Thread by @RenzTom

LAWYER’S PERSPECTIVE on the court issuing a TRO blocking Trump’s DOGE employees access to Treasury Data

@realDonaldTrump brought @elonmusk in under the reorganized USDS - now the US DOGE Service. As I chronicled elsewhere this was quite clearly legal and that action has not been challenged. What is being challenged is DOGE employees having access to Treasury Department Data Systems.

Yesterday, a comprehensive complaint was filed before an Obama appointed judge in NY. The 60 page - fairly complex - complaint and request for TRO was filed yesterday and somehow U.S. District Judge Paul Engelmayer was able to fully vet this complaint and grant the TRO the same night. While granting a same day TRO does happen, it is quite impressive that he was able to research and rule on such a complex complaint in such a short period of time.

Let’s talk about that TRO. @RealAlexJones @VigilantFox

When a complaint is filed in a court the complaint makes certain allegations, alleges facts to support those allegations, and then requests relief. In the case of this complaint the request for relief included a request for a TRO (Temporary Restraining Order) against the subject of the complaint. In other words they asked that Trump and DOGE be blocked from auditing treasury department data.

The complaint can be found at: ag.ny.gov/sites/default/…

The TRO order can be found at: storage.courtlistener.com/recap/gov.usco…

Let’s talk about the TRO. In this instance it appears that the judge issued a ruling without an opportunity for the Defendants to respond. This can happen with a TRO but is a bit unusual for a TRO on an issue like this. If there is a life/safety issue (and abused woman or child) TROs are frequently issues without an opportunity to respond but the allegations in this complaint do not demonstrate that sort of dangerous or inevitable harm so one would think that a judge would give the President an opportunity to respond.

Also interesting is that there is a 4 page grant of the TRO on such a complicated complaint. There is literally no analysis and the judge simply adopted all of the Plaintiffs findings and analysis. In light of the fact that this case was so complex, the respect the judiciary owes all co-equal branches of government (including the Executive Branch), the lack of demonstrated harm (only unsupported allegations of potential harm), and the political appearance of this case, one would expect at least some indication that the judge did more research than simply reading and adopting the plaintiff’s position (I’m not saying that’s all he did and he may have had experience/expertise in this but still… this was a pretty fast ruling on a big case).

It is also worth noting that nothing in this case alleged that giving Trump time to respond was “likely” to result in “irreparable harm.” That is the standard established by the SCOTUS in Winter v. Natural Resources Defense Council - the only case cited in this entire order. I’d argue that this TRO was improperly granted - this sort of preliminary injunction requires a high standard and there is no analysis supporting the grant. Frankly this seems a bit political.

The SCOTUS is clear in Winter when they state: “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam).” The Court did not even attempt to analyze this in the ruling despite no concrete allegations of harm.

This leads to a question of standing. Numerous cases have been thrown out over the years based on standing. Here the states allege all sorts of possible injuries but have not alleged and actual injuries. The courts demand injuries be concrete and particularized. For example in TransUnion LLC v. Ramirez, 594 U.S. 413, the Court reiterated that only plaintiffs who have been concretely harmed by a defendant's statutory violation may sue in federal court. There are allegations of harm that may occur here but nothing that is demonstrable - in my opinion - at this point.

There is a TON to a standing analysis but I would consider bringing it up at this point as part of a response.

Next we have the counts themselves. They are:

1. Violation of APA 706(2) - Exceeding Statutory Authority
2. Violation of APA 706(2)(A) - Contrary to Law
3. Violation of APA 706(2)(A) - Arbitrary and Capricious
4. Ultra Vires (this means an action was done without legal authority)
5. Violation of the Separation of Powers - Usurping Legislative Authority
6. Violation of the Take Care Clause

Going through the specifics of each of these is beyond this thread but I will say that most of this is garbage. Count 1, for example, notes that Defendants have to stick within the realms of their statutory authority. The USDS was created by Obama based on authority from numerous statutes. Its purpose under the law was essentially to provide software support and development for the government. No one had an issue with this agency under Obama but now that it is interrupting the deep state there are issues. Ultimately, this department’s authority to work on software necessitates it having access to the software it is working on. The idea that a department that was initially created to work on info that could include private info (Healthcare . Gov was all about our health and payments) would now somehow not have authority to look at software because they might see private info is patently absurd. @elonmusk @RealAlexJones

Count 2 is the most credible count and would take too long to respond to here so I’m not going to.

Count 3 is debatable. This will come down to what explanation was offered and whether it was “reasoned” (which is required under Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, FCC v. Fox TV Stations, Inc., 556 U.S. 502). I certainly do not believe that there is enough here to warrant a TRO on this and am not positive whether it would be enough to win at all without fact finding.

Count 4 is conclusory garbage. Here the Plaintiffs assign motive and all sorts of other things without anything other than tweets for supporting evidence. There are no claims of any payments being illegally blocked at this point and I’d argue that if the only payments that get blocked in the future are illegal or fraudulent then this is absolutely within the authority granted. Of course the Plaintiffs here seem to have a problem with blocking illegal payments.

Count 5 is also based on numerous factual errors and conclusory assumptions. The purpose of the actions being taken are to reduce fraud and increase efficiency. The below statement is (I believe) a misrepresentation of the facts and might be sanctionable. That aside, Congress did not authorize fraud and waste and THAT is what is being searched for. Why wasn’t anyone worried about separation of powers under Biden when he was misspending money from FEMA to resettle illegals rather than helping people in NC with hurricane relief?

Count 6 is honestly hard to even interpret. This looks like an add-on count to try and justify impeachment later. It doesn’t even make sense if they are just trying to fix the issue they are talking about because it is dependent on findings related to the other counts. This count seems straight up political to me.

Ultimately this case is political. The best argument they have is count 2 but I think that one is debatable as well. The fact that a court issued a TRO without an opportunity to respond on this seems extremely political. Further, I’d love to know how this Judge would justify this if he actually had to write an analysis on his ruling… of course no one wants to talk about holding judges accountable no regardless of whether their rulings wreak of political activism.

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Almost forgot this gem… according to this order the President and the Secretary of Treasury are “restrained from granting access to…” Treasury Department systems or records on a massive scale. Talk about a separation of powers issue.

FYI:

https://twitter.com/RenzTom/status/1888522348988444984