Dem Lawfare Fallback Faltering

The Left’s fallback tactic, trotted out when they lose elections, has always been lawfare. Trump faced that down for four years and now the Dems are trying to deploy lawfare against Trump 2.0. But this time around the new administration foresaw this and was well prepared.

First, a legal theory overview to re-emphasize what we wrote (or quoted) yesterday.

‘Outside The Power Of A Federal Judge’: Courts Test Boundaries As Trump Admin Sparks Showdown Over Executive Authority

I’ll quote only enough to reinforce the theoretical overview:

Court orders restricting Elon Musk’s Department of Government Efficiency (DOGE) and other Trump administration actions are sparking a public showdown on a key constitutional question: what are the legitimate powers of the executive branch?

As DOGE plows ahead cutting wasteful programs and axing entire agencies, judges are slowing progress by issuing temporary restraining orders in response to lawsuits from Democrat-aligned groups and state attorneys general — leading some constitutional scholars to suggest, as Vice President JD Vance did on Sunday, that the courts may be overstepping their role.

“If a judge tried to tell a general how to conduct a military operation, that would be illegal,” Vance wrote on X. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.”

“Judges aren’t allowed to control the executive’s legitimate power,” he continued.

Judge Paul Engelmayer temporarily blocked political appointees, including Elon Musk and his Department of Government Efficiency (DOGE), on Saturday from accessing Treasury Department records, permitting only “civil servants” to use the information.

Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation there is “no such distinction” between political appointees and civil servants in federal law.

“The executive branch is run by the president and his appointees and no judge has the power to abrogate his constitutional authority over the executive branch,” he said. “Moreover, to prevent the president and his appointees from gathering information on how a department is being run is also far outside the power of a federal judge and fundamentally unconstitutional.”

If a judge tried to tell a general how to conduct a military operation, that would be illegal.

If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.

Judges aren’t allowed to control the executive’s legitimate power.

— JD Vance (@JDVance) February 9, 2025

…

“This is a remarkable intrusion on the Executive Branch that is in direct conflict with Article II of the Constitution, and the unitary structure it provides,” they [the Trump administration] continued.

…

There is literally no part of this that amounts to a constitutional crisis

Not even close

The fact that you guys keep calling it that makes me wonder what country’s constitution you’re reading, thinking that it’s ours https://t.co/Qn4KoPKSJa

— Mike Lee (@BasedMikeLee) February 9, 2025

There was a development already today in that case. First, it’s important to understand that Engelmayer is not the judge to whom the case was assigned—he was simply on duty and the Dems ran to him, knowing his ideological predilections, and he issued a TRO (temporary restraining order) ex parte—without giving the administration an opportunity to respond. Engelmayer also attempted to push the hearing on the TRO out as far as he could into the future. The administration was too prepared for that and had an emergency hearing today on a motion to dissolve the TRO which was heard by the judge to whom the case was assigned (Jeanette Vargas). The result was a defeat for the Dems.

Shipwreckedcrew’s X account has been a good location to keep up with developments, as other legal types are also weighing in there. First SWC seconds von Spakovsky on the matter of “political” v. “civil service” employees of the government. There is no such distinction when it comes to performing their duties—they’re all simply government employees:

What DOJ has done is to show that the States have led the Court [Engelmayer] into violating Separation of Powers by a judicial order that Exec. Departments can only be run by "civil servants" -- a phrase the order doesn't define.

In a separate tweet SWC summarizes what happened today. In essence, while leaving the TRO in place, Vargas nevertheless modified it and, in so doing, pretty much gutted it:

Shipwreckedcrew @shipwreckedcrew

So we now have a modification of the ex parte TRO entered at 1:00 am by Judge Englemayer.

Judge Vargas narrows the TRO so as to not include the Sec. of Treasury or other subcabinet DOT officials who are presidential appointees.

That means that Vargas recognizes that, within the Treasury, there can be no distinction between political and civil service employees when it comes to doing their jobs.

She leaves the balance of the TRO in place as it relates to people from other Govt agencies and "Special Govt Employees" such as the DOGE boys -- but only until Friday.

In this next part, SWC is essentially saying that Vargas—aware of the false political/civil service distinction—took pains to avoid agreeing with Engelmayer. That should be a tip of her hand. Further, while a TRO requires a showing of “irreperable harm”, Vargas avoids that term. Instead, she referred to “risk” or “heightened risk” which is not the standard that is required to get a TRO:

Interestingly, she used language that seemed to avoid agreeing with or endorsing Judge Englemayer's conclusions in is ex parte TRO.

She described his findings of irreparable harm as being that there was "risk" and a "heightened risk" of something bad happening if DOGE got access.

Prediction -- "risk" is conjectural and not "irreparable harm" as defined by law re preliminary injunctions. That's why [Engelmayer] granted it ex parte without the Govt being heard from.

Because the government would have objected strenuously at the deliberate error by Engelmayer.

This is a significant loss by the State AGs -- they argued that even political appointees like the Sec. of Treas. didn't need access to the BFS payment system -- they could still be briefed on important matters without having access themselves. They pointed to an OpEd on Sunday from five former Treasury Secretaries saying they never needed access to BFS -- briefings were sufficient.

Judge Vargas disagreed and granted access to the Sec. of Treasury and subcabinet Treasury Officials appointed by POTUS.

Judge Vargas noted that "maintaining the status quo" which is what Judge Englemayer said was the purpose of the TRO, wasn't consistent with excluding all political appointees from having access to BFS -- they always have access, so excluding them was changing the status quo.

…

So, she's keeping DOGE out but not because she thinks Englemayer was correct -- only because that is the record before her now.

The Govt will be heard from next.

12:58 PM · Feb 11, 2025

The key here is that the administration lawyers are totally prepared for this type of lawfare.

I want to link to an important article by Mark Glennon at Wirepoints:

Under-Reported Trump Order Has Sweeping Implications For DEI At Universities

Briefly, this EO provides for this:

In other words, if you want federal money, you will have to “certify” that you do not “operate any programs promoting” DEI (diversity, equity and inclusion) “that violate any applicable Federal anti-discrimination laws.” And the order eases the way for enforcement through whistleblower claims.

You can count the universities that don’t take federal money on one hand.

That spells big trouble unless they end or curtail DEI programs, and fast. They will either be disqualified from new federal grants or face severe consequences for signing a false certification.

But what if the universities try to employ some sort of sleight of hand? That’s where the EO really bites, because it provides an incentive for whistleblowers to, well, blow the whistle on the shenanigans—allowing the whistleblowers to share in the penalties levied agains universities that violate the EO:

It gets worse for the woke.

Trump’s new order includes this:

A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code.

Want to guess what that referenced Code section is?

It’s the False Claims Act – the whistleblower law that allows private citizens to file what are called qui tam actions. That provision in Trump’s new order is specifically intended to make it easier to win whistleblower actions under the False Claims Act. In other words, if a university or other party falsely signs the certification that they have no DEI policies, private parties like their employees can blow the whistle, perhaps getting a cash award. Treble damages are among the possible consequences for False Claims Act violations.

Many major law firms have posted warnings for their clients about the new Trump order and the potential for whistleblower complaints, such as here.

While not all is clear, the easiest course for at risk institutions is the path of least resistance: compliance with the letter and spirit of the EO.

This one is interesting, too:

Chilling info on Jamie Raskin’s wife might explain why he’s fighting DOGE…