Donald Trump’s Incorrect Shell Game of Appropriated Spending

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.

It’s Still Not Clear Whether Elon’s DOGE Boys Are Reviewing, Taking, or Altering Government Networks

The big news overnight in the legal fight to rein in DOGE is that SDNY Judge Paul Engelmayer has ordered Treasury to stop letting Elon Musk’s DOGE [sic] boys to snoop in Treasury’s payment system and destroy any copies of records already made from it. [docket]

the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems, if any;

This order comes on top of Judge Colleen Kollar-Kotelly’s order limiting access to Treasury’s payment system to normal employees and two DOGE [sic] employees, but the latter for read-only access [docket]:

Mr. Tom Krause, a Special Government Employee in the Department of the Treasury, as needed for the performance of his duties, provided that such access to payment records will be “read only”;

Mr. Marko Elez, a Special Government Employee in the Department of the Treasury, as needed for the performance of his duties, provided that such access to payment records will be “read only”;

Anna Bower parsed how DOJ substantiated (or not) that this was really “read only” access. Which was part of what a bunch of Democratic Attorneys General, led by Tish James, pointed to to claim they still needed a TRO, over and above the one issued by Kollar-Kotelly.

The temporary restraining order entered yesterday by the D.C. District Court in Alliance for Retired Americans v. Bessent, No. 1:25-cv-313 (D.D.C.) (“ARA”), does not change this conclusion. That order continues to permit two SGEs affiliated with DOGE to have access to the BFS payment records and payment systems, restricts their access to “read only” just for payment records and not payment systems, and does not direct that any copies of data from the systems made since the Agency Action took effect be destroyed. ARA, Dkt No. 13.

Now, I’m somewhat skeptical that Engelmeyer’s order, as issued, is sustainable. He issued the order in advance of the assigned judge on the case, Jeannette Vargas, and before the government had a chance to respond to the lawsuit.

But the lawsuits to enjoin DOGE [sic] are playing catch-up to the known facts.

And the known facts get us much closer to the being able to prove that Elon and his DOGE [sic] boys are altering code, if not hacking it, rather than simply reviewing its data.

The suit and TRO before Judge Kollar-Kotelly, filed by several unions, is entirely privacy focused.

The state AGs’ suit and TRO, which establish standing by pointing to the billions of dollars of payments they get from the Feds, argues that Elon is attempting to intercept payments to entities Trump doesn’t like. It asserts a claim repeatedly backed in public reporting, but affirmatively denied before Kollar-Kotelly: that the DOGE boys — here, self-proclaimed eugenicist Mark Elez, have altered code.

5. As of February 2, 2025, the President and Treasury Secretary, directed Treasury to grant expanded access to BFS payment systems to political appointees and “special government employees” for reasons that have yet to be provided, although one apparent purpose, upon information and belief. Upon information and belief, one purpose is to allow DOGE to advance a stated goal to block federal funds from reaching beneficiaries who do not align with the President’s political agenda. For example, DOGE was tasked with freezing payments issued by the U.S. Agency for International Development (“USAID”) and sought access to BFS payment systems to accomplish that goal.5 Virtually unfettered access to BFS payment systems was granted to at least one 25-year-old DOGE associate, Mark Elez, who, on information and belief, had the authority to view or modify numerous critical files.6 Indeed, reports indicate that Elez had administrative privileges over the BFS payment system’s code, giving him the ability to alter user permissions and “read and write” code—even if the associate had “read-only” access to the system’s data.7 Elez has since resigned from DOGE after being linked to racist social media posts.8

6. Around the same time that DOGE associates were unlawfully granted access to BFS systems, Mr. Musk began publicly stating his intention to recklessly freeze streams of federal funding without warning. On February 2, 2024, Mr. Musk posted on X (formerly Twitter), an online social media platform, that DOGE is “rapidly shutting down” various “illegal payments” made by the government to grant recipients, including payments to Lutheran Family Services to provide services to migrant children.9 That same day, Mr. Musk posted that his team “spent the weekend feeding USAID into the wood chipper.” Since then, Mr. Musk has unambiguously called for the cancellation of various streams of federal funding. For instance, on February 6, 2025, he alleged: “Billions of taxpayer dollars to known FRAUDULENT entities are STILL being APPROVED by Treasury. This needs to STOP NOW!”10 Mr. Musk has also made wild, unsubstantiated claims about the BFS payment system and suggested putting it on the blockchain.11

6 A 25-Year-Old With Elon Musk Ties Has Direct Access to the Federal Payment System | WIRED

7 https://www.wired.com/story/elon-musk-associate-bfs-federal-payment-system/

8 DOGE Staffer Resigns Over Racist Posts

9 Elon Musk on X: “The @DOGE team is rapidly shutting down these illegal payments” / X

10 Elon Musk on X: “Billions of taxpayer dollars to known FRAUDULENT entities are STILL being APPROVED by Treasury. This needs to STOP NOW!” / X

11 Fatima Hussein, “Elon Musk’s task force has gained access to sensitive Treasury payment systems, sources say,” PBS News, Feb. 2, 2025, https://www.pbs.org/newshour/politics/elon-musks-task-force-hasgained-access-to-sensitive-treasury-payment-systems-sources-say; Billy Bambrough, “‘This Needs To Stop Now’—Elon Musk Confirms Radical Doge U.S. Treasury Plan,” Forbes, Feb. 2, 2025, https://www.forbes.com/sites/digital-assets/2025/02/02/this-needs-to-stop-now-elon-musk-confirmsradical-doge-us-treasury-plan/.

It cites Elon’s insane rants on Xitter as well.

In addition to the privacy concerns addressed in the union lawsuit, the AGs’ lawsuit raises concerns about appropriations (and separation of powers), but also cybersecurity, something not included in the union lawsuit.

139. The conduct of DOGE members presents a unique security risk to States and State residents whose data is held by BFS, given that DOGE employees have already reportedly set up an unauthorized commercial server at another federal agency without a privacy impact assessment as required by the 2002 E-Government Act. Access by DOGE employees to BFS is likely to present even greater risks to the security and privacy of States’ and their residents’ data.

140. Unsecure data is susceptible to cyber attacks and identity theft. Identity theft has a significant impact on States, beyond the financial well-being of its residents. It strains law enforcement resources, damages state economies through lost productivity and consumer confidence, and raises costs for the state to redress fraudulent claims made from stolen identities for unemployment and healthcare benefits. [my emphasis]

The AGs’ suit actually doesn’t cite a source for the claim that DOGE set up a commercial server at another agency. But I think the claim comes from a lawsuit Kel McClanahan filed against Office of Personnel Management, aiming to require it to stop the all-government email DOGE [sic] set up to offer its “Fork in the Road” severance offer. McClanahan first sued, with two plaintiffs who worked at government agencies, on January 27, for a violation of the E-Government Act. [docket]

In response, the government claimed that the main theory of injury, that the government had set up the all-government email without first doing a privacy assessment didn’t apply for employees, and was moot because it had since done one, which it included here. The privacy assessment claimed this was just a Office365 account.

1.3. Has a system security plan been completed for the information system(s) supporting the project? The Office 365 mailbox has been granted an Authorization to Operate (ATO) that includes a system security plan. The government computer storing the data is subject to standard security requirements, including limited PIV access.

And it claimed that the account included only employee data.

2.1. Identify the information the project collects, uses, disseminates, or maintains. GWES collects, maintains, and uses the names and government email addresses of federal government employees. GWES also collects and redistributes responses to emails sent to those addresses, which are limited to short, voluntary, non-identifying information. Specifically, GWES contains the following:

  • Employee Contact Data: GWES collects, maintains, and uses the names and government email addresses of federal government employees. Other identifying information is not used.
  • Employee Response Data: After an email is sent using Employee Contact Data, GWES collects, maintains, and redistributes short, voluntary responses.

It largely ignored McClenahan’s claim (based largely on Reddit posts) that DOGE had installed a separate server.

But other than speculation on social media, Plaintiffs provide no evidence that OPM took any of the actions that would trigger the PIA requirement under sections 208(b)(1)(A)(i)-(ii) of the E-Government Act. Moreover, Plaintiffs disregard entirely the fact that the E-Government Act does not require a PIA when an agency is seeking to collect information about “agencies, instrumentalities, or employees of the Federal Government.”

Since then, McClanahan filed an amended complaint, which added five more plaintiffs, none of whom are Executive Branch employees (for example, one works for the Library of Congress; another is a contractor), substantiating that some of the DOGE emails went to people outside the Executive Branch, and provided additional substantiation of the Reddit claims (including raising questions about whether this could even be Microsoft365).

30. Furthermore, prior to 20 January 2025, OPM lacked the technical capacity to send direct communications to all Executive Branch employees: But just days before President Donald Trump’s inauguration, OPM did not have the capability to send a mass email of that scale, according to a person familiar with the matter. To send mass emails, the agency had used govDelivery, a cloud communications service provided by public sector IT company Granicus, a different person familiar said. The govDelivery contract had restrictions on the volume of emails available to send without incurring added costs, and the agency would not have been able to reach 2.3 million people, the approximate number of all civilian federal employees, the second person added. David DiMolfetta, OPM’s new email system sparks questions about cyber compliance Nextgov/FCW (Jan. 28, 2025), available at https://www.nextgov.com/digitalgovernment/2025/01/opms-new-email-system-sparks-questions-about-cybercompliance/402555/ (last accessed Feb. 3, 2025).

31. Additionally, OPM has used Microsoft Office 365 since at least 2021, including Outlook 365 for email. OPM, Privacy Impact Assessment for OPM – Microsoft Office 365 (May 13, 2021), available at https://www.opm.gov/information-management/privacy-policy/privacypolicy/office-365-pia.pdf (last accessed Feb. 3, 2025). Outlook 365 cannot send more than ten thousand emails per day. See Microsoft, Exchange Online limits (Dec. 11, 2024), at https://learn.microsoft.com/en-us/office365/servicedescriptions/exchange-online-servicedescription/exchange-online-limits#sending-limits-1 (last accessed Feb. 3, 2025).

32. According to the FedNews Message, “Instead [of using the normal channels], an on-prem (on-site) email server was setup [sic]. Someone literally walked into our building and plugged in an email server to our network to make it appear that emails were coming from OPM. It’s been the one sending those various ‘test’ message[s] [discussed below].” FedNews Message.

33. This statement is supported by recent reporting:

A new server being used to control these [OPM] databases has been placed in a conference room that Musk’s team is using as their command center, according to an OPM staffer. The staffer described the server as a piece of commercial hardware they believed was not obtained through the proper federal procurement process.

Caleb Ecarma & Judd Legum, Musk associates given unfettered access to private data of government employees Musk Watch (Feb. 3, 2025), at https://www.muskwatch.com/p/muskassociates-given-unfettered (last accessed Feb. 3, 2025).

34. Upon information and belief, this server and/or other systems linked to it are retaining information about every individual with a Government email address.

The amended complaint argues that the privacy impact was factually and legally insufficient.

39. Neither Biasini nor Hogan were OPM employees prior to 20 January.

40. Biasini worked at the Boring Company prior to 20 January. It is not currently known if he still works there.

41. Hogan worked at Comma.ai prior to 20 January. It is not currently known if he still works there.

42. The GWES PIA was both factually inaccurate and legally inadequate.

[snip]

54. Upon information and belief, OPM has not ensured review of a PIA for any of these systems by any legally sufficient Chief Information Officer or equivalent official.

55. OPM has not published a legally sufficient PIA or made such an assessment available for public inspection for any of these systems.

In other words, as these twin lawsuits against Treasury get closer to arguing that Elon is not looking for savings but instead altering the payment system, McClanahan continues to chase proof that Elon’s DOGE [sic] boys have added their own server which, by dint of sending emails to everyone (including people not employed by the Executive branch) with a .gov address, is collecting information on everyone with a .gov address.

Meanwhile, several other developments get closer to showing that Elon is hacking the government, not assessing it.

First, late this week, OPM removed access by some DOGE [sic] boys to more sensitive OPM systems.

Directives from the agency’s interim leadership issued late this week indicated that DOGE representatives should be withdrawn from two principal systems containing personally identifiable information for millions of federal employees, according to communications reviewed by The Post and people familiar with the developments who spoke on the condition of anonymity because of the matter’s sensitivity.

Those systems are called Enterprise Human Resources Integration and Electronic Official Personnel Folder. They hold sensitive information about employees of most federal agencies, including addresses, demographic profiles, salary details and disciplinary histories.

The Post reported Thursday morning that DOGE agents had gained access to those systems along with “administrative” access to OPM computer systems. That allowed them sweeping authority to install and modify software on government-supplied equipment and, according to two OPM officials, to alter internal documentation of their own activities.

Meanwhile, both Wired and WaPo have stories describing how a Booz Allen analyst described the DOGE [sic] access as an ““unprecedented insider threat risk;” the analyst was promptly fired.

The review, delivered Monday to Treasury officials by a contractor that runs a threat intelligence center for Treasury’s Bureau of the Fiscal Service, said that DOGE’s access to the payment network should be “immediately” suspended. It also urged Treasury to scour the payments system for any changes approved by affiliates of DOGE, which is overseen by billionaire Elon Musk, the correspondence shows. DOGE stands for Department of Government Efficiency.

A Treasury employee told The Post that the threat center is run by Booz Allen Hamilton, a large federal contractor. The company confirmed it runs the threat center, which it said is embedded within Treasury.

Late Friday, after this article appeared, Booz Allen said it had “removed” a subcontractor who wrote the warning and would seek to retract or amend it. “The draft report was prepared by a subcontractor to Booz Allen and contained unauthorized personal opinions that are not factual or consistent with our standards,” company spokesperson Jessica Klenk said. Booz Allen won more than $1 billion in multiyear U.S. government contracts last year.

In a separate communication a week ago, a high-ranking career official at Treasury also raised the issue of risks from DOGE access in a memo to Treasury Secretary Scott Bessent, including the potential breach of information that could lead to exposure of U.S. spies abroad, according to five people with knowledge of the matter, who spoke on the condition of anonymity to reflect government deliberations. The memo included recommendations to mitigate risks, which Bessent approved, said another person familiar with the matter, who also spoke on the condition of anonymity.

And while the focus at Treasury has been on eugenicist Marko Elez, whom Elon has pushed to be reinstated, closer scrutiny into Edward “Big Balls” Coristine — who is at OPM and possibly HHS — has described he has ties to hackers. Brian Krebs, who was targeted by some people in that crowd, described screen shots that suggest Coristine may have been fired for leaking internal documents to a competitor.

Wired noted that Coristine only worked at Path for a few months in 2022, but the story didn’t mention why his tenure was so short. A screenshot shared on the website pathtruths.com includes a snippet of conversations in June 2022 between Path employees discussing Coristine’s firing.

According to that record, Path founder Marshal Webb dismissed Coristine for leaking internal documents to a competitor. Not long after Coristine’s termination, someone leaked an abundance of internal Path documents and conversations. Among other things, those chats revealed that one of Path’s technicians was a Canadian man named Curtis Gervais who was convicted in 2017 of perpetrating dozens of swatting attacks and fake bomb threats — including at least two attempts against our home in 2014.

And Krebs provides chatlogs showing some of Coristine’s former associates are taking notice.

The Com is the English-language cybercriminal hacking equivalent of a violent street gang. KrebsOnSecurity has published numerous stories detailing how feuds within the community periodically spill over into real-world violence.

When Coristine’s name surfaced in Wired‘s report this week, members of The Com immediately took notice. In the following segment from a February 5, 2025 chat in a Com-affiliated hosting provider, members criticized Rivage’s skills, and discussed harassing his family and notifying authorities about incriminating accusations that may or may not be true.

Bloomberg matched Krebs’ reporting on the reason for Coristine’s firing from Path.

“Edward has been terminated for leaking internal information to the competitors,” said a June 2022 message from an executive of the firm, Path Network, which was seen by Bloomberg News. “This is unacceptable and there is zero tolerance for this.”

A spokesperson for the Arizona-based hosting and data-security firm said Thursday: “I can confirm that Edward Coristine’s brief contract was terminated after the conclusion of an internal investigation into the leaking of proprietary company information that coincided with his tenure.”

Afterward, Coristine wrote that he’d retained access to the cybersecurity company’s computers, though he said he hadn’t taken advantage of it.

“I had access to every single machine,” he wrote on Discord in late 2022, weeks after he was dismissed from Path Network, according to messages seen by Bloomberg. Posting under the name “Rivage,” which six people who know him said was his alias, Coristine said he could have wiped Path’s customer-supporting servers if he’d wished. He added, “I never exploited it because it’s just not me.”

Bloomberg tied Coristine’s past even more closely to organized abuse campaigns.

JoeyCrafter was a member of Telegram groups called “Kiwi Farms Christmas Chat” and “Kiwi Farms 100% Real No Fake No Virus,” both referencing an online forum known for harassment campaigns. Typically, the site has been used to share the personal information of a target, encouraging others to harass them online, in-person, over the phone or by falsely alerting police to a violent crime or active shooter incident at their home.

This is the kind of DOGE boy Elon has thrown at government networks — and thus far, Republicans don’t seem to give a damn that Trump has given these DOGE [sic] boys access to data on virtually all Americans, employee or no.

One thing is clear, however: There’s not a shred of evidence these boys are doing what Elon claims they’re doing.

Most of these new facts — the seeming proof that OPM isn’t doing what it claimed, the insider threat warning, the ties to hackers — are not in the AGs’ suit. And by the time the suits catch up to the facts, the complaints may look quite different.

Update: Corrected that none of the OPM plaintiffs are employees of US Courts (though they did get an email).

Trump Appointee Carl Nichols Enjoins Trump from Stranding USAID Workers

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.

How to [Attempt to] Get Republicans to Object

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.

Stephen Miller Claimed Elon Musk Was the One Elected in November

Yesterday, Stephen Miller RTed a propagandist’s attack on Jamie Raskin, in which he reframed Raskin’s legal points — that Congress has the power of the purse, that Elon Musk cannot eliminate agencies created by Congress — by suggesting they were an attack on DOGE’s [sic] efforts to “eliminat[e] waste and fraud.”

Miller suggested Democrats — defending the Constitution — hate democracy, because (Miller said) “voters have the right to elect a president to drain the permanent unelected DC swamp.”

With his RT, the Deputy Chief of Staff of Donald Trump’s White House suggested Elon had been elected.

Elon. Not Trump.

According to Politico, propagandists were posting this argument on Xitter, with Elon RTing them to assert his own legitimacy.

On X, Musk reposted accounts arguing Americans voted for Musk to play a major role in the Trump administration.

But there’s a big difference between Draino and Eric Daugherty suggesting that Elon, not Trump, was elected, and Stephen Miller doing so.

Meanwhile, this NYT article suggests that the White House isn’t in control of what Elon is doing.

Senior White House staff members have at times also found themselves in the dark, according to two officials, who spoke on the condition of anonymity to describe sensitive discussions. One Trump official, who was not authorized to speak publicly, said Mr. Musk was widely seen as operating with a level of autonomy that almost no one can control.

[snip]

This time, however, he carries the authority of the president, who has bristled at some of Mr. Musk’s ready-fire-aim impulses but has praised him publicly.

“He’s a big cost-cutter,” Mr. Trump told reporters on Sunday. “Sometimes we won’t agree with it and we’ll not go where he wants to go. But I think he’s doing a great job. He’s a smart guy.”

[snip]

Several former and current senior government officials — even those who like what he is doing — expressed a sense of helplessness about how to handle Mr. Musk’s level of unaccountability. At one point after another, Trump officials have generally relented rather than try to slow him down. Some hoped Congress would choose to reassert itself.

Mr. Trump himself sounded a notably cautionary note on Monday, telling reporters: “Elon can’t do and won’t do anything without our approval. And we’ll give him the approval where appropriate, where not appropriate, we won’t.”

“If there’s a conflict,” he added, “then we won’t let him get near it.”

It depicts a fight that — last week — was pitched as proof that Chief of Staff Susie Wiles had managed to limit Elon’s access to Trump by denying him an office in the West Wing as instead, at least as Elon tells it, a concession about office size.

At one point, Mr. Musk sought to sleep over in the White House residence. He sought and was granted an office in the West Wing but told people that it was too small. Since then, he has told friends he is reveling in the trappings of the opulent Secretary of War Suite in the Eisenhower Executive Office Building, where he has worked some days.

And amid all that, it notes Elon’s ties to Miller, linking a story that focuses on immigration, not destroying government.

He has a close working relationship with Mr. Trump’s top policy adviser, Stephen Miller, who shares Mr. Musk’s contempt for much of the federal work force.

Now, for all its star power, this is not the article you should read to find out what’s going on in the agencies. Wired has, generally, been leading the pack on that front, having IDed the boys Elon has installed, confirmed one of those boys has control over Treasury’s payment systems, recorded the Musk boys’ platitudes about AI, and found that even after PEPFAR was exempted from USAID cuts, it remains unfunded. And if you want to understand where access by these boys to the government’s HR records will lead, read Mike Masnick.

But I want to compare the impotence portrayed by NYT — the refashioning of the office space fight, the anonymous confirmation that few if anyone in the White House know what Elon’s doing, the on the record quotes from a clueless Trump, a lying Karoline Leavitt, and … from Stephen Miller’s spouse, Katie, who has been installed in Elon’s group, that nothing will go wrong here — with the relative success of the two billionaires’ days yesterday.

Trump got his ass handed to him.

After promising big tariffs on our closest trading partners yesterday, he twice announced one month delays on the tariffs, tied to concessions that “Sleepy Joe Biden” actually negotiated, in one case four years ago. Worse still, both Claudia Sheinbaum and Justin Trudeau beat Trump to the microphone, and in Canada’s case, their Ambassador showed up on Fox News to make it clear Canada already agreed to the things Trump was hailing as a big concession, while Biden was still President. Better yet, some journalists have learned the lesson of the Colombia “negotiation,” in which the same thing happened. Leavitt’s lies about concessions may get less and less effective, moving forward, each time she tries to claim that Trump is some great dealmaker.

I suspect that between the time Trump announced tariffs and the time he capitulated, Senators and possibly even Rupert Murdoch told him how insane the tariffs were. I further suspect that these discussions involved a quid pro quo, perhaps tying a Susan Collins vote for Tulsi Gabbard, for example, in exchange for a reversal on tariffs that might affect Maine.

However Trump was talked off that cliff, he got his ass handed to him.

He didn’t even entirely succeed at claiming this was a fight over immigration and fentanyl trafficking, when that excuse was obvious bullshit as it pertains to Canada.

The one bright spot of his day was making a big announcement about a Sovereign Wealth Fund, yet another piece of paper Stephen Miller handed him to sign, probably, but a promise that, like the plan to annex Canada and purchase Greenland, remains unfunded and undiscussed in heated talks in the House and Senate about how to do reconciliation.

As I suggested Friday, so long as Stephen Miller keeps handing Trump papers to sign, he seems content to imagine he’s the President.

Meanwhile, Elon did succeed in getting the Trump-whisperers at NYT to accept that his attack on bureaucracy, which started with an agency with a $40 billion budget, 1% of government expenditures, and has never glanced at the agency with an $800 billion budget that has never passed an audit.

Mr. Musk has told Trump administration officials that to fulfill their mission of radically reducing the size of the federal government, they need to gain access to the computers — the systems that house the data and the details of government personnel, and the pipes that distribute money on behalf of the federal government.

Mr. Musk has been thinking radically about ways to sharply reduce federal spending for the entire presidential transition. After canvassing budget experts, he eventually became fixated on a critical part of the country’s infrastructure: the Treasury Department payment system that disburses trillions of dollars a year on behalf of the federal government.

Mr. Musk has told administration officials that he thinks they could balance the budget if they eliminate the fraudulent payments leaving the system, according to an official who discussed the matter with him. It is unclear what he is basing that statement on. The federal deficit for 2024 was $1.8 trillion. The Government Accountability Office estimated in a report that the government made $236 billion in improper payments — three-quarters of which were overpayments — across 71 federal programs during the 2023 fiscal year.

[snip]

In private conversations, Mr. Musk has told friends that he considers the ultimate metric for his success to be the number of dollars saved per day, and he is sorting ideas based on that ranking.

“The more I have gotten to know President Trump, the more I like him. Frankly, I love the guy,” Mr. Musk said in a live audio conversation on X early Monday morning. “This is our shot. This is the best hand of cards we’re ever going to have.”

This is ridiculous garbage, as are Elon’s daily claims of money he has saved (which NYT accedes elsewhere). You’re not going to eliminate the deficit by shutting down USAID. You will, however, cut off a lot of funding to Ukraine, with Russia laughing gleefully as it watches. As Elon moves onto reviewing individual employees, you’ll cut off employees who’ll have to be replaced by more expensive contractors.

You won’t cut spending appreciably.

Nothing Elon is doing will balance the budget. Nothing Elon is doing will make government more efficient. Hell, his AI boys can’t even tell the difference between a condom and a hospital, and as a direct result, Trump keeps making transparently bogus claims about Gaza funding.

But as we try to get a sense of where the attacks on democracy are coming from, it’s worth noting that the first thing that happened — before the Senate installed one after another of Trumps’ wildly unqualified nominees, and before Congressional Republicans have decided how to defund government themselves — Elon has gone in and started changing code at government agencies, and done so with feeble claims of approval from the White House.

Meanwhile, people who seem to answer to Miller — people like Acting DC US Attorney Ed Martin, one of three January 6 insurrectionists salted through government so far — appear to be working for Elon, not Trump.

Update, February 5: Both NBC and Atlantic are reporting that Susie Wiles claims to be in charge of what Elon is doing.

“Tariffs will put your jobs at risk:” The Make-Believe Justification for Trump’s Trade War

Tomorrow, tariffs will either go into place targeting Canada, Mexico, and China — creating a recession for at least our closest trading partners, devastating the auto industry, and likely leading to a stock sell-off — or Trump will back down.

This may or may not be the most destructive thing Trump did in the last week, but because it’ll elicit quicker pushback from businesses and Republican members of Congress, it may create an early opportunity to push back on Trump’s unconstitutional power grabs.

And that’s why it matters that a number of media outlets are both burying the stated excuse for the tariffs and debunking that stated excuse as a lie. As described in the Fact Sheet announcing the sanctions, Trump is purportedly invoking a national emergency under IEEPA to impose the sanctions.

ADDRESSING AN EMERGENCY SITUATION: The extraordinary threat posed by illegal aliens and drugs, including deadly fentanyl, constitutes a national emergency under the International Emergency Economic Powers Act (IEEPA).

  • Until the crisis is alleviated, President Donald J. Trump is implementing a 25% additional tariff on imports from Canada and Mexico and a 10% additional tariff on imports from China. Energy resources from Canada will have a lower 10% tariff.
  • President Trump is taking bold action to hold Mexico, Canada, and China accountable to their promises of halting illegal immigration and stopping poisonous fentanyl and other drugs from flowing into our country.

Yet Trump’s claims about the scope of the problem are false. As NPR notes, both Trump and Karoline Leavitt have lied about the scope of the fentanyl deaths.

On Inauguration Day, Trump said foreign drug cartels are “killing 250,000 [or] 300,000 American people per year.” On Friday, White House spokesperson Karoline Leavitt said tariffs are warranted because fentanyl has “killed tens of millions of Americans.”

These claims are false.

Nevertheless, outlets are barely contesting the claims. WaPo included these observations in ¶¶5 and 16 of an article on the tariffs.

Trump has framed the levies as a response to an “invasion” of migrants and fentanyl across the nation’s northern and southern borders.

[snip]

But Trump administration officials doubled down Sunday, citing migrants and drugs to justify the new tariffs.

“Canada has some work to do as far as helping us secure our northern border,” Kristi L. Noem, the secretary of homeland security, told NBC’s “Meet the Press.” “Canada can help us, or they can get in the way, and they will face the consequences of it. … If prices go up, it’s because of other people’s reactions to America’s laws.”

And NYT put this paragraph in ¶10 of a story on the tariffs.

Mr. Trump has said that the tariffs are intended to reduce the flow of the deadly opioid fentanyl over the border, as well as of migrants. (The traffic of both people and illegal drugs from Canada is, however, very small.)

CNN more specifically notes that only 43 of the 21,000 pounds of fentanyl seized last year came through Canada (effectively, Trump’s Fact Sheet blames Canada for drugs that transited Mexico).

According to US Customs and Border Protection statistics, only 43 pounds of fentanyl were seized at the northern border last year, compared with more than 21,000 pounds captured at the southwest border. And Canada has already pledged to spend $1 billion on an enhanced border patrol operation.

Which is what Justin Trudeau said in a celebrated speech responding to the tariffs: less than 1% of the fentanyl and 1% of the illegal crossing into the US come from Canada (which NPR included in its article debunking the claim).

CNN does not, however, correct a claim offered by supporters (and the Fact Sheet announcing the tariffs): That Colombia caved after refusing a military transport with deportees.

His supporters insist it works — citing Colombia’s retreat last week, in a showdown over migrant deportations, under the threat of economy-destroying US tariffs.

It didn’t work. At least thus far, deportations have been done via Colombian military planes, not US military transports. And Colombia has loudly announced that none of those being deported were criminals.

Two Colombian air force planes landed Tuesday in Bogota with more than 200 of the migrants, many of them women and children. Petro welcomed them with a post on X, saying they are now “free” and “in a country that loves them.”

Colombian Foreign Minister Luis Gilberto Murillo said none of the 200 Colombians who were returned on Tuesday had criminal records in the U.S. or Colombia.

“Migrants are not criminals,” Petro wrote. “They are human beings who want to work and get ahead in life.”

One of the migrants, José Montaña of Medellín, said they were put in chains on the earlier U.S. flights. “We were shackled from our feet, our ankles to our hips, like criminals,” Montaña said. “There were women whose kids had to see their moms shackled like they were drug traffickers.”

And of course, this entire fiasco is built off a bigger lie: Trump’s claims to be reversing Joe Biden’s policies, and not his own. A mere seven years ago, Trump declared that the revision to NAFTA he negotiated was the best trade deal ever.

That is, Trump is violating his own deal, something else Trudeau emphasized in his comments.

They will violate the free trade agreement that the president and I, along with our Mexican partner, negotiated and signed a few years ago.

And fundamentally, there’s no reason to believe Trump wants to address drug trafficking. One of the first things he did, after all, was to grant a full pardon to Ross Ulbricht. At sentencing, the government tied his trafficking to at least six deaths, including several heroin deaths (and of course he was accused, though never prosecuted, for arranging hit men).

The vast majority of items for sale on Silk Road were illegal drugs, which were openly advertised as such on the site. As of Sept. 23, 2013, the Silk Road home page displayed nearly 13,000 listings for controlled substances, listed under such categories as “Cannabis,” “Dissociatives,” “Ecstasy,” “Intoxicants,” “Opioids,” “Precursors,” “Prescription,” “Psychedelics,” and “Stimulants.” From November 2011 to September 2013, law enforcement agents made more than 60 individual undercover purchases of controlled substances from Silk Road vendors. These purchases included heroin, cocaine, ecstasy, and LSD, among other illegal drugs, and were filled by vendors believed to be located in more than ten different countries, including the United States, Germany, the Netherlands, Canada, the United Kingdom, Spain, Ireland, Italy, Austria, and France.

The narcotics distributed on Silk Road have been linked to at least six overdose deaths across the world. These overdose deaths include: Jordan M., a 27-year-old Microsoft employee who was found unresponsive in front of his computer, which was logged onto Silk Road at the time, and died as a result of heroin and other prescription drugs that he had ordered from Silk Road; and Preston B., from Perth, Australia, and Alejandro N., from Camino, California, both 16-years-old, died as a result of taking 25i-NBOMe, a powerful synthetic drug designed to mimic LSD (commonly referred to as “N-Bomb”), which was purchased from Silk Road. Additional victims include: Bryan B., a 25-year-old from Boston, Massachusetts and Scott W., a 36-year-old from Australia, who both died as a result of heroin purchased from Silk Road; and Jacob B., a 22-year-old from Australia, who died from health complications that were aggravated by the use of drugs purchased from Silk Road.

Trump is declaring an emergency, including against Canada, solely in an attempt to make an illegal power grab, to defy his own law.

And yet few are pointing to the fact that his emergency is based on inflated claims about fentanyl deaths and wildly false claims about Canada’s involvement in all of that.

Update: Claudia Sheinbaum has already gotten Trump to back down, pausing tariffs for a month. She’ll deploy troops to the border (as Sam Stein noted on Xitter, they have done this repeatedly in the past without tariff threats). Trump will claim to crack down on weapons being trafficked from the US to Mexico. And they’ll continue discussions about security and trade.

Some of the Ways Trump’s Immigrant Invader Damaged America in Just Two Weeks

I think one effect of Trump’s attempt to wow journalists with the appearance of action is to hide how many major fuck-ups and failed promises Trump has had in his first two weeks (like the serial confession that Trump and Stephen Miller lied to voters about how many criminal aliens there are and Trump’s equivocations about multiple of the tariffs he will set).

But one locus of many of the worst failures comes from this unelected immigrant.

Among the things that African immigrant Elon Musk has done in the last few weeks was:

Forced FAA’s head, Michael Whitaker, out days before a fatal crash. As the Verge explained, Elon took Whitaker out because he deigned to regulate Musk’s companies.

But Musk’s efforts to get Whitaker were well known even before Trump’s victory in November. He has complained many times about the FAA, lashing out in September after the agency levied a $633,000 fine for launching missions with unapproved changes. (Musk is worth over $400 billion, making him the richest man in the world.)

The FAA has also fined Starlink, after the SpaceX subsidiary failed to submit safety data before launching satellites in 2022. In a House hearing, Whitaker explained that the FAA’s civil penalties were “the only tool we have to get compliance on safety matters.”

On X, Musk complained that the FAA was “harassing SpaceX about nonsense that doesn’t affect safety while giving a free pass to Boeing even after NASA concluded that their spacecraft was not safe enough to bring back the astronauts.” He also claimed that humans would never land on Mars without “radical reform at the FAA.” In September, he wrote “he needs to resign” about Whitaker.

Elon also pushed out the guy who manages America’s checkbook, David Lebryk, in whom a lot of the confidence of investors and businessmen is invested.

The highest-ranking career official at the Treasury Department is departing after a clash with allies of billionaire Elon Musk over access to sensitive payment systems, according to three people with knowledge of the matter, who spoke on the condition of anonymity to describe private talks.

David A. Lebryk, who served in nonpolitical roles at Treasury for several decades, announced his retirement Friday in an email to colleagues obtained by The Washington Post. President Donald Trump named Lebryk as acting secretary upon taking office last week. Lebryk had a dispute with Musk’s surrogates over access to the payment system the U.S. government uses to disburse trillions of dollars every year, the people said. The exact nature of the disagreement was not immediately clear, they said.

Officials affiliated with Musk’s “Department of Government Efficiency” have been asking since after the election for access to the system, the people said — requests that were reiterated more recently, including after Trump’s inauguration.

[snip]

Typically only a small number of career officials control Treasury’s payment systems. Run by the Bureau of the Fiscal Service, the sensitive systems control the flow of more than $6 trillion annually to households, businesses and more nationwide. Tens, if not hundreds, of millions of people across the country rely on the systems, which are responsible for distributing Social Security and Medicare benefits, salaries for federal personnel, payments to government contractors and grant recipients and tax refunds, among tens of thousands of other functions.

Musk’s flunkies, including one 18-year old with only a high school diploma, have also been installed in the Office of Personnel Management [corrected] — the government’s HR department.

Sources within the federal government tell WIRED that the highest ranks of the Office of Personnel Management (OPM)—essentially the human resources function for the entire federal government—are now controlled by people with connections to Musk and to the tech industry. Among them is a person who, according to an online résumé, was set to start college last fall.

Scott Kupor, a managing partner at the powerful investment firm Andreessen Horowitz, stands as Trump’s nominee to run the OPM. But already in place, according to sources, are a variety of people who seem ready to carry out Musk’s mission of cutting staff and disrupting the government.

Amanda Scales is, as has been reported, the new chief of staff at the OPM. She formerly worked in talent for xAI, Musk’s artificial intelligence company, according to her LinkedIn. Before that, she was part of the talent and operations team at Human Capital, a venture firm with investments in the defense tech startup Anduril and the political betting platform Kalshi; before that, she worked for years at Uber. Her placement in this key role, experts believe, seems part of a broader pattern of the traditionally apolitical OPM being converted to use as a political tool.

Sources say that Riccardo Biasini, formerly an engineer at Tesla and most recently director of operations for the Las Vegas Loop at the Boring Company, Musk’s tunnel-building operation, is also at the OPM as a senior adviser to the director. (Steve Davis, the CEO of the Boring Company, is rumored to be advising Musk on cuts to be made via DOGE and was integral in Musk’s gutting of Twitter, now X, after his takeover of the company in 2022.)

According to the same sources, other people at the top of the new OPM food chain include two people with apparent software engineering backgrounds, whom WIRED is not naming because of their ages.

One thing they’ve done is set up a government-wide email function.

Last week, many federal workers received test emails from the email address [email protected]. In a lawsuit filed last night, plaintiffs allege that a new email list started by the Trump administration may be compromising the data of federal employees.

In their attempts to set up agency- and government-wide emails, Elon’s unelected bureaucrats seem to have taken security filters off at least NOAA’s email system, resulting in noxious spam being sent.

After setting up the government-wide email, someone sent out an email similar to the one Elon sent out when he gutted Xitter, attempting to fool government workers into accepting something misleadingly labeled a buy-out, one not authorized by statute or appropriation.

In a separate email sent on Tuesday entitled “Fork in the Road,” most federal workers were effectively offered an eight-month severance package to leave their jobs, simply by sending [email protected] a message with the word “Resign” in the subject line between now and February 6. Military personnel, postal workers, and national-security and immigration officials are not eligible.

The executive branch has no authority from Congress to offer a mass buyout to federal workers. In fact, the OPM website clearly states that the limit for incentive packages for voluntary resignations is $25,000, far less than eight months’ pay for the average federal worker. Some employees can’t even be offered that.

The way OPM purports to get around this is by defining this as “deferred resignation.” The resignation of the federal worker would be set at September 30, and they will retain full pay and benefits until then and be exempt from return-to-office requirements that are part of one of the Trump executive orders. (This is also a way to not unlawfully reduce salary outlays in federal appropriations for the current fiscal year.) “I understand my employing agency will likely make adjustments in response to my resignation including moving, eliminating, consolidating, reassigning my position and tasks, reducing my official duties, and/or placing me on paid administrative leave until my resignation date,” reads the sample resignation letter. In this sense it is just a future setting of an end date of employment, though the strong implication is that those employees will have nothing to do for the next eight months.

[snip]

This was an Elon Musk operation, through and through. In fact, the “Fork in the Road” email had the same title as one that Elon Musk sent to Twitter when he took over there, informing workers to be “extremely hardcore” or take the resignation offer. The Twitter emails even included the same ask of workers to reply with their decision.

All this access — and almost certainly, some shitty AI — is where the big lie Karoline Leavitt told in her first presser came from.

MS. LEAVITT: There was notice. It was the executive order that the president signed.

There’s also a freeze on hiring, as you know; a regulatory freeze; and there’s also a freeze on foreign aid. And this is a — again, incredibly important to ensure that this administration is taking into consideration how hard the American people are working. And their tax dollars actually matter to this administration.

You know, just during this pause, DOGE and OMB have actually found that there was $37 million that was about to go out the door to the World Health Organization, which is an organization, as you all know, that President Trump, with the swipe of his pen in that executive order, is — no longer wants the United States to be a part of. So, that wouldn’t be in line with the president’s agenda.

DOGE and OMB also found that there was about to be 50 million taxpayer dollars that went out the door to fund condoms in Gaza. That is a preposterous waste of taxpayer money.

Jesse Watters picked up Leavitt’s lie, which in turn led Trump to parrott Watters’ expanded version of it.

It’s possible flunkies installed by African immigrant Elon Musk mistook Africa for the Middle East (of which only Jordan gets contraceptives), because Africa receives condoms from the US (as part of the important PEPFAR anti-AIDS program that even Republican Senators were demanding be resumed when it got shut down).

And this is just what we already know! While it hasn’t been confirmed, I’d bet a good deal of money that Elon’s flunkies were behind shutting down the Medicaid portals early in the week, something that affected health care for people throughout the country.

It has been spectacular failure after failure.

And many of them were directly caused by the immigrant demanding that we get rid of unelected bureaucrats taking democracy away.

How Senate Judiciary Committee Dems Fucked Up the Kash Patel Nomination Hearing

I have always said I think it likely Kash Patel will be confirmed. But that shouldn’t have made yesterday’s confirmation hearing pointless. Democrats did that on their own, though a combination of inadequate preparation and absence of leadership.

Dems tried to demonstrate Kash’s manifest lack of fitness for the job in three ways:

  • Pointing to all the attacks on law enforcement he made on random podcasts
  • Probing his role in disseminating the January 6 choir
  • Dancing around his invocation of the Fifth in the Jack Smith investigation

Pointing to all the attacks on law enforcement he made on random podcasts

Kash dealt with the first line of attack — his incendiary comments on social media — by claiming that his comments were taken out of context.

The only time such claims made any sense, when he tried to spin his complaints about the January 6 response, should have led to detailed follow-up of all the ways his testimony conflicts with every other witness on January 6. Kash even, yesterday, doubled the number of National Guard he claims Trump authorized, a claim that is debunked by the testimony of multiple pro-Trump witnesses. And even if his claims were true (he blames and blamed Ryan McCarthy for the delay in Guard response on January 6) means that his own leadership was faulty. At the very least, committee Democrats should have asked whether he was implicated in Barry Loudermilk’s insinuation that the failure to deploy the Guard was contemptuous.

Similarly, when Kash disclaimed remembering far right podcast host Stew Peters and Dick Durbin noted that Kash had appeared on the show eight times, Durbin should have followed up and asked what kind of compromise such promiscuity could cause an FBI Director.

Probing his role in disseminating the January 6 choir

There were many questions about Kash’s role in promoting the January 6 choir — but in spite of a conflict with Adam Schiff over the meaning of “we,” no one ever got Kash explain who did do the rest (though Adam Schiff did state that Kash had done no due diligence before pushing the video).

This matters, because some of Kash’s buddies (including conspiracy theorist Julie Kelly) routinely make false claims about rioters, and finding the source of Kash’s false claims is important to his warped reality going forward.

But the entire thrust of these questions was hampered by the point I made here and here: they relied on a superficial understanding, based off press releases rather than court dockets, of who these people were.

Schiff asked Kash if he promoted a video showing assailants attacking FBI agents, would it make him unfit to be Director. Why not, then, focus directly on the gun that Barton Shively grabbed when probation officers showed up, precisely the kind of thing that has gotten FBI agents killed in recent years.

And if you want to persuade — or at least, embarrass — your Republican colleagues, why not make it clear that the violent rioters under discussion didn’t just attack cops, but they threatened to drag people like Chuck Grassley and Lindsey Graham through the streets? Kash didn’t just promote people who attacked cops, he promoted people who wanted to attack members of the Committee.

Dancing around his invocation of the Fifth in the Jack Smith investigation

It’s on Kash’s invocation of the Fifth that I’m most upset, because Democrats may have forfeited the opportunity to make this a scandal going forward.

It started strongly enough. Cory Booker first raised it, and got Kash to claim he wanted his grand jury testimony released, after which Booker tried — but failed — to get Kash to elaborate on his testimony. Later, Schiff returned to the question and asked whether he supported getting both his grand jury transcripts and any mention of him in Volume Two, which led to what were probably Kash’s angriest looks of the hearing.

But after that, in the second round, a number of senators returned to the issue, mangling the grand jury standard by falsely saying that if Kash consents to the release of the transcript it can be released, and focusing primarily on the transcript and not the report (the latter of which made his eyes bug out when Schiff raised it).

This is the kind of thing you need to coordinate! This is the kind of thing where the actual grand jury rules matter! This is the kind of thing where the McGann precedent matters! 

And this is the kind of thing that demanded a coordinated set of yes or no questions about Kash’s testimony, because yesterday’s hearing was the one opportunity Dems will ever have to force him to answer question about what he told the grand jury.

All the more so because, it appears, Dems haven’t done what they should have to make an issue of the report (I first described the import of it to this confirmation on January 13).

On Wednesday — literally the day before the hearing — Dems wrote a letter to Acting Attorney General James McHenry asking for the report. While the letter referenced Dick Durbin asking Pam Bondi about it buried on page 41 of her Questions for the Record, that question did not tie the request to the need to advise and consent on confirmations. Tuesday’s letter nevertheless pointed to that question to claim that Aileen Cannon should have known about it.

On January 23, 2025, the Committee issued a “Notice of Committee Nomination Hearing” for Mr. Patel, which is now scheduled for January 30, 2025. The Ranking Member of the Committee submitted on January 16, 2025, Questions for the Record (QFR) to Attorney General nominee Pamela Jo Bondi following her confirmation hearing, requesting that she commit to making Volume Two of the Special Counsel’s report available immediately for review to the Senate Judiciary Committee Chair, Ranking Member, or their designees.2

This formal request preceded an order issued several days later by a judge in the United States District Court for the Southern District of Florida that enjoined the Department from releasing or otherwise making available a redacted version of Volume Two of the Special Counsel’s report to the House and Senate Judiciary Committees. In the order, the judge erroneously stated that “[t]here is no record of an official request by members of Congress for in camera review of Volume II as proposed by the Department in this case,” despite the prior request which her order omits. The judge also concludes wrongly that the Department “identified no pending legislation on the subject or any legislative activity that could be aided, even indirectly, by dissemination of Volume II to the four specified members whom the Department believes should review Volume II now,” notwithstanding the Committee’s ongoing consideration of Mr. Patel and others’ nominations.3

2 Senate Judiciary Committee, Questions for the Record the Honorable Pamela Jo Bondi Nominee to be Attorney General of the United States, (Jan. 16, 2025), https://www.judiciary.senate.gov/imo/media/doc/2025-01-15_- _qfr_responses_-_bondi.pdf

3 United States v. Trump, No. 9:23-cr-80101, (S.D. Fla. Jan. 21, 2025) ECF No. 714 at 7; In addition, on January 13, 2025, Senator Dick Durbin, Ranking Member of the Senate Judiciary Committee and the other Democratic members of the Committee submitted a letter to then-Attorney General Merrick Garland “recogniz[ing[ the current injunction against the release of Special Counsel Smith’s report and related materials and reserv[ing] its right to request production of the report and relevant records at an appropriate future date.” Senate Judiciary Committee Letter Requesting Preservation of DOJ documents (Jan. 13, 2025), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20DOJ%20on%20Records%20Preservation.pdf

This falls short of informing Cannon, however, and submitting an urgent request for the report in conjunction with this confirmation the day before the hearing is rather late, particularly since Grassley might try to push through the confirmation before the stated due date for the report, February 10 (which is still before Cannon’s injunction runs out).

Given Kash’s glare, I’m pretty confident that the report will suggest Kash prevaricated before the grand jury. I even suspect we’ll eventually get some semblance of the report (I also think DOJ’s efforts to fire everyone who might have a copy, on Friday, before they moved to dismiss the case against Walt Nauta and Carlos De Oliveira, on Monday, while a transparent attempt to prevent its release, may be inadequate to that effort).

I think that if the report comes out, it will become clear that the delay in releasing it served primarily to preserve Kash’s nomination chances. I think that it’s likely not to happen before he is confirmed, but I think if that happens after Kash’s confirmation, it can be made a key demonstration of the corruption inherent to Trump’s DOJ.

But Democrats have not done the things they needed to do to to make that a scandal.

Trump’s DOJ is involved in a cover-up as we speak, a cover-up designed to hide how the aspiring FBI Director was complicit in Trump’s efforts to retain classified documents in his insecure basement. But Democrats have not done what they need to do to impose a cost for that cover-up.

Kash disclaims the purge in process

Cory Booker was perhaps the bright spot of the day. In addition to first raising Kash’s role in the documents investigation, he got Kash to disclaim knowledge of a purge in process, in which at least six senior FBI agents were pushed out, during the hearing.

This is another thing that may be turned into a scandal going forward.

Compile this video

As this post makes clear, most of these Senators are quite proud of their testy confrontations with Kash. They’ve sent them out individually.

It’s not too late to make use of them. Democrats can and should put together three videos focused on each of these topics. Intersperse Kash’s claim to stand by cops with video of those he celebrated attacking them. Intersperse Kash’s disavowal of the Neo-Nazis he has been sidling up to with what he said on their shows. And make a video of all the times Kash claimed to want to release his testimony with a focus on the effort to cover it up.

Kash Patel is almost certainly going to be confirmed. And he will almost certainly be a catastrophic appointee. So Dems need to do far more than they did yesterday to impose a cost going forward on his pick — one that, especially, will make it easier to demonstrate the corruption of his installation.

Judge AliKhan Didn’t Halt Trump’s Funding Freeze Alone, Democracy Forward Did Too

Update: As Marisa Kabas and others have reported, OMB has rescinded the memo. Those involved here won this round.

Yesterday, just minutes after Trump’s freeze on a great deal of federal funding was about to go into effect, Judge Loren AliKhan ordered a temporary stay of Trump’s order — through Monday at 5PM — to consider a request for an emergency Temporary Restraining Order submitted in a challenge to the order. Here’s Judge AliKhan’s order halting Trump’s effort to steal money Congress ordered him to spend.

The Court orders an administrative stay through 5PM on February 3rd to maintain the status quo and allow for full consideration of Plaintiffs’ request for a temporary restraining order.

Here’s the CourtListener docket.

Because there’s a great deal of doomerism, because a lot of people spent yesterday wailing, “Why doesn’t anyone do anything,” I think it crucially important to lay out who did what, so people can understand the agency involved.

The plaintiffs in the lawsuit are, as described in the complaint, are:

National Council of Nonprofits (“NCN”) is the largest network of nonprofit organizations in North America, with more than 30,000 organizational members. National Council of Nonprofits (“NCN”) supports nonprofits in advancing their missions by identifying emerging trends, sharing proven practices, and promoting solutions that benefit charitable nonprofits and the communities they serve. (Here’s a flyer they did Monday on the impact of Trump’s Executive Orders and here is their core values page.) To the extent that journalists are giving credit (they’re not, except to Judge AliKhan), NCN will be the named plaintiff.

American Public Health Association (“APHA”) is a nonpartisan, non-profit organization that champions the health of all people and all communities; strengthens the profession of public health; shares the latest research and information; promotes best practices; and advocates for public health issues and policies grounded in scientific research. APHA represents more than 23,000 individual members, who reside in all 50 states, the District of Columbia, and Puerto Rico, and also has 52 state and regional affiliates. APHA is the only organization that combines a 150-year perspective, a broad-based member community, and the ability to influence federal policy to improve the public’s health. (Here’s their about page.)

Main Street Alliance (“MSA”) is a national network of small businesses, which represents approximately 30,000 small businesses across the United States. MSA helps small business owners realize their full potential as leaders for a just future that prioritizes good jobs, equity, and community through organizing, research, and policy advocacy on behalf of small businesses. MSA also seeks to amplify the voices of its small business membership by sharing their experiences with the aim of creating an economy where all small business owners have an equal opportunity to succeed. MSA’s small business members compete for and receive various forms of what is broadly defined as “federal financial assistance,” including funding in the form of grants, loans, and loan guarantees. Members also benefit directly from other recipients of federal financial assistance being able to purchase goods and services from them as a result of federal programs. (Here’s their about page.)

SAGE is a New York nonprofit corporation. SAGE is dedicated to improving the lives of lesbian, gay, bisexual, and transgender adults.

Note, I’ve lifted this language directly from the complaint, which emphasizes that this battle pits an organization that tries to help non-profits work effectively and another that supports public health professionals, along with a number of small businesses. There’s an LGBTQ group in there, which (along with some services provided by the APHA) supports a First Amendment challenge to the way the OMB member specifically targeted “transgenderism.”

The Memo purports to pause all disbursements through federal financial assistance programs pending a “review” to determine whether they are “consistent with the President’s policies” as expressed in several executive orders, such as one announcing that “[f]ederal funds shall not be used to promote gender ideology.” The Memo further indicates that the review should identify recipients of federal funding that “advance Marxist equity, transgenderism, and green new deal social engineering policies.”

But even the lawsuit also focuses main street stuff, like keeping small businesses afloat. This group of plaintiffs were presumably chosen to represent both interests that matter to right wingers, but also interests that have a specific complaint based on the way OMB wrote its memo (particularly its focus on Trans people).

Importantly, these groups have legal standing (because they get federal grants); members of Congress do not, which is one of several reasons why civil society is leading this fight. Here’s how the complaint describes NCN’s injuries arising from the halt in funding.

Many of NCN’s members rely on federal grants and financial assistance to serve their missions, from supporting research and services to those with cancer and other serious diseases, to assisting people in escaping domestic violence, to providing mental health care and suicide hotlines. Federal grants and financial assistance are the lifeblood of operations and programs for many of these nonprofits, and even a short pause in funding—which, for many NCN members, is already in the pipeline—could deprive people and communities of their life-saving services. Nonprofits often make budget decisions two to five years in advance, and they make business decisions based on expected cash inflow just as any for-profit enterprise would: making staffing decisions, setting organizational priorities, providing essential services and programs, and identifying and working towards fundraising goals. They rely on federal funds to fund entire programs, including salaries. Halting this funding would lead to pauses of important community programs, food and safety assistance, and lifesaving research, among other things: even a short pause could be devastating, decimating organizations, costing lives, and leaving neighbors without the services they need.

Finally, the real agency here: The suit was filed by Democracy Forward, which is in the business of litigating on issues like this. Here’s their client list. In other words, this is a lawsuit brought by a legal organization that found plaintiffs who’ll well represent the harm that cutting of federal funding will do to America, and do so in ways that personify what this attack is about.

Democracy Forward is part of a group, Democracy 2025, formed last year to challenge Trump’s assault on democracy.

So the plaintiffs are here because they have standing and because they’ll be able to tell compelling stories about the injury they’ve suffered. Democracy Forward will be doing the heavy lifting of fighting this legally.

One reason I’m making this point is to emphasize the import of civil society, including groups that have been preparing for these legal challenges for months. As I and others have pointed out, the battle over fascism often centers on the battle over pre-existing networks of civil society, networks that often are not themselves political.

And sustain or build your networks. Not just your political networks, the folks with whom you’ve worked to try to elect Kamala Harris or restore reproductive rights. But your other networks, too. Sometimes, after fascists break political networks, it’s the choirs or the knitting clubs where civic discourse can regrow.

The very first thing authoritarians try to break are the networks of civil society, because isolated people are easier to terrify. So make sure yours are as strong as they can be before the wrecking crew comes.

Here, civil society stood up, asserted its membership in a society linking small businesses in rural communities to aging LGBTQ people, and succeeded, for now, in pausing Trump’s attack on parts of civil society that Russ Vought and Acting OMB Director Matthew Vaeth are attacking.

In those moments you’re feeling particularly helpless, you might focus your energy on shoring up the strength of civil society within your own local community, even if it’s no more than the knitting club.

It is likely auspicious that Judge AliKhan — a recent Biden appointee who worked for years as an Attorney for District of Columbia — was randomly assigned to the case. But all she has done, so far, is preserve the status quo. The NGOs, from the service providers to the lawyers, are the people who scrambled to prevent the implementation of the order last night at 5PM.

One more point about agency. The lawsuit cites to the copy of the memo published by WaPo in its story on the halt. But as WaPo credited, it was not the first to report on the memo; independent journalist Marisa Kabas first posted it on Bluesky.

Things are definitely dire. But there are people — from journalists to NGOs to lawyers — who are doing their jobs to push back against Trump’s authoritarian attack. And it’s important to see that NGO networks are one of the most important bulwarks against such authoritarian attacks.