THE LAWFARE GANG STRIKES AGAIN. Remember New York Attorney General Letitia James? How could you forget? She is the state official who filed the lawsuit against President Donald Trump alleging that he overvalued some of his properties. As the case went to trial, it became clear that James’s accusations had no merit, but she nevertheless convinced a single New York judge, Arthur Engoron, to find Trump guilty and hit him with a $454 million judgment. She structured the lawsuit so that Trump would not have the right to a jury trial.
James’s pursuit of Trump was the fulfillment of an oft-repeated campaign promise to get the former president. This newsletter has published them before, but here are a few excerpts from James’s statements during her 2018 campaign and after.
“This illegitimate president who sits in the White House … he’s not my president, he’s an illegitimate president. His days are numbered. His days are numbered. … We’ve got to be ready to mobilize, and we’ve got to get ready to agitate and irritate until victory is won or, more importantly, until Trump is defeated. … We will all rise up and resist this man … and ultimately we’ll bring him down. … I’m going to give [Trump] the same level of respect that [Trump] gave President Obama, and that is absolutely no respect at all. … Donald Trump has got to go. Hey, hey! Ho, ho! Donald Trump has got to go! … The days of Trump are numbered.”
James rode the anti-Trump train to reelection in 2022. And now, with Trump back in the White House, you will not be surprised to learn that she is again leading the lawfare charge against the president. Although it did not keep Trump out of the White House, James’s lawfare has nonetheless done him plenty of damage — so why not try it again?
Late Friday, James’s office posted a press release headlined, “Attorney General James Leads Multistate Coalition in Suing to Stop Elon Musk and DOGE’s Attacks on Americans.” James said she and the attorneys general of 18 other states, all Democrats, of course, had sued Trump, the Treasury Department, and Treasury Secretary Scott Bessent to “stop the unauthorized disclosure of Americans’ private information and sensitive data.”
Note at the beginning that James & Co. do not know whether there has been any unauthorized disclosure of people’s private information and sensitive data. But they have read some media articles suggesting such disclosure could happen. That was enough for James. Joining the suit are the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, and Wisconsin, for a total, with New York, of 19 states. With a few exceptions, that’s pretty much all the states won by former Vice President Kamala Harris last November now going to war against the winner of the election.
Late Friday night, James & Co. asked a judge in New York, U.S. District Judge Paul Engelmayer, to issue an emergency temporary restraining order to stop Trump-designated special government employee Elon Musk and his Department of Government Efficiency team from looking into the payment practices of the Treasury Department. The DOGE group, in particular, a 25-year-old engineer named Marko Elez, was “granted access” to the super-sensitive Treasury payment system, according to the request. “Notably, Elez spent several days with ‘administrator privilege access’ with the ability to overwrite code,” James and her colleagues said. Such access, they added, endangered the government’s payments to people for “Social Security benefits, veterans benefits, childcare tax credits, federal employee wages, and federal tax refunds.”
The James request listed three sources for the allegation that Elez was given “administrator privilege access,” that is, the power to change code in the Treasury Department system. The first source was a floor speech given by Senate Minority Leader Charles Schumer (D-NY), the second was a post on BlueSky in which Sen. Ron Wyden (D-OR) said “sources” had told him DOGE had full access to the Treasury system, and the third source was an article in Wired magazine.
Of course, top Trump administration officials, including Bessent, denied that that had happened, and they strongly argued that the various payments to people had not only not been interfered with but were not in any danger. The DOGE scare, they said, was a Democratic and media overreaction to a much-needed critical review of federal spending.
James did one more thing. She asked Engelmayer to issue the restraining order without even hearing from the administration. She requested the order under Federal Rule of Civil Procedure 65(B). According to that rule, a court “may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” The rule also required James to certify that she made at least some sort of effort to tell the other side about her action.
Engelmayer apparently found all this — Schumer’s speech, Wyden’s post, the Wired article — extremely persuasive. In the space of a few short hours, he decided that the Trump administration must immediately be stopped. James & Co. filed the request with Engelmayer about 9:30 p.m. Friday. Engelmayer issued the restraining order around 1 a.m. Saturday. It was all very, very urgent.
Engelmayer’s decision raised questions — and eyebrows. He ruled that Trump, the Treasury Department, and Bessent were “restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department … other than to civil servants with a need for access to perform their job duties.” He then forbade Trump, the Treasury Department, and Bessent from granting access to records to “all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department.”
Why did Engelmayer decree that some “civil servants” be given access to Treasury’s systems but not “political appointees”? On its face, that would apply to Bessent and his top deputies, all appointed by Trump — in other words, all the people now running the Treasury Department. Depending on how you count political appointees, Engelmayer’s ban applies to at least the top 35 people in the Treasury Department, and possibly more.
The Trump side finally got to respond on Sunday night. “There is not and cannot be a basis for distinguishing between ‘civil servants’ and ‘political appointees,'” administration lawyers wrote. “Basic democratic accountability requires that every executive agency’s work be supervised by politically accountable leadership, who ultimately answer to the president. A federal court, consistent with the separation of powers, cannot insulate any portion of that work from the specter of political accountability. No court can issue an injunction that directly severs the clear line of supervision Article II requires. Because the order on its face draws an impermissible and anti-constitutional distinction, it should be dissolved immediately.”
It’s not that complicated. Authority in the executive branch ultimately has to derive from an election. The executive branch is the only branch of government headed by a single person, the president. The president is elected and then appoints people to run the executive branch. If there are “civil servants” who have authority denied to the president’s representatives, then who is in charge of the executive branch? One might ask that question of Engelmayer, who appears to think some functions of the executive branch are so sensitive they can only be performed by “civil servants” and not by political appointees, including the treasury secretary and his deputies.
Whatever the weaknesses in Engelmayer’s thinking, the administration made clear in its response that it was obeying the judge’s order. “To be clear, notwithstanding the order’s defects, defendants are in compliance with it,” the lawyers wrote. “Defendants have taken what they believe to be all necessary steps to comply with the court’s order.”
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Of course, this is not the only lawfare being conducted against the Trump administration. By the New York Times’s count, more than 40 lawsuits have been filed against the administration in its first three weeks in office. It appears that Democrats, who vainly placed their faith in lawfare to keep Trump out of the White House, are now again placing their faith in lawfare to constrain him in the presidency. Maybe it will work. Maybe it won’t.
Engelmayer scheduled a hearing on the Treasury matter for Friday. Until then, the representatives of political control of the executive branch will be locked out of the payment system at the Treasury Department — the work of a single member of the judicial branch who has decided the president should not have the authority to run one of the most important departments of the U.S. government.