MAGA: Legal Stupid → Criminal Cutthroat
First a Farce, then a Coup
Right now, you and I and every American are living through an event more important than September 11th or January 6th. This is the first and only coup that has ever happened in the United States. Portions of the government have been physically occupied by an unelected private individual and his private mob. It’s no different than a bunch of Russians taking over the main computer in the Treasury Department, the one that sends out a billion checks every year to pay Social Security and tax refunds.
This coup is much cleverer than the January 6 attempt, but it will not endure.
On January 6, as I watched Trump’s mob push its way up the Capitol steps, my deep familiarity with military history told me that the mob would not succeed in taking over the capital or if it succeeded momentarily, it could not hold it. Similarly, my deep familiarity with history tells me that Musk’s coup will fail too. I’ll tell you why toward the end of this post. Not everything that looks like a big success at first endures. The Japanese sunk a lot of vessels at Pearl Harbor, but they ended up starving and bombed less than four years later.
Since Trump perjured himself on January 20 taking an oath to defend the Constitution, we saw Trump’s attempt to impound funds under a cover of pseudo-legality stopped in its tracks. Then we saw a transition to cutthroat criminality. I will cover both moves.
Legal Stupid MAGA
On January 27, the office of Management and budget (OMB) released a memo saying that all federal grants and loans would be paused so that hundreds of programs could be evaluated for conformity to Trump’s ban on DEI, the Green New Deal, and Wokeness. Within 24 hours, Federal websites that dispersed funds to hundreds of programs such as Meals on Wheels and health clinics were shut down.
Swift Reaction: Republican members of Congress were flooded with calls by Republican constituents expressing dismay over the pausing of programs that directly affected their own lives. In turn, Republican legislators began calling the White House expressing their alarm. The Trump Administration quickly rescinded the memo, but the terms of the rescission were not completely clear.
Moral: Don’t be so stupid as to screw your own voters.
Second reaction: The very next day, a pro bono legal firm, Democracy Forward, filed a suit on behalf of two major nonprofit umbrella organizations. On January 28, 2025, Judge Loren AliKhan (appointed by Joe Biden) issued a brief administrative stay against the OMB until February 3. At that hearing, Judge AliKhan ruled that the nonprofits would suffer irreparable harm if their funds were cut off, and she put a permanent stay on the funding pause. She stated that OMB “attempted to wrest the power of the purse away from the only branch of government entitled to wield it.” In other words, only Congress has the power to decide how money should be spent. OMB was also faulted for not conforming to the Administrative Procedures Act (APA), which governs how federal agencies propose and establish regulations. BTW, Trump 1.0 never got the hang of the APA throughout Trump’s first four years in office. The APA is a lovely piece of legislation that allows any violation to be taken immediately to federal court and not have it hung up in an administrative court for possibly months.
Moral: if you’re going to do people irreparable harm and they have a way to sue you, don’t.
If you want to read a truly beautiful decision, I suggest Judge AliKhan’s decision. Hint: I always let my computer read PDF files to me.
Appeal: The Trump Administration has not yet appealed the decision, but Judge AliKhan’s decision looks like it can withstand an appeal. Since the Trump administration has already rescinded the policy, an appeal wouldn’t make much sense.
Criminal Cutthroat MAGA
In previous posts I predicted that the effectiveness of Trump 2.0 will be greatly diminished because Trump’s minions are too dumb to learn how to control the government through legal means. Congress has laid down complicated procedures for making changes to policies and procedures (APA). The first Trump administration was tripped up several times because it simply didn’t follow the protocol for taking action. There is no indication that Trump 2.0 is any better at it.
However, in an unanticipated development, Trump 2.0 has said “screw legality.” If you can’t figure out how to change the bureaucracy by legal means, simply seize critical government computers. After all, if Elon Musk is now telling the computers what to do, that makes him the executive branch.
Word is that Elon Musk was wandering around Mar-a-Lago during the transition period talking about seizing government computers. And after 10 days’ pause, that's just what he started doing. Elon has shown up with a bunch of extremely young engineers from his companies, many between 19 and 24 years of age. They wear a uniform of tee shirts and blazers. They do not wear government employee IDs, because they are not government employees. They refuse to reveal their names. When they interview government employees, they decline to answer any questions, saying: “This is a one-way interview.”
More information about these Muskovites is found in a long NYT article— here is a free link.
January 31: Elon Musk's aides seized control of the computer system at the Office of Personnel Management (OPM). The action locked out senior government officials and restricted access to databases containing personal information on millions of federal employees. The suspected reason for the takeover is to gain access to employee assignments and training records past and present. This would help identify federal employees who have been involved with DEI and environmental issues. This could help DOGE target these employees for termination.
The “Weekend” (Feb 1-3): Donald Trump went to Florida to play golf while Elon Musk went wild. Trump’s absence gave him plausible deniability if Elon’s activities ever become politically detrimental. It turns out that not a single Republican representative or senator let out a peep about Musk’s activities. Consequently, Trump gave an endorsement to Musk’s weekend shenanigans upon his return: “Elon can’t do and won’t do anything without our approval.”
Over the weekend, Musk put his agents in the Bureau of the Fiscal Service in the Treasury Department, the government services administration (GSA), USAID, and the Department of Education.
The most consequential of these was the takeover of the Treasury Department’s payment system. This system does almost all disbursements by the federal government—a billion transactions a year, covering income tax refunds, Social Security checks, and Medicare disbursements to hospitals and doctors.
The problem is the system is old and fragile. It runs on a modified version of COBOL software, which hasn’t been state of the art since the 1960s. Although steps have been taken toward updating the system, it remains a patchwork of old hardware and software. Shockingly, the person on the planet who knows most about the system, David Lebryk, a 30-year veteran of the Treasury Department, was sent home when he opposed giving Musk access to the system. Computer experts fear Musk could crash the system if he tries to make modifications to it. Depending on the size of the crash, this could bring the US government to a screeching halt. However, if only a small portion of the system goes down, say tax refunds or Social Security checks, that might rouse real public opposition to DOGE’s lawless actions. I can hear Trump passing the blame now: “The shocking vulnerability of this system is the result of years of neglect by Biden and Obama. If they hadn’t wasted so much money on DEI, this system would have been fixed!”
Pushback: Two suits have been filed against Musk’s seizure of the Treasury computer. The first is based on privacy rights. The Treasury Department is required by law to safeguard the privacy of every American citizen who Interacts with the federal government. Musk and his minions now have access to the Social Security numbers and banking information of hundreds of millions of Americans. The lead defendant in the suit is Treasury Secretary Scott Bessent because he has primary responsibility for maintaining legality in the operations of the Treasury Department.
The suit asks the federal court to:
Declare that Defendants’ decision to implement a system by which Elon Musk or other DOGE-affiliated individuals may access the Bureau’s records and obtain personal information about individuals and taxpayers contained there is unlawful.
Enjoin Defendants from continuing to permit such access or obtain such personal information.
Enjoin Defendants to ensure that future disclosure of individual records will occur only in accordance with the Privacy Act, the Internal Revenue Code, and the SORNs applicable to the system of records at issue.
Will TEAM US Stop DOGE?
It is truly difficult to plumb the mind of Elon Musk. First of all, he is a man who is supremely used to getting his way. He thinks that the government of the United States can be given the bum’s rush and knocked flat on its back, never to rise again. On his plan to demolish the deep state, Musk said:
“If it’s not possible now, it will never be possible. This is our shot. This is the best hand of cards we’re ever going to have. If we don’t take advantage of this best hand of cards, it’s never going to happen.”
While this may be Musk’s best shot, I believe his cards are not good enough.
I believe that Elon Musk will be stopped in the courts. Just as Republicans do their judge shopping in Texas, TEAM US has gone judge shopping in Washington, DC. We have already won two court cases against Trump’s pause in the disbursement of grants and loans, decisions will undoubtedly be upheld by the left-leaning DC Court of Appeals.
That brings us to the Supreme Court.
The person whose legal views I most closely share is George Conway. I think he would agree with me that our present Supreme Court has stretched the constitution, but it has not broken it. The court has shown an Inclination to go back to interpreting the law as it was understood in the 19th century. But busting into government offices and taking over government records was not a practice that would have been tolerated in the 19th century. I see a majority of the court for upholding Congress’s power of the purse and its authority to regulate the operation of the executive branch. Indeed, this court has sought to cut back on regulatory discretion and return “major issues” to the control of Congress.
The five I am certain will do right by the constitution are Sotomayor, Kagan, Jackson, Coney Barrett, and Roberts. I think it is highly likely that they will be joined by Kavanaugh and Gorsuch. Of course, Alito and Thomas operate on a planet all their own.
Tom Malinowski agrees: [T]he federal judiciary that laughed Trump’s 2020 election challenges out of court remains in place, only with the addition of 234 judges that President Joe Biden appointed. Clearly unlawful actions will be overturned—not “should be,” but will be—as we’ve already started seeing.”
Remember, the Supreme Court has a Marshal Service, armed men who can go into federal buildings just as easily as Trump and his underaged delinquents. This is not a job that requires tanks.
What if the Supreme Court Fails Us?
Let’s play this one hand at a time. And here is something worthwhile from Tolkien:
'I wish it need not have happened in my time,' said Frodo.
'So do I,' said Gandalf, 'and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us.'
For your amusement, I would like to share with you some wonderful ideas from Norm Ornstein about how Democrats can raise hell in the Senate. In contrast to the courts, I would be surprised to see these ideas in action.
Deny unanimous consent to every action. The Senate operates by unanimous consent, and getting around it is time-consuming and uncomfortable.
Refuse to allow committees to meet when the Senate is doing business on the floor.
This is the relevant portion of Senate Rule 26: A committee may not meet (or continue a meeting in progress) on any day (1) after the Senate has been in session for two hours, or (2) after 2:00 p.m. when the Senate is in session. The Senate routinely waives this rule via unanimous consent. Deny it.
In Rule 14, there is a requirement that every bill is to be read in full three times before passage. That is routinely waived to include only reading a summary. Require the full reading, especially with omnibus bills.
Use the filibuster on every bill and confirmation. Draw a page from the Mitch McConnell playbook; raise the bar to 60 on legislation and use all the delays that can come with filibusters on confirmations. It is a regular misconception that filibusters have been taken away from confirmations. In fact, the cloture barrier has been moved from 60 to a simple majority. But even if these confirmations can pass ultimately, they can be delayed significantly by exploiting the rules.
Use the hold to block many if not most confirmations. A hold is simply a senator indicating he or she will deny unanimous consent to move forward on a confirmation, but it has been respected for many decades as a norm blocking action. Holds are no longer anonymous, but that is not a barrier. This something applied more than once by Senate Republicans during the Biden presidency; it was not just Tommy Tuberville and military promotions. Rand Paul, Tom Cotton, Josh Hawley, among others, used blanket holds to protest Biden policies or just to gum up the works. Kudos to Hawaii’s Brian Schatz for showing how it is done, with today’s blanket hold on State Department nominees over the hostile takeover of USAID. It should be done by others for Treasury, Justice, Defense, Education, and other departments.
Useful, savvy, concise info--- and you got me to laugh--- not easy to do these days. Love your writing!
Enlightening. I'm scared. I'm scared to action.