their windows as large trucks and unmarked vehicles entered the parking lot.

Several residents said eight people were arrested at the complex.

People “hid with fear,” “didn’t open their doors” and remained “quiet without saying anything,” he said after all the agents had left.

In other words, while ICE had a few specific targets, they had no warrants for the vast majority of residences. They just kept knocking and knocking and knocking. And because the residents knew their rights, they didn’t open up.

It’s probably no surprise that this story from NBC is coming out days after the flopped Aurora raid. Trump is angry that his deportation numbers are falling so far short of what he promised his supporters.

Agents at Immigration and Customs Enforcement are under increasing pressure to boost the number of arrests and deportations of undocumented immigrants, as President Donald Trump has expressed anger that the amount of people deported in the first weeks of his administration is not higher, according to three sources familiar with the discussions at ICE and the White House.

A source familiar with Trump’s thinking said the president is getting “angry” that more people are not being deported and that the message is being passed along to “border czar” Tom Homan, Homeland Security Secretary Kristi Noem, White House Deputy Chief of Staff Stephen Miller and acting ICE Director Caleb Vitello.

“It’s driving him nuts they’re not deporting more people,” said the person familiar with Trump’s thinking.

[snip]

Meanwhile at ICE, Vitello told agents in January to aim to meet a daily quota of 1,200-1,400 arrests. According to numbers ICE has posted on X, the highest single day total since Trump was inaugurated was just 1,100, and the number has fallen since that day. On Tuesday of this week, arrests of immigrants were over 800, according to a source familiar with the numbers. But last weekend, there were only about 300 arrests, another source told NBC News.

In order to fulfill Trump’s Inauguration Day promise of “millions and millions” of deportations, the Trump administration would have to be deporting over 2,700 immigrants every day to reach 1 million in a year.

And, as NBC News has reported, arrests do not always equal immediate detentions, much less deportations. Of the more than 8,000 immigrants arrested in the first two weeks of the Trump administration, 461 were released, according to the White House.

Of course Trump is pissed that his biggest immigration success so far was stolen from Sleepy Joe Biden.

Of course Tom Homan is pissed that he can’t deliver what he promised.

Of course ICE is squirmy because even if they could meet their quotas — even if those migrants in Aurora, CO against whom ICE had no probable cause of a crime willingly opened their doors so ICE could arrest and deport them — the number of deportees would still fall far short of Trump’s goal.

But this all arises from the false expectations set during the election — from the lies Stephen Miller told, over and over and over and over and over, about the number of criminal migrants.

Trump is furious that his thugs can’t fulfill his promises. But those failures arise not through want of trying. Rather, those failures stem from the fact that reality in no way matches the hellhole Miller pitched for Trump, the imaginary hellhole Miller used to get voters afraid enough to vote for Trump.

Trump has redirected virtually all instruments of US national security to chase Stephen Miller’s lies. Not only is it going to lead to ongoing fury from the Boss, because reality will never match the propaganda Miller spun. But by neglecting the things that really do pose much more urgent threats — by destaffing investigations into real terrorists or operations to counter real ransomware attacks — Trump leaves America vulnerable in myriad ways.

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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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Two Days In, Pam Bondi’s DOJ Is Already an Ethical Swamp

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Reuters was the first to track the travails of Ed Martin, the Jan6 riot attendee turned US Attorney for DC who moved to dismiss the prosecution of one of his clients on January 21, and only two weeks later, on February 4, moved to withdraw from the case.

On January 6, 2021, Martin posted on X, then called Twitter, that he was at the Capitol himself, describing the day as “Like Mardi Gras in DC today: love, faith and joy.”

Before becoming Washington’s top prosecutor, he appeared as an attorney for three people convicted of participating in the riot, according to court records. Two of those cases ended before Trump took office; the third, against Joseph Padilla, was still ongoing on January 21 when Martin’s office filed a motion bearing his name asking a court to drop the charges.

State rules in Missouri, where Martin is licensed, bar government lawyers from handling cases involving their clients without written consent.

A spokesperson for the U.S. Attorney’s office did not immediately respond to a request for comment. A private spokesperson for Martin said he is in complete compliance with the requirements for his position.

On Wednesday, Martin sent an office-wide email seen by Reuters in which he said he had “stopped all involvement” in the cases more than a year and a half ago, that he had handled them pro bono, and said he was “under the impression that I was off the cases.”

He said the U.S. Attorney’s career ethics lawyer asked him about the cases last week and complained that it “immediately leaked to the media.” This leak, he said, was both “personally insulting” and professionally “unacceptable.”

When Martin did finally move to drop off the case he had gotten dismissed weeks earlier, he offered the kind of dumb excuse you expect from a Trump flunkie.

Undersigned counsel respectfully moves the Court to withdraw as a counsel of record in this matter.

Mr. Padilla noticed his appeal in this case in September 2023. ECF No. 108. From that point forward, he was represented by an attorney working with the Office of the Federal Public Defender in New Mexico. That defender entered her appearance in this case on November 1, 2024. ECF No. 122. Although undersigned counsel has not represented Mr. Padilla in connection with postconviction litigation, counsel remains listed as counsel of record on the docket. Accordingly, as the case has now been dismissed, and as the undersigned does not currently represent Mr. Padilla, counsel requests that the Court grant this motion so the docket may accurately reflect this fact. This motion has been served upon the defendant personally. LCrR 44.5(d). Mr. Padilla has no objection to this motion.

It turns out the DC Bar membership for the Acting US Attorney for DC lapsed. His Bar membership is not in good standing.

Case Name: USA v. PADILLA
Case Number: 1:21-cr-00214-JDB

Filer:
Document Number: No document attached
Docket Text:

NOTICE of Provisional/Government Not Certified Status re [126] Proposed MOTION to Withdraw as Attorney Edward Martin by Edward Martin. by JOSEPH LINO PADILLA. (Martin, Edward).

Your attorney renewal/government certification has not been received. As a result, your membership with the U.S. District & Bankruptcy Courts for the District of Columbia is not in good standing, and you are not permitted to file. Pursuant to Local Criminal Rule 57.21.1, you must immediately correct your membership status by following the appropriate instructions on this page of our website: https://www.dcd.uscourts.gov/attorney-renewal.

Please be advised that the presiding judge in this case has been notified that you are currently not in good standing to file in this court. Renewal Due by 2/12/2025. (zhcn)

It further turns out that when Martin wrote a very angry letter to Judge Amit Mehta telling him the Oath Keeper seditionists whose sentences Trump commuted, but did not pardon, should have no release conditions, he signed that letter over his DC Bar Membership, which we’ve now learned was not in good standing a few weeks later.

It’s a big mess. The activist group that has gotten some of Trump’s other January 6 lawyers sanctioned is trying to make it a bigger mess, at least in Missouri, which specifically prohibits playing both sides of a legal issue.

Activist legal group the 65 Project filed a bar complaint on Thursday against Edward Martin, interim U.S. Attorney for the District of Columbia, in Missouri, where he is licensed to practice law, a day after Reuters reported the potential conflict.

Martin last month asked a judge to drop charges against a man who took part in the January 6, 2021, Capitol assault whom he also represented as a defense attorney, after Trump on his first day in office granted clemency to all the nearly 1,600 people charged with playing a role in the riot.

Lawyers generally are prohibited from taking both sides in the same case and U.S. Justice Department regulations require lawyers to step aside from cases involving their former clients for at least a year.

State rules in Missouri, where Martin is licensed, also bar government lawyers from handling cases involving their clients without written consent.

“When President Trump appointed Mr. Martin to serve as interim U.S. Attorney for the District of Columbia, Mr. Martin became duty-bound under the rules of professional conduct to abstain from any role in his former clients’ criminal cases,” said Michael Teter, managing director of the 65 Project, which has brought bar complaints against Trump-affiliated lawyers, in a statement.

The complaint also notes that Martin filed the motion to dismiss for Timothy Hale-Cusanelli, after doing fundraisers for the Hitler cosplayer.

In addition, Rule 4-1.7 also prohibited Mr. Martin from appearing on behalf of his client, the United States, in Mr. Hale-Cusanelli’s criminal matter after he held a fundraiser for Mr. Hale-Cusanelli and spoke glowingly of the convicted felon.

Still, two days into Pam Bondi’s tenure as AG, things are only getting started. Consider this paragraph of Bondi’s memo entitled, “RESTORING THE INTEGRITY AND CREDIBILITY OF THE DEPARTMENT OF JUSTICE,” which attempts to comply with Trump’s Executive Order purporting that DOJ has been weaponized. (See this Lawfare post for links and analysis of all of Bondi’s memos.)

I hereby establish the Weaponization Working Group, which will be led by the Office of the Attorney General and supported by the Office of the Deputy Attorney General, the Office of Legal Policy, the Civil Rights Division, the U.S. Attorney’s Office for the District of Columbia, and other personnel as necessary to achieve the objectives set forth herein. The Weaponization Working Group will conduct a review the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States over the last four years, in consultation with the heads of such departments and agencies and consistent with applicable law, to identify instances where a department’s or agency’s conduct appears to have been designed to achieve political objectives or other improper aims rather than pursuing justice or legitimate governmental objectives. The Department of Justice will provide quarterly reports to the White House regarding the progress of the review.

It puts the following people in charge of reviewing whether investigations into Donald Trump were weaponized:

  • Bondi’s own office, barely three months after she signed an amicus in the appeal of his documents case and who also perpetuated some of Trump’s false voter fraud claims
  • The Office of Deputy Attorney General, currently run by Trump’s defense attorney Emil Bove, soon to be run by Trump’s defense attorney Todd Blanche
  • Office of Legal Policy, which will be led by Ken Paxton’s former deputy
  • Civil Rights Division, to which Trump has nominated Harmeet Dillon, who worked for Trump’s campaign in both 2020 and 2024; she also represented the RNC in a Voting Rights lawsuit filed by a Michigan Civil Rights Group
  • The DC US Attorney’s Office, run by Martin, who’s already struggling to contain his conflicts (and who was almost certainly among the 1,000 or so people investigated,  but not charged, for January 6)

Literally every one of the people overseeing this review has a major conflict. If they were ever to file criminal or civil charges against a competent judge, it’d be laughed out of court for all the conflicts. Plus, Bove and Blanche have already made claims about these investigations that have been rejected by judges.

Remember, Bondi promised to consult with career attorneys about such conflicts — but they’ve already reassigned the senior most of them, Brad Weinsheimer.

And this is what Bondi does in a memo claiming to “restore the integrity and credibility of DOJ.”

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How to [Attempt to] Get Republicans to Object

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Axios did a piece the other day on the pressure by progressive groups on Democrats to fight harder. It included several quotes saying, “you’ve got the wrong focus.”

Why it matters: Some lawmakers feel their grassroots base is setting expectations too high for what Democrats can actually accomplish as the minority party in both chambers of Congress.

  • Sen. Richard Blumenthal (D-Conn.) told Axios: “What I think we need to do more is: Put the onus on Republicans, so that the calls that we’re getting are directed toward Republicans.”
  • “There has definitely been some tension the last few days where people felt like: you are calling the wrong people. You are literally calling the wrong people,” said one House Democrat.

Blumenthal and his anonymous colleague are not wrong. While Democrats have had some splashy events this week — staging protests at one after another Agency that Musk’s DOGE [sic] has taken over, sending letters and more letters, and filibustering all night before Russ Vought was confirmed on a party line vote — such efforts had the sum effect of getting press attention, laying a foundation going forward, and killing time until the inevitable Vought confirmation. But it didn’t stop the inevitable — nor could it.

Indeed, in the time since Dems have ratcheted up their efforts, Trump has actually had more success with wavering Republicans, security party line votes for two of his most outrageous nominations, Tulsi Gabbard and RFK Jr, from Senators like Susan Collins, Bill Cassidy, and Todd Young. Trump is doing something — it may be primary threats, it may be quiet concessions on other issues, like the Canada tariffs — to get these Senators to vote against their own power.

Meanwhile, contra a really asinine column from Ken Klippenstein conflating a legal strategy largely pursued by civil society with the  media strategy described above, with a few exceptions (like one of two lawsuits that have enjoined Trump from halting grant funding), the lawsuits that have succeeded in slowing the implementation of Trump’s work have been launched by civil society, including unions.

Some of what has been achieved in recent days (see JustSecurity’s Litigation Tracker for others):

  • A bunch of retirees got Judge Colleen Kollar-Kotelly to limit any access and dissemination of Treasury data to two DOGE people (one of whom resigned after WSJ exposed his support for eugenics), until further litigation. This suit also got statements from DOJ about the access that conflict with public reporting, which may be useful going forward.
  • Some unions got Judge George O’Toole to delay the deadline for the “fork” resignation offer until Monday, allowing further legislation.
  • A dispute over whether DOJ can share a list of FBI agents who worked the January 6 cases outside of DOJ will continue until tomorrow.
  • Both Judge John McConnell (in a case brought by Democratic Attorneys General) and Judge Loren AliKhan (in a case brought by NGOs) enjoined Trump from withholding grant funds.

These are legal judgments, though, and in at least the latter case, Trump seems to be either defying it or unable to reverse steps already taken. Most notably, Head Start programs around the country are having problems accessing their funding, in spite of both the dual injunctions and the Trump administration claims that Head Start would have been exempt anyway.

[A] growing number of Head Start grant recipients, which operate on razor-thin margins, have reported delays in accessing approved grant funding, according to the National Head Start Assn. While most Head Start programs have not experienced major disruptions, some have had no other option but to close down services, while others are scrambling to find other funding sources to keep their doors open, the association said.

As of Thursday — 10 days after the federal freeze was announced — the association said at least 52 programs across 22 states, D.C., and Puerto Rico are still experiencing funding delays. The programs, which serve nearly 20,000 children from birth through age 5, report receiving “pending” or “in process” messages when they request to draw down funds from their grant from an online payment system.

Something more certain happened with USAID. When DOGE [sic] started IDing things to defund, Republicans like John Cornyn and Bill Cassidy called to exempt PEPFAR, the George HW Bush program funding AIDS drugs in poor countries. But even though PEPFAR reportedly got a waiver from cuts, AIDS drugs nevertheless remained in warehouses, inaccessible.

Marco Rubio, who like the sucker he is was belatedly named Acting USAID Administrator just as this started to blow up, tried to avoid accountability for the problems, suggesting that programs were simply incompetent to ask for a waiver.

But Rubio, on a Latin America tour, also said he was issuing waivers which would allow for “immediate” and “life-saving” aid to continue after President Donald Trump ordered a 90-day suspension on taking office.

“I don’t know how much more clear we can be than that,” he told reporters in Costa Rica.

“I would say if some organization is receiving funds from the United States and does not know how to apply a waiver, then I have real questions about the competence of that organization, or I wonder whether they’re deliberately sabotaging it for purposes of making a political point,” said Rubio, a former Republican senator who long voted for foreign assistance.

Nevertheless, Rubio fired all but around three hundred USAID workers (of more than 10,000), waggling around a word, “insubordination,” Trump flunkies elsewhere are using.

Secretary of State Marco Rubio, who took control of U.S.A.I.D. as acting administrator on Monday, insisted during a Fox News interview this week that the takeover was “not about getting rid of foreign aid.”

“But now we have rank insubordination,” he said, adding that U.S.A.I.D. employees had been “completely uncooperative, so we had no choice but to take dramatic steps to bring this thing under control.”

On Thursday, he reiterated the promise that some workers would be offered exemptions to minimize the hardship of the sudden recall. The pledge was made first in a notice put on the U.S.A.I.D. website Tuesday night that announced that employees around the globe would be put on administrative leave or let go by Friday.

Two unions that represent some of those affected — represented by Democracy Forward, the same legal NGO behind some other lawsuits — sued. In their complaint, they described some of the havoc caused already and explained why Rubio’s chaotic efforts to disclaim the damage fail.

23. As a result of these actions, most functions of the agency immediately halted, with life-threatening consequences. Clinics stopped distributing HIV medication.12 Staff who operate humanitarian operations at refugee camps in Syria were told to stop work, leaving thousands of people vulnerable to instability and violence at the hands of ISIS.13 Soup kitchens that feed nearly a million people in famine-stricken Khartoum were shut down.14 Toddlers in Zambia were deprived of rehydration salts to treat life-threatening diarrhea.15 Doctors at U.S.-funded medical facilities in Sudan that treat severely malnourished children were forced to choose whether to obey Defendants’ orders and “immediately stop their operations or to let up to 100 babies and toddlers die.”16

[snip]

25. Second, on February 1, 2025, the State Department announced a “limited waiver” for “[l]ife-saving HIV care and treatment services, inclusive of HIV testing and counseling, prevention and treatment of opportunistic infections including TB, laboratory services, and procurement and supply chain commodities/medicines” and “[p]revention of mother-to-child transmission services, inclusive of commodities/test kits, medicines and PrEP for pregnant and breastfeeding women.”19

26. These waivers offered little –to no relief for USAID partners who suffered from defendants’ freeze in funding. They were not “self-executing by virtue of the announcement,”20 so contractors and grantees scrambled to reach USAID contacts to ascertain if they were covered by the waiver. But because agency staff had already suffered severe cuts, groups doing lifesaving work were unsure how to request a waiver and received little to no information about the status of such requests.21

Because of the chaotic nature of the attack on the US government, because this is all being done by men who excel, first and foremost, at dodging accountability for their failures, this will continue to happen. Even if Trump claims to exempt stuff, things will still get shut down.

It will not change without some (more public and more aggressive than they’re already provably doing) pushback from Republicans, too. Particularly if and when it becomes clear that Trump is simply defying court orders.

And that’s why Richard Blumenthal is not wrong. There needs to be far more attention focused on Republicans. It’s far too easy — and defeatist — for Democrats to imagine that screaming louder at Democrats will fix this, because the most it will do is provide some nice PR moments.

That’s a huge task. But not impossible, particularly not if more people focus on better messaging to Republicans rather than louder yelling at Democrats.

Make the damage visible and accountable to Republicans

I said from the start of this that the effort to shut down government will make visible things that government does that most people ignore. And the effects are already being felt — and felt in red states. As one example, in the lawsuit against OMB’s recision order, plaintiffs provided this declaration from a tiny West Virginia non-profit helping disabled people stay in their own homes, describing how losing funding has led it to lay off staffers and contemplate withholding services. Among the people affected are an 86-year old woman they bring to her dialysis appointments and a 19-year old who just aged out of foster care who is being trained to work at Goodwill.

These aren’t AOC or Chuck Schumer’s constituents. They are represented by Shelley Moore Capito, Jim Justice, Riley Moore, and Carol Miller (the latter of whom took to YouTube the other day insisting that Trump would take care of WV).

It is more urgent for progressive groups to identify these stories and get calls to Republicans than to flood Democrats with more calls. Better yet, buy billboards advertising how these members of Congress are letting the richest man in the world disrupt the life of an 86-year old diabetes patient.

Importantly, much of this needs to be predictive. Rather than saying, “Trump gave access to grandma’s social security and granny may not get her check,” Democrats should always pin this on Republicans: “Mike Crapo did nothing after DOGE [sic] seized control of Treasury’s computer, and that may lead to Idaho small businesses losing their government loans.

As one of a handful of Senators who’ll always be among potential swing voters, Susan Collins needs to be a specific focus — not because it’ll work, but because she needs to be held accountable for the effect of her capitulations. In an interview with a local outlet, she listed a number of actions she deems illegal, but said she’d still vote for Russ Vought, even though he promised to pursue those illegal activities.

“I do intend to support his nomination,” Collins said. “If there are impoundments, I believe it will end up in court, and my hope is the court will rule in favor of the 1974 impoundment and budget control act.”

Time to start listing all the ways Vought’s foreseeable impoundments of appropriations will hurt Maine residents. More importantly, time to point out that Collins’ role atop the Appropriations Committee — one reason Maine voters might prefer her against a Democrat — is useless if Vought makes her role meaningless.

Until Republican Members of Congress are made to answer to the harm they’re allowing Trump do to their constituents, they’ll instead continue to respond to Elon’s more visceral threats. That vacuum needs to be filled with localized accountability.

Demonstrate the hypocrisy

Republicans know these cuts are disastrous. Most are just too cowardly to say that in public, making it more likely that any lobbying they’re doing to reverse course is in direct conversations with Trump where other quid pro quos (such as votes for unqualified nominees) might be arranged.

But there are ways to make them do so: by relying on their past statements. For example, CNN has a compilation of all the things Marco Rubio has said about USAID.

Rubio on Monday accused the agency of operating as a “global charity,” telling Fox News, “They have basically evolved into an agency that believes that they’re not even a US government agency.”

But a CNN KFile review of Rubio’s past comments shows he has been for more than a decade a major supporter of foreign aid and USAID, which in fiscal year 2023 distributed more than $40 billion in foreign aid to more than 160 different countries.

Rubio’s most recent comments directly contradict years of support and praise he has directed toward USAID, including a tweet he posted in February 2017 that said, “Foreign Aid is not charity. We must make sure it is well spent, but it is less than 1% of budget & critical to our national security.”

During his Fox News interview Monday, Rubio also dismissed concerns that scaling back USAID’s presence could allow China to expand its influence in developing nations.

But just three years ago, Rubio argued the exact opposite, urging the Biden administration in a 2022 letter to prioritize USAID’s funding as a key tool to “counter the Chinese Communist Party’s expanding global influence.”

>A longtime defender of US foreign aid, Rubio pushed back against criticism of the agency in repeated comments uncovered by CNN — defending aid as both vital and a small part of America’s overall fiscal budget.

“We don’t have to give foreign aid. We do so because it furthers our national interest. That’s why we give foreign aid. Now obviously there’s a component to foreign aid that’s humanitarian in scope, and that’s important too,” he said in February 2013.

These comments — and similar ones from other Republicans — can be used as a way to respond to the flood of disinformation from Elon and Karoline Leavitt.

Get hawkish

By abandoning US soft power overseas, the US creates a vacuum for China to fill. Many of the other actions Trump has taken — like insisting that a list of recent CIA recruits, many focused on China, be sent in unclassified email — imperil US efforts to counter China.

Both Elon and Trump have their own venal reasons to suck up to China. And Trump appears to be preparing to sell out Taiwan to China.

This is a specific example of the effort to warn of potential effects, one that could and should deploy the most hawkish language Republicans adopt (albeit focused on the country and the harm to US standing Republicans say China’s rise poses, not the people), not least because it’s an easy way to make Republicans look weak.

Unlike the focus on the 86-year old granny in West Virginia, this is divorced, somewhat, from the pain affecting Americans. But it is nevertheless a visceral issue for many Republicans and their self worth. Trump is selling them out. Make that clear.

No focus on Republicans will have an immediate effect. I’m not saying it will. But when things start falling apart, it’ll mean Democrats have already laid the groundwork for holding Republicans — all of them, not just Musk — accountable. That may not be enough, in the short term, to cure them of their terror of Trump and Musk. But it stops letting them off easy.

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Amy Berman Jackson: “Michael Fanone’s heroism will never be moot”

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Yesterday, Judge Amy Berman Jackson dismissed Danny Rodriguez’ case (which was still live based on his appeal of his sentence) as moot, per instructions from the DC Circuit.

But she used the opportunity to reiterate a number of things from the court record.

In accordance with these instructions, the Court will dismiss this case as moot.

In the interest of completeness, in fairness to the victim of this brutal offense, and in furtherance of the truth, the Court also states the following.

First, she reminded that Danny Rodriguez pled guilty to tasing Michael Fanone, which nearly killed him.

On February 14, 2023, defendant Daniel Joseph Rodriguez pled guilty to four of the crimes with which he had been charged in the superseding indictment in this case. He was represented by a highly experienced team from a Federal Public Defender’s office. When Rodriguez entered his plea, he swore that the Statement of Offense the parties had jointly submitted to the Court was truthful, including the paragraph in which he admitted, “knowingly and voluntarily,” that he “forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with Officer Michael Fanone,” and that he knew at the time of the assault “that the officer was engaged in the performance of their official duties,” or was assaulted “on account of their performance of their official duties.” Statement of Offense [Dkt. # 160] ¶ 20. See also id. ¶ 15 (“The defendant applied the electroshock weapon to the back of Officer Fanone’s neck.”). Thus, there was no trial and no jury involved in the finding that he was guilty.

She included excerpts from Rodriguez’ apology to Fanone.

My name is Daniel Joseph Rodriguez and I write this in hopes that you accept my apology. I do not write this as an excuse for my actions on January 6th, I am not writing this to the Judge, prosecution or media. I am looking at serving a long prison sentence and no letter I write is getting me out of that. Sir, I only want to apologize from the heart.

* * *

Let me start by telling you I’ve been in jail doing lots of thinking, finding God and changing. I never should have been in Washington, D.C. I came from the Los Angeles area of California and I had no business at the Capitol. . . . I should have protected you because I have deep respect for law enforcement, and I have always stood up for police officers. You are a brave man and I wish for good things for you in the future. I want to apologize to your children as well. If I could go back and change what I did, I would.

She described how, as Officer Fanone was protecting members of congress, Rodriguez took the opportunity of his capture to tase him, repeatedly.

The ragged, exhausted, outnumbered line of Capitol Police officers, with Metropolitan Police officers slowly arriving to reinforce them, is trying to keep the mob from gaining access to the inside of the Capitol through the double doors at the end of the tunnel.

Members of Congress and their staff were huddling in fear for their lives nearby. They can hear the chants. They can hear the struggle. The mob turns every possible object into a weapon.

[snip]

Officer Fanone is still thinking about how he can help: Let’s get some fresh guys up front. Let the people who are hurt move back to get assistance. He moves forward, towards the mouth of the tunnel. And another member of the mob, Albuquerque Head, takes it upon himself to put his arm around Fanone’s neck, claiming he’s there to help him. “Hey, I’m going to try to help you out of here. You hear me?” And Officer Fanone actually says, “Thank you.”

But then Mr. Head drags him down the steps and into the crowd, shouting “Hey, I’ve got one.” You can see many other protestors reacting in horror, backing away, yelling, “No,” waving, signaling with their arms to stop. But not you. Who answers Mr. Head’s call? You. You move towards the officer who is being restrained. You are then pressing the electric weapon against side of his neck below his ear. And you can hear him, because we hear it on the video, screaming in pain. He tries to pull back. He tries to get away. But you weren’t done.

You placed the weapon again at the back of his neck and begin pressing again, and the officer screams again.

And ABJ compares what Fanone said after he was revived with what Rodriguez said.

With the help of some other protestors still equipped with their own humanity, Officer Fanone manages to make his way back to the mouth of the tunnel where he collapses. He was unconscious. Sergeant Mastony had to drag him back inside. It takes about two and a half minutes to revive him. And the first thing he says when he comes to is, “Did we take back the door?”

[snip]

What does the defendant do next? While Officer Fanone is undergoing emergency treatment for potential damage to his heart, the defendant is crowing about his exploits. That afternoon, while still on the Capitol grounds, he messages the others, “Oh, my God. I did so much fucking shit and got away.” And then he says, “I tased the fuck out of the blue.”

[snip]

Some people have tried to vilify Officer Fanone, including in my courtroom, but he did nothing that day but show up to support the Capitol Police who were fighting against impossible odds, and he put his life on the line to protect the men and women of the United States Congress, the United States Capitol building, and democracy itself, against a mob. His courage and bravery were met with an assault that almost took his life, and left him unable to perform his job again. Yet his character was revealed when he came to and all he could say was, “Did we hold the line?” Meanwhile, you chose to sum yourself up with an immature, sickening boast.

And so, in dismissing the case as moot, Amy Berman Jackson reiterated the justice of the sentences against Fanone’s attackers.

Michael Fanone’s heroism will never be moot. And no proclamation or order vacating a conviction can erase the truth: that all of the individuals charged with attacking him on January 6 came into court and voluntarily swore that they were guilty, and justice was served.

Justice was served with the sentence, ABJ asserted while debunking the very premise of the pardon Trump issued.

Michael Fanone’s heroism will never be moot.

This is the reality that Republicans in Congress — the very members whom Fanone nearly died protecting — Attorney General Pam Bondi, and their boss, are all trying to rewrite.

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Republicans Continue to Cover Up Why Kash Patel Pled the Fifth

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Today, the Senate Judiciary Committee stalled the vote on Kash Patel’s nomination another week.

A bunch of Republicans are wailing that Democrats are afraid of something.

But it’s clear Chuck Grassley is.

A week ago, he released a bunch of documents he read in Kash Patel’s confirmation hearing. They show that DOJ first opened a grand jury to investigate the fake electors plot on January 31, 2022. But FBI delayed two months, from February 12, 2022, at which point they had a draft opening Electronic Communication, to April 13, when they finally approved it. (I’ve included those dates in this timeline.)

The documentation shows that on both the FBI and DOJ side, top executives approved the investigation, as required by DIOG.

Grassley claims blah blah blah it’s not clear what about politicization, based on his debunked claims about Tim Thibault (claims that Jim Jordan’s committee debunked).

Remember: Tim Thibault is one of the three FBI Agents who opened an investigation targeting Hillary Clinton and the Clinton Foundation during the 2016 election cycle, based substantially on Peter Schweizer’s book. That’s the guy the right wingers have spun up as a raging lefty. That’s the guy who was involved in stalling the investigation of Trump for two months.

But the reason Chuck Grassley is sharing this is … mostly hot air, to justify Pam Bondi’s witch hunts.

And also to justify refusing to find out what Kash Patel is covering up about his 2022 grand jury testimony. Chuck Grassley appears to be using his own misrepresentations of Tim Thibault’s role in all this to refuse to support any inquiry into Kash’s grand jury testimony, apparently claiming that the entire Jack Smith investigation — both prongs of which were predicated long before he was hired — was thereby tainted. In a letter following up on that, Sheldon Whitehouse, Cory Booker, and Adam Schiff (but no one else, up to and including Dick Durbin) urge Grassley to reconsider his refusal to demand Kash’s grand jury testimony.

We write to object to Kash Patel’s continued refusal to provide members of the Senate Judiciary Committee information essential to our consideration of his nomination to be Director of the Federal Bureau of Investigation. Mr. Patel has repeatedly refused to discuss the testimony he provided to a federal grand jury investigating Donald Trump’s unlawful retention of classified documents, as well as his invocation of his Fifth Amendment privilege against self-incrimination. We regret that you have rejected our efforts to inquire into the first-ever invocation of Fifth Amendment protection by a nominee seeking to lead the FBI.

Democrats are trying to figure out what Kash Patel believed, in October 2022, that he had criminal exposure in an Espionage Act investigation.

And Chuck Grassley wants to use the fact that the FBI stalled the January 6 investigation into Donald Trump for two months as an excuse to refuse that.

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Telling the Story of January 6 to the Judges Who Know It Best: The Two FBI Lawsuits

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There are a number of outlets tracking every legal challenge to Trump and Elon Musk’s power grabs. For example, JustSecurity has this litigation tracker, including the multiple suits (one, two, three, four, five, six, seven) that attempt to stop Elon’s invasion. Some may well succeed in enjoining Elon’s actions — but they’ll lead to a confrontation over who will enforce the orders.

Two lawsuits filed yesterday by FBI agents may be better vehicles both legally and in generating stories that might lead to pushback from Republicans. The first represents nine Jane and John Doe FBI personnel, fashions itself as a class action, and demands a jury trial; it has been assigned to Biden appointee Jia Cobb. It makes claims under the First Amendment, Fifth Amendment (and Fifth Amendment Privacy), and Privacy Act. It provides these details about how much the government spends to obtain the expertise of FBI agents.

13. FBI agents are chosen through a highly selective process, and are carefully screened for aptitude and trustworthiness.

14. FBI agents go through more than four months of intensive training at the FBI academy before beginning their duties, and attend numerous training sessions throughout their careers to adapt to new technologies and emerging threats.

15. Many FBI agents are multi-lingual and routinely interface with intelligence agencies from allied nations.

16. The training FBI agents receive is comprehensive, and in some instances, extremely expensive.

17. On information and belief, Plaintiffs assert that each agent of the FBI receives more than 3 million dollars-worth of training in a twenty (20) year career.

18. FBI agents also develop specific expertise from their assignments and field duties, much of which cannot be replicated solely by training.

The second represents seven Jane and John Doe FBI personnel, and the FBI Agent’s Association, which represents most active duty Agents; it has been assigned to the Trump appointee who presided over the Proud Boy leaders’ trial, Tim Kelly. Mark Zaid, a highly experienced lawyer in this field, is leading this suit. [Update: This case has been reassigned to Judge Cobb.]

This FBIAA suit makes two claims under the Privacy Act, a First Amendment, two Due Process claims, and this mandamus claim.

64. The provisions of 28 U.S.C. § 1361 provide a statutory basis for jurisdiction in cases seeking relief in the nature of mandamus against federal officers, employees, and agencies, and they provide for an independent cause of action in the absence of any other available remedies.

65. Defendants’ actions, as set forth above, constitute unlawful, intimidating, and threatening behavior towards Plaintiffs in response to Plaintiffs’ lawful actions of executing lawful search and arrest warrants and participating in lawful investigations of crimes committed by January 6 perpetrators.

66. Defendants do not have discretion to redefine the truth of January 6, 2021. Nor do Defendants have any discretion to recast the lawful actions taken by the FBI and the previous leaders within the Department of Justice as illegal, let alone any discretion to retaliate and disclose names.

67. Defendants have no discretion when it comes to ensuring the safety of the American people from extremist violence, let alone the safety of their own employees.

68. If no other remedy is available through which the unlawful termination orders may be rescinded, then Plaintiffs are entitled to relief in the nature of mandamus compelling Defendants to recognize Plaintiff to rescind the unlawful termination orders.

Both tell stories about Trump’s personal involvement in January 6 and describe a fear that lists of FBI Agents who worked on the January 6 cases will be used by those they investigated for retribution. The second also cites multiple cases of Jan6ers — including Enrique Tarrio, over whose prosecution Judge Kelly presided — promising retribution. [Update: As noted, this case has been reassigned to Judge Cobb.]

The second suit — the FBIAA one — substantiates its description of the events of January 6 far better, relying on opinions written by the judges who’ll preside over this case, as in these two citations to the DC Circuit opinion in the January 6 Committee’s lawsuit to access Archives documents.

13. The events of January 6, 2021, and the activities leading up to the violence that ensued on the U.S. Capitol on that day, have been well documented by courts in this circuit. Specifically, “[o]n January 6, 2021, a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States. The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol. Then-Vice President Pence, Senators, and Representatives were all forced to halt their constitutional duties and flee the House and Senate chambers for safety.” Trump v. Thompson, 20 F.4th 10, at 15-16 (D.C. Cir. 2021).

[snip]

19. “The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives. Approximately 140 law enforcement officers were injured, and one officer who had been attacked died the next day. In the aftermath, workers labored to sweep up broken glass, wipe away blood, and clean feces off the walls. Portions of the building’s historic architecture were damaged or destroyed.” Thompson, 20 F.4th at 19.

That’s not the only way the FBIAA suit foregrounds the way judges have approved of the January 6 investigation. It also describes how everything happened with the involvement of judges and much of the legal process for that went through DC.

21. Investigative efforts were centralized out of the District of Columbia federal district (“DDC”). Functionally, this meant that FBI agents swore out arrest warrant affidavits in front of DDC magistrate judges. Upon receipt and review of the sworn affidavit, DDC magistrate judges approved the FBI’s arrest warrant applications and provided a signed, lawful arrest warrant to the arresting FBI agent or FBI task force officer (local law enforcement detailed to the FBI) for execution.

22. In some instances, individuals were arrested pursuant to a grand jury indictment. In these cases, FBI agents testified in front of a federal grand jury under Fed. R. Crim P. 6. If the grand jury found probable cause based on the evidence presented, a supervising court would then issue a lawful arrest warrant for execution

23. Many of the perpetrators of the January 6 riots fled Washington, D.C., immediately after the carnage. Because of this, the FBI had to coordinate efforts across the country in order to amass evidence. This frequently entailed applying for search warrants under Fed. R. Crim. P. 41 in the district where the evidence was to be located. Again, the FBI applied for warrants via sworn affidavits presented to neutral and detached magistrate judges. In the context of search warrants for physical property (e.g., phones, clothes, stolen property), these lawful warrants were issued by a multitude of magistrate judges outside of DDC.

Every DC Judge has affirmed the import of these cases and the danger of the January 6 attack (though some have questioned the prosecution of so many trespassers). They’re all likely facing the same threats that these FBI agents are.

And they are being asked to preside over suits that pit the FBI agents who carried out this investigation against a DOJ led by Trump’s defense attorneys (including Pam Bondi, who was confirmed with the help of John Fetterman but no other Democrats yesterday).

The Mandamus requested by the FBIAA suit is a big ask — the Privacy Act violations in both suits are more likely to work. But the judges in question are likely to agree that, “Defendants do not have discretion to redefine the truth of January 6, 2021.”

According to Ken Dilanian, the FBI did turn over a list of the people involved in the January 6 investigation, though provided employee ID numbers in lieu of names.

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