Anti-Anti-Nazi Barbarian Hordes are Knocking Down the Gates

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JAMES COMER, KENTUCKY
CHAIRMAN

GERALD E. CONNOLLY, VIRGINIA
RANKING MINORITY MEMBER

ONE HUNDRED NINETEENTH CONGRESS
Congress of the United States
House of Representatives
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
2157 RAYBURN HOUSE OFFICE BUILDING
WASHINGTON, DC 20515-6143

February 25, 2025  
Mr. Edward R. Martin Jr.
Interim United States Attorney for the District of Columbia
601 D Street NW
Washington, DC 20004

Dear Mr. Martin:

I write concerning several recent public communications you have made in your official capacity asserting that certain critics of the Trump Administration or policies that it favors—including two Democratic Members of Congress—have violated the law and/or are subject to “inquiry” or other investigative activity by your office.1 These include your shocking post on X yesterday stating that “[a]s President Trumps’ [sic] lawyers, we are proud to fight to protect his leadership as our President and we are vigilant in standing against entities like the AP that refuse to put America first.”2 As you have announced, these communications are connected to your office’s recently-launched “Operation Whirlwind,” which you have reportedly described as intended to “hold accountable those who threaten [federal] workers.”3

The safety of federal employees and officials is self-evidently paramount and emphatically must remain an ironclad priority for the Department of Justice. Your recent public statements, however—which are directed exclusively at opponents of and express support for the Trump Administration, explicitly criticize the Biden Administration, publicize pending investigative activity by your office, and make assertions of fact for which there exists no evidence—raise serious concerns that your new initiative is a pretext for misusing your office for political ends, threatening and intimidating critics of the Administration, and chilling constitutionally protected speech. Your post on X yesterday appears to confirm that these are in fact your aims.

Indeed, as the Washington Post reported, legal experts have observed that your communications “would be more credible but for [your] own actions in the three weeks since taking office and [President] Trump’s long pattern of sowing falsehood-laden attacks and encouraging violence against political critics.”4 The latter include more than 100 threats by Donald Trump to prosecute or punish perceived enemies, including against former President Biden, legislators, judges, and members of the Biden family—precisely none of which are mentioned in your communications.5 While professing concern for the safety of all federal workers and officials, you have personally moved to dismiss criminal cases in which rioters at the U.S. Capitol on January 6, 2021, were convicted of or pled guilty to attacking Capitol Police Officers and presided over the firing of the career prosecutors who pursued those cases.6 And notably, your communications make no mention of the continuing threat to Capitol Police Officers and other federal workers by the January 6 rioters whom Donald Trump pardoned, exemplified last week by the arrest of former Proud Boys leader Enrique Tarrio outside the Capitol on a charge of assaulting a female protester.7

Your communications are also conspicuously silent on Elon Musk’s pattern of targeting career federal civil servants by name on X and reportedly “sparking his online army of followers to launch blistering critiques of ordinary federal employees,” and his now deleted post stating that “no one is even trying to assassinate” former President Biden or former Vice President Harris.8 Nor do your statements reflect any concern whatsoever about the publication of the names of 10 employees at the Department of Homeland Security by a Heritage Foundation-funded group, which called them “America’s most subversive immigration bureaucrats,” or that group’s publication earlier this month of the names of more than 50 other federal employees on what it labelled a “DEI Watchlist.”9

It thus appears that your stated commitment to protect federal employees and officials extends only to President Trump and his allies. As discussed below, your politically selective approach to law enforcement violates DOJ policies, breaches your ethical obligations, and constitutes a misuse of your office—and most alarmingly, as a leading expert on legal ethics has observed, is “undermining the prosecutorial independence of the Justice Department.” 10 Your post on X yesterday, moreover, appears to reflect your deeply disturbing and grossly erroneous view that the office of United States Attorney exists to further the personal interests of Donald Trump, rather than those of the American people, and may be used to target elements of the media that scrutinize or are critical of his Administration—a view that is fundamentally antithetical to, and represents a direct threat to, the rule of law in this country.

February 3, 2025, Letter to Elon Musk

On February 3, 2025, you posted on your X account a letter, also dated February 3, on your office’s letterhead to Elon Musk, with the salutation “Dear Elon,” and stating: “It was good to work with the DOGE team this weekend. … At this time, I ask that you utilize me and my staff to assist in protecting the DOGE work and the DOGE workers. … Let me assure you of this: we will pursue any and all legal action against anyone who impedes your work or threatens your people. We will not act like the previous administration who looked the other way as the Antifa and BLM rioters as well as thugs with guns trashed our capital [sic] city.”11

As the New York Times noted, your letter to Mr. Musk “was unusual, not least because criminal investigations are generally not announced in a public forum, let alone before any facts or evidence have been collected.”12 It thus appears to have violated DOJ’s own policies, which provide unambiguously that “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”13

Moreover, a leading criminal justice scholar and former U.S. Attorney commented that your communications suggest that you are “all-in in President Trump’s camp” and are “going to exercise [your] power in a way that is favorable politically[.]”14 Such overt political favoritism by a senior law enforcement official is blatantly improper on several grounds. It is flatly inconsistent with DOJ’s Principles of Federal Prosecution, which are premised on “the fair, evenhanded administration of the federal criminal laws.”15 It also violates the Standards of Ethical Conduct for Employees of the Executive Branch, which require all employees to “act impartially and not give preferential treatment to any private organization or individual” and to “endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards.”16 And your explicit support for DOGE’s mission likewise runs afoul of the American Bar Association’s Criminal Justice Standards for the Prosecution Function, which provide that a prosecutor “should not use … improper considerations, such as partisan or political or personal considerations, in exercising prosecutorial discretion” and that it is improper for a prosecutor to make “public statement[s] that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused.”17

February 3, 2025, Post on X

Also on February 3, 2025, you posted a statement on X asserting that your office’s “initial review of the evidence presented to us indicates that certain individuals and/or groups have committed acts that appear to violate the law in targeting DOGE employees.”18 You further stated: “We are in contact with the FBI and other law-enforcement partners to proceed rapidly. We also have our prosecutors preparing.”19 As the Washington Post observed, your statement was “atypical in alleging violations of law before any charges were filed.”20 Furthermore, by publicly announcing the existence of, and commenting upon, your investigation on social media, your statement, yet again, appears to have violated DOJ’s express policy prohibiting such communications.

Letters to Members of Congress

You also sent letters dated January 21, 2025, February 6, 2025, and February 11, 2025, to the current U.S. Senate Minority Leader concerning statements he reportedly made at a rally in opposition to the U.S. Supreme Court’s reproductive rights case law.21 In the first of those letters, you requested “clarification” concerning those comments, which you asserted were made “clearly and in a way that many found threatening.”22 In your February 3 letter, you asserted that the Minority Leader’s comments “were not just strong language born of a Brooklyn upbringing” and that “any reasonable person would hear your words as threatening.”23 And even after the Minority Leader’s staff confirmed in a written response to you that the Senator’s words were neither intended as nor constituted a physical threat to any person, you sent a further letter to him in which you wrote: “Your cooperation is more important than ever to complete this inquiry before any action is taken. I remind you: no one is above the law.”24

Even setting aside your superfluous and unprofessional ad hominem commentary on the Minority Leader’s personal background, these letters were extraordinary, in that, as one legal expert noted, “[p]rosecutors typically leave it to agents to investigate cases so they do not themselves become witnesses.”25 The highly unusual nature of these communications led the same expert to conclude that they “are designed more to chill free speech than to seek clarification, as they purport to do,” while another noted that their “ingratiating and self-promotional tone makes [them] read more like a job application than the customary way that nonpolitical federal prosecutors speak.”26

February 19, 2025, Office-Wide Email

On February 19, 2025, you reportedly issued an office-wide email announcing an investigation into what you described as a potential attack on Secretary of Defense Pete Hegseth and the formation of “Operation Whirlwind.”27 That email, which was subsequently posted on social media, further stated: “Our office has been flooded with threats against those who helped free the January 6th prisoners . . . . We must protect our cops, our prosecutors, our DOGE workers, the President, and all other government employees from threats against our nation.”28 You also cited the Senate Minority Leader’s words, which you described as “threats” and noted: “It is particularly disturbing that other politicians have followed his words with threats of their own.”29 Once again, by focusing solely on potential threats against members and supporters of the Trump Administration and expressing solidarity with the criminal defendants convicted for their roles in the January 6, 2021, attack on the United States Capitol, your email violated both DOJ policy and your ethical obligations as a prosecutor.

Your statements also highlight your blatant conflict of interest as Interim U.S. Attorney. You moved to dismiss your office’s prosecution of one of the January 6 defendants convicted of assaulting police with a dangerous weapon and obstructing Congress, despite having represented that same individual at trial while you were still in private practice—and, astonishingly, while you were simultaneously listed as counsel of record for both that individual and DOJ.30 Exacerbating this conflict, at the time you moved to dismiss those charges, you had also been an organizer, participant, and witness to the “Stop the Steal” rally on January 6 and made posts on X confirming your attendance at that rally-turned-insurrection and expressing support for the Oath Keepers.31 Moreover, prior to holding your current office, you hosted a podcast promoting the use of DOJ to exact “retribution” against Donald Trump’s political enemies through law enforcement.32 Notably, you are currently facing a complaint before the District of Columbia Bar based upon this conflict, which appears to violate both federal ethics rules and the state Rules of Professional Conduct applicable to you.33

Mischaracterization of Protected Political Speech as Criminal Activity

Underlying each of your communications discussed above is the false assumption that mere opposition to, or criticism of, the Trump Administration and policies that it supports may constitute a federal crime. That suggestion is baseless and contrary to the law. While genuine “threats” are not protected speech under the First Amendment, words and actions opposing or criticizing DOGE or other administration actions—such as “imped[ing]” DOGE’s work and “confrontations, or other actions in any way that impact [DOGE employees’ work]”—are entirely lawful and qualify as speech protected by the First Amendment to the U.S. Constitution. The U.S. Supreme Court has repeatedly affirmed the fundamental principle that, while the government can prosecute unlawful threats, “[w]hat [it] cannot do … is use the power of the State to punish or suppress disfavored expression.”34

[quote]The Court has likewise recognized that even indirect threats by government officials—such as the type of “thinly veiled threats to institute criminal proceedings” contained in your communications—may also chill protected speech and violate the First Amendment.35 Moreover, your singling out of speakers with specific viewpoints, raise the threat of unconstitutional viewpoint discrimination.36 Because your communications are aimed solely at speakers opposed to DOGE or other Trump Administration policies and appear to target unquestionably protected speech, I am deeply concerned that your “Operation Whirlwind” and associated activities that you are undertaking may violate the First Amendment and chill legitimate political expression. They also raise the concern that you are using your office to carry out Elon Musk’s evident goal to silence media and other commentators who criticize him or DOGE.37

Requests for Information

In order to investigate whether your office is effectively and evenhandedly protecting federal employees and officials and complies with the U.S. Constitution, DOJ policies, and other applicable laws, regulations, and rules, we request that you provide written responses to the following no later than March 11, 2025:

1. Please identify, respectively, the number of initial leads, preliminary inquiries, and full investigations that your office has undertaken concerning violence or threats of violence against: (a) current or former Democratic officials; (b) individuals known to your office as opponents of DOGE or other Trump Administration policies; (c) current or former attorneys and other staff in your office who were involved in the prosecution of defendants charged with criminal offenses in connection with the events at the U.S. Capitol on January 6, 2021; and (d) current or former U.S. Capitol Police officers and other personnel who were involved in the events at the U.S. Capitol on January 6, 2021.

2. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect the safety of current or former attorneys and other staff in your office who were involved in the prosecution of defendants charged with crimes in connection with the events at the U.S. Capitol on January 6, 2021.

3. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect the safety of current or former U.S. Capitol Police officers and other U.S. Capitol Police personnel who were involved in the events at the U.S. Capitol on January 6, 2021.

4. Please identify the steps you have taken or intend to take as Interim U.S. Attorney, or if confirmed by the Senate, as U.S. Attorney, to protect current or former federal employees targeted individually by social media posts or other media by Elon Musk or any other individuals or groups.

5. Please confirm your belief that the Department of Justice represents the United States of America and its citizens, and not the personal and individual political or business interests of the President.

6. Please confirm your belief that the Department of Justice may not, consistent with the law and Constitution of the United States, take investigative, enforcement, or other action against any individual or entity based upon that individual’s or entity’s criticism of, dissent from, or other non-violent opposition to, the policies or members of a given presidential administration.

7. Please state whether you believe criticism of, or opposition to, DOGE, Elon Musk, or any other policy or action of, or individual associated with, the Trump Administration, constitutes protected speech under the First Amendment of the U.S. Constitution, as defined by the U.S. Supreme Court.

8. Please confirm that your office does not intend to investigate or prosecute any individual or entity based upon criticism of, or opposition to, DOGE, Elon Musk, or any other policy or action of, or individual associated with, the Trump Administration, for making protected speech under the First Amendment of the U.S. Constitution, as defined by the U.S. Supreme Court.

The Committee on Oversight and Government Reform is the principal oversight committee of the House of Representatives and has broad authority to investigate “any matter” at “any time” under House Rule X.

If you have any questions regarding this request, please contact Democratic Committee staff at (202) 225-5051.

Sincerely,

_________________________
Gerald E. Connolly
Ranking Member

Cc: The Honorable James Comer, Chairman
_______________

Notes:

1 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n)); Read Interim U.S. Attorney Ed Martin’s Letters to Democratic Lawmakers, Washington Post (Feb. 19, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... er-garcia/).

2 U.S. Attorney Ed Martin (@USAEdMartin), X (Feb. 24, 2025) (online at https://x.com/USAEdMartin/status/1894117113834488072).

3 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n).

4 D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, Washington Post (Feb. 20, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... democrats/).

5 Trump Makes More Than 100 Threats to Prosecute or Punish Perceived Enemies, NPR (Oct. 22, 2024) (online at www.npr.org/2024/10/22/nx-s1-5155032/tr ... ed-enemies).

6 What to Know about Ed Martin, the Right-Wing Activist Trump Tapped to be DC’s Top Prosecutor, CNN (Feb. 19, 2025) (online at www.cnn.com/2025/02/19/politics/ed-mart ... index.html).

7 Ex-Proud Boys Leader Enrique Tarrio Arrested on Assault Charge Outside U.S. Capitol, NBC News (Feb. 21, 2025) (online at www.nbcnews.com/politics/politics-news/ ... rcna193246).

8 Musk Unleashes Online Army on Federal Workers. “A Tough Way to Find Out She’s Losing Her Job,” Wall Street Journal (Nov. 22, 2024) (online at www.wsj.com/tech/musk-unleashes-online- ... b-f57a2e94); Elon Musk Deletes X Post About ‘No One’ Attempting to Assassinate Biden or Harris, NBC News (Sept. 16, 2024) (online at www.nbcnews.com/tech/elon-musk-deletes- ... rcna171260).

9 How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing,’ New York Times (Feb. 12, 2025) (online at www.nytimes.com/2025/02/12/business/med ... -elez.html).

10 In Podcasts, D.C. U.S. Attorney Discussed Investigating Trump Foes, Washington Post (Feb. 21, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... r-podcast/).

11 Ed Martin (@EagleEdMartin), X (Feb. 3, 2025) (online at https://x.com/EagleEdMartin/status/1886456136032817488).

12 In Fiery Words, the Federal Prosecutor in Washington Promises an Inquiry Into Allegations Raised by Musk, New York Times (Feb. 7, 2025) (online at www.nytimes.com/2025/02/07/us/politics/ ... -musk.html).

13 U.S. Department of Justice, Justice Manual § 1-7.400 (2024) (online at https://www.justice.gov/jm/jm-1-7000-me ... ns#1-7.540).

14 U.S. Attorney Hints at Prosecutions Over ‘Targeting’ of DOGE Employees, Washington Post (Feb. 3, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... musk-doge/).

15 U.S. Department of Justice, Principles of Federal Prosecution § 9-27.001 (online at www.justice.gov/jm/jm-9-27000-principle ... n#9-27.001).


16 5 C.F.R. § 2635.101(b) (online at www.law.cornell.edu/cfr/text/5/2635.101).

17 American Bar Association, Criminal Justice Standards for the Prosecution Function (4th ed.), Standards 3-1.6(a) and 3-1.10(c) (online at www.americanbar.org/groups/criminal_jus ... -function/).

18 Ed Martin (@EagleEdMartin), X (Feb. 3, 2025) (online at https://x.com/EagleEdMartin/status/1886538976145891408).

19 Id.

20 U.S. Attorney Hints at Prosecutions Over ‘Targeting’ of DOGE Employees, Washington Post (Feb. 3, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... musk-doge/).

21 Read Interim U.S. Attorney Ed Martin’s Letters to Democratic Lawmakers, Washington Post (Feb. 19, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... er-garcia/).

22 Id.

23 Id.

24 Id.

25 D.C. U.S. Attorney Probing Democrats Over Alleged Threats, Documents Show, Washington Post (Feb. 20, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... democrats/).

26 Id.

27 Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com), Bluesky (Feb. 19, 2025) (online at https://bsky.app/profile/ryanjreilly.co ... k4sbvu4c2n).

28 Id.

29 Id.


30 See Letter from Reps. Dan Goldman, Hillary Scholten, Stacey Plaskett, Mikie Sherrill, Glenn Ivey, Maggie Goodlander & Shomari Figures to Inspector General Michael Horowitz (Feb. 12, 2025) (online at https://goldman.house.gov/sites/evo-sub ... rowitz.pdf).

31 See id.

32 In Podcasts, D.C. U.S. Attorney Discussed Investigating Trump Foes, Washington Post (Feb. 21, 2025) (online at www.washingtonpost.com/dc-md-va/2025/02 ... r-podcast/).

33 See id.; The 65 Project, Bar Complaint Against Edward Martin (Feb. 6, 2025) (online at https://the65project.com/bar-complaint- ... rd-martin/).

34 See Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024).

35 Id. at 189-90; see also Letter from ACLU of the District of Columbia to Edward R. Martin, Jr. (Feb. 4, 2025) (online at www.acludc.org/sites/default/files/2025 ... rtin65.pdf).

36 See Iancu v. Brunelli, 588 U.S. 388, 393 (2019) (“A core postulate of free speech law” is that “[t]he government may not discriminate against speech based on the ideas or opinions it conveys.”).

37 See How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing,’ New York Times (Feb. 12, 2025) (online at www.nytimes.com/2025/02/12/business/med ... -elez.html).

[admin]

Trump SCREWS OVER 12 Cases AGAINST HIM in 10 SECONDS
by Michael Popok
MeidasTouch
Mar 7, 2025 Legal AF Podcast

Trump just screwed his own DOJ and their legal positions that Musk doesn’t run DOGE and is not responsible for the mass firings of federal workers and turning off the lights of billions in federal funding, as Trump puts a lie to all those positions by declaring in his public speech last night that Musk “runs DOGE.” Michael Popok takes a look at how the lawyers handling 12 different cases against Trump are using this new evidence against his Administration, including a new legal filing minutes before the speech was even over!



Transcript

To further combat inflation, we will not only be reducing the cost of energy, but will be ending the flagrant waste of taxpayer dollars. And to that end, I have created the brand new Department of Government Efficiency, DOGE. Perhaps you’ve heard of it. Perhaps. Which is headed by Elon Musk, who is in the gallery tonight.
[Applause]
[Music]
[Applause]

well Donald Trump just solved a problem
during his speech last night that's been
vexing federal judges and even his own
Department of Justice for quite some
time what is Doge who's in charge of
Doge who's responsible for all the
federal filing firings and all of the
defunding that's going on well Donald
Trump made it a lot easier last night as
he just heard where he did a shout out
to Elon Musk and said he is the quote
unquote head of Doge are you listening
Carolyn levette the press secretary
where she constantly says that she
doesn't know who the head is or it's
this new person from Tennessee or um
Elon Musk is just the special advisor
not according to the president of the
United States he's not and this will now
be new evidence in the courts of law I'm
Michael pook with a smile on my face and
a whistle on my lips here on the midest
touch Network so let's uh let's break it
all down you may recall that Carolyn
levette the world's youngest press
secretary I think that's her title she
got into a whole snit with the Press she
thinks her job as press secretary is not
to do the the work of the American
people but it's the fight with the
hounds of the media because they have
the tarity to ask
questions about about Trump policy and
cases and that annoys her
because she doesn't have the answers to
these things and so when she was asked
about who is the head of Doge because
it's important because federal judges
have said out loud in their recent um
orders that it is so opaque the
structure the relationship between the
office of personal management the uh
Department of government Efficiency
Services or whatever it's called Elon
Musk um and they can't get to the bottom
of it and so they've started to order
sworn statements under oath and
depositions under oath and evidence to
be provided and presented because judges
are getting annoyed and pissed off that
they can't figure out which should be a
simple a simple analysis and so Carolyn
levette was asked who is the head of DOA
why do you keep asking me this let me
show let me run that clip thanks
Caroline I wanted to ask about a federal
judge yesterday was saying that they
didn't know who the Doge administrator
was and was asking the the lawyer for
the administration who it was and the
lawyer responded I don't know the answer
that can you tell us who the
administrator of Doge is again I've been
asked and answered this question Elon
Musk is overseeing Doge there are career
there are no Elon Musk is a special
government employee which I've also been
asked and have answered that question as
well there are career officials at Doge
there are political appointees at Doge
I'm not going to reveal the name of that
individual from this Podium I'm happy to
follow up and provide that to you um but
we've been incredibly transparent about
the way that doge is working John
well if she was sitting in the joint
session yesterday which I assume she was
I mean I doubt she was there for the
whole hour and
40-minute rambling mental collapse of
Donald Trump but if she was there for
any part of it she may have seen the
part where Elon Musk got to jump up and
down again because he was shouted out by
the president as the head of
Doge already there are filings in
federal courts from that speech that's
why I love plaintiff's lawyers and I
love the plaintiff's lawyers are up
against Donald Trump right now because I
never thought I would say this they are
outnumbering and outmatching the
Department of Justice the Department of
Justice used to have unlimited resources
it used to have I used to be very I used
to be very concerned when I had clients
that had cases against the Department of
Justice not that I was going to lose but
I'd be very concerned just about the
asymmetrical resources against me that's
over when you cut your federal Workforce
in half and you hollow out the
Department of Justice and you send away
all the prosecutors and the civil
lawyers not just prosecutors on the
Civil side of the Department of Justice
the Civil Division you know the ones
that are headed by I'm not even sure who
right now maybe Todd blanch not yet
maybe uh Emil B for the moment um all
those lawyers they're all gone too and
funding is gone as well so now you got
now you've got the lawyers of the plaff
side working together you know they're
sort of linked together like Skynet on
Terminator to try to take down this this
this guy named president Trump and so
when they hear as did my ears every time
I hear Donald Trump say a version of I
probably shouldn't say this I'm like oh
fire away fire away o sir uh and that
got turned into evidence that got
submitted. that's the part
that Donald Trump never learned from his
first goar around with the criminal
court system that anything he said and
did in social media in speeches at press
conferences could end up in real time
back in the courtroom he would take a
break during the New York trials whether
it was the uh fraud case civile the
egene Carol Case about sex abuse or the
uh Federal Criminal uh the state
criminal conviction case trial and he
would go out and do these press
conferences at lunchtime pissing off the
court staff because they wanted to get
him back in uh to try the case in front
of the jury or the judge and any of the
statements that he made the BR would all
be listening they'd have whole teams
ready they would like record it print it
out trans get a transcript hand it in
mark it as an exhibit and and that's
what just happened we already have the
filing um which I'm if I if you give me
a minute I'm going to put it up on the
screen um so in I'll tell you one this
one in particular in a we have a notice
of new evidence that it's been filed in
a case and here's what it says in the
federal case it says in in support of
their motion for expedited Discovery um
the National Security councilor submit
new evidence which conclusively
demonstrates that expedited discovery
which means this exploration of facts
through sworn statements under oath and
document exchange that we need in order
to prove matters and to bring up
evidence in cases that it's urgently
needed to ascertain the nature of the
Department of government efficiency and
its relationship to the United States
Doge service of which Amy Gleason is the
acting administrator she's that woman
that used to work in Doge in the digital
service the first time when she did
covid response for Donald Trump and now
works for a Tennessee Healthcare
entrepreneur that's also with Doge with
with with Elon Musk and while she was on
vacation in Mexico they made her the
acting director of Doge so that Carolyn
levette could say it's it's Amy gon you
know that okay so here's what the filing
says at approximately 9 46 p.m.
president Trump stated the following in
his joint address address the Congress
to further combat inflation we will not
only be reducing the cost of energy but
will be the but we will be ending the
flagrant waste of taxpayer dollars and
to they and to that end I have
created the brand new Department of
government efficiency Doge perhaps
you've heard of it perhaps which is
headed by Elon Musk who is in the
gallery tonight and then sites back to
YouTube on that particular Point see
real world consequences for running your
mouth at the um in public Donald Trump
so I think we now know the answer that
we've always suspected let me let me let
me lay this out on a board without you
know red red string it's not that big of
a conspiracy Elon Musk from his perch in
Doge controls the decisionmaking about
what the office of personal management
is going to do what kind of emails they
send out to Federal workers he dictates
which federal workers get fired he has
his people on his team go into Payment
Systems to ensure that payments don't
get made and funding gets cut all
through Elon Musk this person that they
trotted out as the acting director she's
she's a figurehead she's a meat puppet
she does she has no power wait till they
get her under oath about what her powers
are there're zero the only one that has
the superpowers given to him by the
executive branch is Elon Musk and he
just said it out loud
this is going to help and strengthen the
hand in about 12 different cases that
Elon Musk has been sued or Doge has been
sued and or the Administration has been
sued in because of Elon Musk because now
he's answered the question it is Elon
Musk and then with the Constitutional
battle that's going to happen next is
when they triy to get Elon Musk under
oath in a deposition they're going to
argue some sort of executive privilege
he oh he doesn't work in Doge he's he's
an executive officer he's a special
adviser to the president he's a we have
executive privilege you he can't he
can't tell you about anything that he's
doing so there's so in other words
there's no transparency even though
Donald Trump looks the American people
in the eye and says all the things he's
doing to destroy uh Independence and uh
uh independent bipartisan commissions
and take all the different uh agencies
and departments that Congress created as
bipartisan and put them under his greasy
thumb that was for transparency that's a
lie they don't want transparency they
want the opposite of transparency
you know I'm going to do another hot
take soon about them trying to
manipulate and cook the books from the
Commerce Department about the slowing of
the American economy they're just going
to change the numbers I'll do that in
another hot TI I want to F continue to
focus here so um we'll continue to mine
all of the transcript from last night
I'm sure there's other things that that
the lawyers will continue to use against
Donald Trump submit it to judges as
evidence just as we saw in that
particular case um and I'll I'll cover
it all right here on the mest touch
network and on legal AF so till my next
reporting I'm Michael popuk in
collaboration with the mest touch
Network we just launched the legal AF
YouTube channel help us build this
pro-democracy channel where I'll be
curating the top stories the
intersection of Law and politics go to
YouTube now and free subscribe at legal
aftn that's @ legal aftn
[Music]

_________________________

https://www.courtlistener.com/docket/69 ... fficiency/
LENTINI v. DEPARTMENT OF GOVERNMENT EFFICIENCY (1:25-cv-00166)
District Court, District of Columbia

12: Feb 18, 2025. MINUTE ORDER: The parties are hereby notified that, earlier today, this case was consolidated with 25-cv-164 and 25-cv-167. See Feb. 18, 2025 Minute Order, Public Citizen, Inc. v. Trump, No. 25-cv-164. The parties shall make all future filings in the lead case, 25-cv-164, and shall not "spread text." The Court understands that these three cases are not identical, and has accounted for that by allowing each set of Plaintiffs to file its own briefs and pleadings unless the Court orders otherwise. Signed by Judge Jia M. Cobb on February 18, 2025. (lcjmc2)
Order

12: Feb 18, 2025. Order

12: Feb 18, 2025. Cases Consolidated. This case has been consolidated with case 25cv164 pursuant to Order. From this date forward, all pleadings shall be filed ONLY in the lead case, 25cv164. Parties are advised NOT to elect the SPREAD TEXT option when filing in ECF, as this will result in repetitive docketing. (zdp)

12: Feb 19, 2025. Create Case Association

https://www.courtlistener.com/docket/69 ... fficiency/

PUBLIC CITIZEN, INC. v. TRUMP (1:25-cv-00164)
District Court, District of Columbia

25: Feb 18, 2025. MINUTE ORDER: The parties are hereby notified that, earlier today, this case was consolidated with 25-cv-164 and 25-cv-167. See Feb. 18, 2025 Minute Order, Public Citizen, Inc. v. Trump, No. 25-cv-164. The parties shall make all future filings in the lead case, 25-cv-164, and shall not "spread text." The Court understands that these three cases are not identical, and has accounted for that by allowing each set of Plaintiffs to file its own briefs and pleadings unless the Court orders otherwise. Signed by Judge Jia M. Cobb on February 18, 2025. (lcjmc2)

Order

25: Feb 18, 2025. Order

25: Feb 18, 2025. Cases Consolidated. This case has been consolidated with case 25cv164 pursuant to Order,,. From this date forward, all pleadings shall be filed ONLY in the lead case, 25cv164. Parties are advised NOT to elect the SPREAD TEXT option when filing in ECF, as this will result in repetitive docketing. (zdp)

25: Feb 19, 2025

Create Case Association

***************************

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JERALD LENTINI, et al.,

Plaintiffs,

v.

DEPARTMENT OF GOVERNMENT EFFICIENCY, et al.,

Defendants.

*************************************

AMERICAN PUBLIC HEALTH ASSOCIATION, et al.,

Plaintiffs,

v.

OFFICE OF MANAGEMENT AND BUDGET, et al.,

Defendants.

Civil Action No. 1:25-cv-00167 (JMC)

NOTICE OF NEW EVIDENCE

In support of their Motion for Expedited Discovery, Dkt. #20, Plaintiffs Jerald Lentini, Joshua Erlich, and National Security Counselors, Inc. hereby submit new evidence which conclusively demonstrates that expedited discovery is urgently needed to ascertain the nature of the Department of Government Efficiency and its relationship to the United States DOGE Service, of which Amy Gleason is the Acting Administrator. At approximately 9:46 PM, President Trump stated the following in his Joint Address to Congress:

To further combat inflation, we will not only be reducing the cost of energy, but will be ending the flagrant waste of taxpayer dollars. And to that end, I have created the brand new Department of Government Efficiency, DOGE. Perhaps you’ve heard of it. Perhaps. Which is headed by Elon Musk, who is in the gallery tonight.

Live: Donald Trump delivers speech to Congress, Assoc. Press (Mar. 4, 2025), at https://www.youtube.com/watch?v=LEygBVr1neI (last accessed Mar. 4, 2025) (emphasis added).

Date: March 4, 2025

Respectfully submitted,
/s/ Kelly B. McClanahan
Kelly B. McClanahan, Esq.
D.C. Bar #984704
National Security Counselors
1451 Rockville Pike
Suite 250
Rockville, MD 20852
501-301-4672
240-681-2189 fax
[email protected]

Counsel for Plaintiffs Lentini, Erlich, and NSC

[admin]

'An American President Is Not a King': Judge Reinstates Labor Regulator Illegally Fired by Trump: "The president seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme."
by Jessica Corbett
Common Dreams
Mar 06, 2025


A federal judge on Thursday reinstated Gwynne Wilcox, a Democratic member of the National Labor Relations Board, and suggested that U.S. President Donald Trump's attempt to fire her was an example of the Republican testing how much he can exceed his constitutional powers.

Wilcox filed a federal lawsuit in February, after Trump ousted her and NLRB General Counsel Jennifer Abruzzo. On Thursday, U.S. District Judge Beryl Howell—who was appointed by former President Barack Obama to serve in the District of Columbia—declared Wilcox's dismissal "unlawful and void."

"The Constitution and case law are clear in allowing Congress to limit the president's removal power and in allowing the courts to enjoin the executive branch from unlawful action," Howell wrote in a 36-page opinion. She also sounded the alarm about arguments made by lawyers for the defendants, Trump and Marvin Kaplan, chair of the NLRB.

"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution."

12:31 PM · Feb 19, 2025

"Defendants' hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present 'extraordinary intrusion[s] on the executive branch,' ...is both incorrect and troubling," the judge wrote. "Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy."

She stressed that "an American president is not a king—not even an 'elected' one—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here."

"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution," Howell asserted. "In our constitutional order, the president is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the judiciary."

The judge cited a widely criticized February 19 social media post from the White House, which features an image of Trump in a crown, with text that states, "Long live the king."

"The president seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme," Howell warned. "The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law."

The president's attempt to fire Wilcox halted federal labor law enforcement in the United States. AFL-CIO president Liz Shuler celebrated Howell's ruling in a Thursday statement, saying that "more than a month after Trump effectively shut down the NLRB by illegally firing Gwynne Wilcox, denying it the quorum it needs to hold union-busters accountable, the court ordered Wilcox immediately returned to her seat, allowing the NLRB to get back to its essential work."

"The court also sent an important message that a president cannot undermine an independent agency by simply removing a member of the board because he disagrees with her decisions," she said. "Working people around the country count on equal justice and fair decision-making from an independent NLRB—and today, because of Wilcox's commitment to the mission of the NLRB and her refusal to stand by as Trump illegally removed her from the board, the NLRB can get back to work."

Wilcox isn't the only federal worker who has challenged the president's power to fire her. As Politico detailed:

On Thursday, a federal workplace watchdog fired by Trump—Special Counsel Hampton Dellinger—dropped his legal bid to reclaim his post after a federal appeals court permitted his termination. Cathy Harris, a member of the Merit Systems Protection Board, which oversees the grievance process for many federal employees, is also resisting Trump’s effort to remove her and was reinstated last month by a federal judge.

The Supreme Court likely will soon weigh in on Congress' ability to insulate executive branch officials from being fired by the president without cause. With Dellinger's decision to drop his legal fight, Harris' case appears likeliest to reach the high court in the near-term. It’s possible Wilcox's case will get folded into that ongoing fight.

The nation's highest court has a right-wing supermajority that includes three Trump appointees, though they have at times ruled against the president—including on Wednesday, when five justices refused to overturn a lower court order about foreign aid.

********************

Part 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GWYNNE A. WILCOX,

Plaintiff,

v.

DONALD J. TRUMP, in his official capacity as President of the United States

and

MARVIN E. KAPLAN, in his official capacity as Chairman of the National Labor Relations Board,

Defendants.

Civil Action No. 25-334 (BAH)

Judge Beryl A. Howell

MEMORANDUM OPINION

Scholars have long debated the degree to which the Framers intended to consolidate executive power in the President. The “unitary executive theory”—the theory, in its purest form, that, under our tri-partite constitutional framework, executive power lodges in a single individual, the President, who may thus exercise complete control over all executive branch subordinates without interference by Congress—has been lauded by some as the hallmark of an energetic, politically accountable government, while rebuked by others as “anti-American,” a “myth,” and “invented history.”1 Both sides of the debate raise valid concerns, but this is no mere academic exercise.2 The outcome of this debate has profound consequences for how we Americans are governed. On the one hand, democratic principles militate against a “headless fourth branch”3 made up of politically unaccountable, independent government entities that might become agents of corrupt factions or private interest groups instead of the voting public. Additionally, at least theoretically, empowering a President with absolute control over how the Executive branch operates, including the power to “clean house” of federal employees, would promote efficient [???]implementation of presidential policies and campaign promises that are responsive to the national electorate. On the other hand, the advantages of impartial, expert-driven decision-making and congressional checks on executive authority favor some agency independence from political changes in presidential administrations, with the concomitant benefits of stability, reliability, and moderation in government actions. No matter where these pros and cons may lead, the crucial question here is, what does the U.S. Constitution allow?

To start, the Framers made clear that no one in our system of government was meant to be king—the President included—and not just in name only. See U.S. CONST. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States.”). Indeed, the very structure of the Constitution was designed to ensure no one branch of government had absolute power, despite the perceived inefficiencies, inevitable delays, and seemingly anti-democratic consequences that may flow from the checks and balances foundational to our constitutional system of governance.

The Constitution provides guideposts to govern inter-branch relations but does not fully delineate the contours of the executive power or the degree to which the other two branches may place checks on the President’s execution of the laws. As pertinent here, the Constitution does not, even once, mention “removal” of executive branch officers. The only process to end federal service provided in the Constitution is impeachment, applicable to limited offices (like judges and the President) after a burdensome political process. See, e.g., id. art. II, § 4 (impeachment of President); id. art. III, § 1 (impeachment of federal judges). This constitutional silence on removal perplexed the First Congress, bedeviled a President shortly thereafter and a second President after the Civil War during Reconstruction (leading to condemnation of the former and impeachment proceedings against the latter), and has beset jurists and scholars in our modern era. See infra Part III.A.3.b.4

Yet, in assessing separation of powers, the Constitution itself is not the only available guide. Historical practice and a body of case law are, respectively, instructive and binding. See infra Part III.A.1; e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015) (“In separation of powers cases this Court has often ‘put significant weight upon historical practice.’” (quoting NLRB v. Noel Canning, 573 U.S. 513, 524 (2014))). Both make clear that textual silence regarding removal does not confer absolute authority on a President to willy-nilly override a congressional judgment that expertise and insulation from direct presidential control take priority when a federal officer is tasked with carrying out certain adjudicative or administrative functions. As Justice Louis Brandeis eloquently opined, “[c]hecks and balances were established in order that this should be ‘a government of laws and not of men,’” observing further that the separation of powers was not adopted “to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Myers v. United States, 272 U.S. 52, 292-93 (1926) (Brandeis, J., dissenting).

A President who touts an image of himself as a “king” or a “dictator,”5 perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution. In our constitutional order, the President is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary. U.S. CONST. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”). At issue in this case, is the President’s insistence that he has authority to fire whomever he wants within the Executive branch, overriding any congressionally mandated law in his way. See Letter from Sarah Harris, Acting Solicitor General, to Sen. Richard Durbin on Restrictions on the Removal of Certain Principal Officers of the United States (“Letter from Acting SG”) (Feb. 12, 2025), https://perma.cc/D67G-FKK4 (describing the Trump administration’s view of the removal power). Luckily, the Framers, anticipating such a power grab, vested in Article III, not Article II, the power to interpret the law, including resolving conflicts about congressional checks on presidential authority. The President’s interpretation of the scope of his constitutional power—or, more aptly, his aspiration—is flat wrong.

The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law. Defendants concede that removal of plaintiff as a Board Member violates the terms of the applicable statute, see Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:12-13, and because this statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained.

I. BACKGROUND

The statutory and procedural background relevant to resolving this dispute is summarized below.

A. Statutory Background

The National Labor Relations Board (“NLRB”) was established ninety years ago by Congress in the National Labor Relations Act (“NLRA”) in response to a long and violent struggle for workers’ rights. See generally, J. Warren Madden, Origin and Early Years of the National Labor Relations Act, 18 HASTINGS L.J. 571 (1967); Arnold Ordman, Fifty Years of the NLRA: An Overview, 88 W. VA. L. REV. 15, 15-16 (1985). Congress sought to protect industrial peace and stability in labor relations and thus created a board to resolve efficiently labor disputes and protect the rights of employees to “self-organization, to form, join, or assist labor organizations [and] to bargain collectively through representatives of their own choosing.” 29 U.S.C. §157; see also id. § 151; Crey v. Westinghouse Elec. Corp., 375 U.S. 261, 271 (1964) (describing these goals); Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (same).

The NLRB is a “bifurcated agency” consisting, on one side, of a five-member, quasi-judicial “Board” that adjudicates appeals of labor disputes from administrative law judges (“ALJs”), and on the other, of a General Counsel (“GC”) and several Regional Directors who prosecute unfair labor practices and enforce labor law and policy. See NLRB, Who We Are, https://perma.cc/9RLA-FSYL; 29 U.S.C. §§ 153(a), (d), 160; Starbucks v. McKinney, 602 U.S. 339, 357 (2024) (Jackson, J., concurring in part and dissenting in part). The two sides operate independently, with the GC independent of the Board’s control. NLRB v. United Food & Com. Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 117-18 (1987) (describing how the Labor Management Relations Act of 1947 amended the NLRA to separate the prosecutorial and adjudicatory functions between the Board and General Counsel).

The NLRB generally addresses labor disputes as follows: Upon the filing of a “charge” by an employer, employee, or labor union, a team working under the Regional Director will investigate and decide whether to pursue the allegation as a formal complaint. See NLRB, Investigate Charges, https://perma.cc/CU82-KU4V.6 If the parties do not settle and the Director formally pursues the complaint, the Director will issue notice of a hearing before an ALJ. Id.; 29 U.S.C. § 160(b); 29 C.F.R. § 101.10; Starbucks, 602 U.S. at 342-43.7 If necessary, after issuance of a complaint, the Board may seek temporary injunctive relief in federal district court while the dispute is pending at the NLRB. 29 U.S.C. § 160(j); Starbucks, 602 U.S. at 342. The ALJ then gathers evidence and presents “a proposed report, together with a recommended order to the Board.” 29 U.S.C. § 160(c). That order will become the order of the Board unless the parties file “exceptions.” Id.; 29 C.F.R. §§ 101.11-.12. If the parties file exceptions requesting the Board’s review, the Board will consider the ALJ’s recommendation, gather additional facts as necessary, and issue a decision. 29 U.S.C. § 160(c); 29 C.F.R. § 101.12. The Board may craft relief, such as a cease-and-desist order to halt unfair labor practices or an order requiring reinstatement of terminated employees. 29 U.S.C. § 160(c). These orders, however, are not independently enforceable; the Board must seek enforcement in a federal court of appeals (and may appoint attorneys to do so). Id. §§ 154, 160(e); In re NLRB, 304 U.S. 486, 495 (1938) (noting compliance with a Board order is not obligatory until entered as a decree by a court). Aside from adjudicating disputes, the Board may also conduct and certify the outcome of union elections, 29 U.S.C. § 159, and promulgate rules and regulations to carry out its statutory duties, id. § 156.

Although both the Board members and the GC are appointed by the President with “advice and consent” from the Senate, id. §§ 153(a), (d), only the Board is protected from removal at-will by the President, who is authorized to remove a Board member “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause,” id. § 153(a). Such restrictions were intentional; much like many other multimember entities, the Board was designed to be an independent panel of experts that could impartially adjudicate disputes. See 29 U.S.C. § 153(a); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 CORNELL L. REV. 76, 770-71 (2013) (describing the NLRB as a classic example of an agency designed to be independent). Board members serve staggered five-year terms, and the President is authorized to designate one board member as Chairman. 29 U.S.C. § 153(a). In practice, the Board is partisan-balanced based on longstanding norms, though such a balance is not statutorily mandated. See Brian D. Feinstein & Daniel J. Hemel, Partisan Balance with Bite, 118 COLUM. L. REV. 9, 54-55 (2018).

B. Factual Background

As set out in plaintiff’s complaint and statement of material facts, and undisputed by defendants, plaintiff Gwynne Wilcox was nominated by President Biden and confirmed by the U.S. Senate to a second five-year term as member of the NLRB in September 2023. Pl.’s Mot. for Expedited Summ. J. (“Pl.’s Mot.”), Statement of Material Facts (“Pl.’s SMF”) ¶ 2, ECF No. 10-1; Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J., Statement of Undisputed Material Facts (“Defs.’ SUMF”) ¶ 2, ECF No. 23-2. She was designated Chair of the Board in December 2024. Complaint ¶ 12, ECF No. 1.

Shortly after taking office, President Trump moved Marvin Kaplan, a then-sitting Board member and a defendant in this case, into the position of Chair, replacing plaintiff. Id. ¶ 13. President Trump then, on January 27, 2025, terminated plaintiff from her position on the Board via an email sent shortly before 11:00 PM, by the Deputy Director of the White House Presidential Personnel Office. Pl.’s Decl., Ex. A, ECF No. 10-4; Pl.’s SMF ¶ 3; Defs.’ SUMF ¶ 3. The termination was not preceded by “notice and hearing,” nor was any “neglect of duty or malfeasance” identified, despite the explicit restrictions to removal of a Board member in the NLRA. Pl.’s Decl. ¶¶ 3-4; Pl.’s SMF ¶¶ 4-5; Defs.’ SUMF ¶ 5 (regarding lack of notice and hearing); Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:10-17. The email instead cited only political motivations—that plaintiff does not share the objectives of the President’s administration—and asserted, in a footnote, that the restriction on the President’s removal authority is unconstitutional as “inconsistent with the vesting of the executive Power in the President.” Pl.’s Decl. ¶ 3; Ex. A.

The NLRB’s Director of Administration, who reports directly to Mr. Kaplan, began the termination process, cutting off plaintiff’s access to her accounts and instructing her to clean out her office. Pl.’s Decl. ¶¶ 5-6. The Board already had two vacancies, and now, without plaintiff, it is reduced to only two sitting members—one short of the three-member quorum required to operate. [!!!] Compl. ¶ 18; 29 U.S.C. § 153(b). Removal of plaintiff has thus stymied the functioning of the Board.

Plaintiff filed the instant suit, challenging her removal and requesting injunctive relief against Mr. Kaplan so that she may resume her congressionally mandated role. See Compl. ¶¶ 21-22. Recognizing that this case involves a pure question of law, plaintiff moved for expedited summary judgment, on February 10, 2025, Pl.’s Mot., ECF No. 10, and defendants responded with a cross-motion for summary judgment, with briefing completed on a condensed schedule. See Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J. (“Defs.’ Opp’n”), ECF No. 23; Pl.’s Opp’n to Defs.’ Cross-Mot. and Reply in Supp. of Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 27; Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Reply”), ECF No. 30. Interested parties also weighed in as amici.8 Following a hearing, held on March 5, 2025, the parties’ cross-motions for summary judgement are ready for resolution.

II. LEGAL STANDARD

Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A fact is only “‘material’ if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. (quoting Anderson, 477 U.S. at 248).

A plaintiff “seeking a permanent injunction . . . must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Monsanto Co v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

III. DISCUSSION

In the ninety years since the NLRB’s founding, the President has never removed a member of the Board. Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem.”) at 4, ECF No. 10-2. His attempt to do so here is blatantly illegal, and his constitutional arguments to excuse this illegal act are contrary to Supreme Court precedent and over a century of practice. For the reasons explained below, plaintiff’s motion is granted. Plaintiff’s termination from the Board was unlawful, and Mr. Kaplan and his subordinates are ordered to permit plaintiff to carry out all of her duties as a rightful, presidentially-appointed, Senate-confirmed member of the Board.

A. Humphrey’s Executor and its Progeny are Binding on this Court.

The Board is a paradigmatic example of a multimember group of experts who lead an independent federal office. Since the early days of the founding of this country, Congress, the President, and the Supreme Court all understood that Congress could craft executive offices with some independence, as a check on presidential authority. That understanding has not changed over the 150-year history of independent, multimember commissions, nor over the 90-year history of the NLRB. The Supreme Court recognized this history and tradition in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), in upholding removal protections for such boards or commissions, and this precedent remains not only binding law, but also a well-reasoned reflection of the balance of power between the political branches sanctioned by the Constitution.

1. Removal Restrictions on Board Members are Well-Grounded in History and Binding Precedent.

As a textual matter, the Constitution is silent as to removals. See In re Hennen, 38 U.S. 230, 258 (1839). Consequently, though Article II grants the President authority over some appointments—with advice and consent of the Senate—and vests in him the “executive power,” Article II contains no express authority from which to infer an absolute removal power. Compare U.S. CONST. art. II, § 1, cl. 1 (vesting clause), and id., § 2, cl. 2 (appointments clause); to id. art. I, § 8, cl. 18 (clause granting Congress the authority “to make all laws” “necessary and proper” for carrying out its powers and “all other Powers vested . . . in the Government”). The Supreme Court has held that a general power to remove executive officers can be inferred from Article II, see Myers, 272 U.S. at 163-64, yet the contours of that removal power and the extent to which Congress may impose constraints are nowhere clearly laid out.

The courts in such cases must therefore turn to established precedent—judicial decisions as well as general practice and tradition. The Supreme Court has repeatedly recognized that “‘traditional ways of conducting government . . . give meaning’ to the Constitution.” Mistretta v. United States, 488 U.S. 361, 401 (1989) (alteration in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring)). Thus, “[ i]n separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’” Zivotofsky, 576 U.S. at 23 (quoting Noel Canning, 573 U.S. at 524). Even when the validity of a particular power is in question, the Court will, “in determining the . . . existence of [that] power,” give weight to “the usage itself,” United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915), and “hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached,” Noel Canning, 573 U.S. at 526. Justice Frankfurter in his seminal concurring opinion in Youngstown declared that “systematic, unbroken” practice could even “be treated as a gloss on ‘executive Power’ vested in the President.” 343 U.S. at 610-11.

Not only are the removal protections on members of the independent, multimember boards like the NLRB supported by over a century of unbroken practice, but they have also been expressly upheld in clear Supreme Court precedent. Since 1887, Congress has created multiple independent offices led by panels whose members are appointed by the President but removable only for cause. See, e.g., Interstate Commerce Act, Pub. L. No. 49-41, ch. 104, § 11, 24 Stat. 379, 383 (1887) (creating the Interstate Commerce Commission, with restrictions on officers’ removal except for “inefficiency, neglect of duty, or malfeasance”); Federal Reserve Act, Pub. L. No. 63-64, ch. 6, § 10, 38 Stat. 251, 260-61 (1913) (creating the Federal Reserve Board, whose members are removable only “for cause”). In 1914, Congress established the Federal Trade Commission (“FTC”) with an “inefficiency, neglect of duty, or malfeasance in office” removal restriction for its five commissioners. FTC Act, Pub. L. No. 63-203, ch. 311, § 1, 38 Stat. 717, 717-18 (1914).

The Supreme Court explicitly upheld removal restrictions for such boards when considering removal protections for the commissioners of the FTC in Humphrey’s Executor in 1935, while also recognizing the President’s general authority over removal of executive branch officials. The Court noted that commissioners of the FTC, “like the Interstate Commerce Commission” “are called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’” Id. at 624 (quoting Ill. Cent. R.R. Co. v. Interstate Com. Comm’n, 206 U.S. 441, 454 (1907)). Congress, having the power to create such expert commissions with quasi-legislative and quasi-judicial authority, must also have, “as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal for except for cause in the meantime.” Id. at 629.

Two months later, with the guidance supplied in Humphrey’s Executor and following the model of the FTC as endorsed by the Supreme Court there, Congress established the National Labor Relations Board. See Madden, supra, at 572-73; Yapp USA Auto. Sys., Inc. v. NLRB, --F. Supp. 3d--, No. 24-cv-12173, 2024 WL 4119058, at *5 (E.D. Mich. Sep. 9, 2024). Both entities—the FTC and NLRB—have five-member leadership boards with staggered terms of several years, minimizing instability and allowing for expertise to accrue. See 29 U.S.C. § 153(a); Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 216 (2020). Both were intended to exercise impartial judgment. See Datla & Revesz, supra, at 770-71 (describing independence of the NLRB); Seila L., 591 U.S. at 215-16 (describing the FTC as “designed to be ‘non-partisan’ and ‘to act with entire impartiality’” (quoting Humphrey’s Ex’r, 295 U.S. at 624)). The Board, like the FTC, is “predominately quasi judicial and quasi legislative” in nature, with the primary responsibility of impartially reviewing decisions made by ALJs. Humphrey’s Ex’r, 292 U.S. at 624; see 29 U.S.C. § 160. In fact, the Board does not prosecute labor cases nor enforce its rulings. The side of the NLRB managed by the General Counsel—who is removable at-will by the President—carries out those more “executive” powers. See 29 U.S.C. § 153(d) (describing the General Counsel’s “final authority, on behalf of the Board” over “the investigation of charges and issuance of complaints . . . and . . . the prosecution of such complaints before the Board”). As plaintiff correctly states, the Board closely resembles the FTC and is thus “squarely at the heart of the rule adopted in Humphrey’s Executor.” Pl.’s Mem. at 9.

Numerous other offices have followed the mold of the NLRB and FTC with multimember independent leadership boards protected from at-will removal by the President. See Pl.’s Mem. at 7 n.2 (listing, e.g., the Merit Systems Protection Board, 5 U.S.C. § 1202(d); the Federal Labor Relations Authority, 5 U.S.C. § 7104(b); and the Federal Energy Regulatory Commission, 42 U.S.C. § 7171(b)(1)). “Since the Supreme Court's decision in Humphrey’s Executor, the constitutionality of independent [multimember] agencies, whose officials possess some degree of removal protection that insulates them from unlimited and instantaneous political control, has been uncontroversial.” Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th 748, 760 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025); see also The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional” issues of separation of powers.).9

Recent consideration of the constitutionality of the removal protections for NLRB members have accordingly upheld those constraints on presidential removal authority under Humphrey’s Executor. See, e.g., Overstreet v. Lucid USA Inc., No. 24-cv-1356, 2024 WL 5200484, at *10 (D. Ariz. Dec. 23, 2024); Company v. NLRB, No. 24-cv-3277, 2024 WL 5004534, at *6 (W.D. Mo. Nov. 27, 2024); Kerwin v. Trinity Health Grand Haven Hosp., No. 24-cv-445, 2024 WL 4594709, at *7 (W.D. Mich. Oct. 25, 2024); Alivio Med. Ctr. v. Abruzzo, No. 24-cv-2717, 2024 WL 4188068, at *9 (N.D. Ill. Sep. 13, 2024); YAPP USA Automotive Sys., 2024 WL 4119058, at *7. Courts have also recently upheld restrictions on removal under Humphrey’s Executor for other multimember boards, such as the Consumer Product Safety Commission (“CPSC”). See, e.g., Leachco, 103 F.4th at 761-62; Consumers’ Rsch. v. CPSC, 91 F.4th 342, 352 (5th Cir. 2024); United States v. SunSetter Prods. LP, No. 23-cv-10744, 2024 WL 1116062, at *4 (D. Mass. Mar. 14, 2024). The same has been true for the FTC. See, e.g., Illumina, Inc. v. FTC, 88 F.4th 1036, 1046-47 (5th Cir. 2023); Meta Platforms, Inc. v. FTC, 723 F. Supp. 3d 64, 87 (D.D.C. 2024). A court in this district has also upheld removal protections for the Merit Systems Protection Board. See Harris v. Bessent, No. 25-cv-412 (RC), 2025 WL 679303, at *7 (D.D.C. Mar. 4, 2025). The 150-year history and tradition of multimember boards or commissions and 90-year precedent from the Supreme Court approving of removal protections for their officers dictates the same outcome for the NLRB here.

2. Defendants’ Argument that Humphrey’s Executor Does Not Control Fails.

Discounting this robust history, defendants posit that the President’s removal power is fundamentally “unrestricted” and that only two, narrow “exceptions” have been recognized: one for “inferior officers with narrowly defined duties,” as established in Morrison v. Olson, 487 U.S. 654 (1988), and the other for “multimember bod[ies] of experts, balanced along partisan lines, that performed legislative and judicial functions and [do not] exercise any executive power,” as established in Humphrey’s Executor. Defs.’ Opp’n at 5-6 (second passage quoting Seila L., 591 U.S. at 216). According to defendants, neither exception applies to the Board. Id. at 6. Putting aside to address later whether congressional authority to constrain the President’s removal authority is characterized fairly by defendants as a narrow “exception” to the rule of “unrestricted” removal power, see infra Part III.A.3.b, Humphrey’s Executor plainly controls.

Defendants emphasize that Humphrey’s Executor understood the FTC at the time not to exercise any “executive power,” which was key to its “exception,” and that the NLRB today clearly “wield[s] substantial executive power.” Defs.’ Opp’n at 6-8 (relying on Seila L., 591 U.S. at 216 n.2, 218); see also Defs.’ Reply at 3. They do not, however, meaningfully distinguish between the authority of the FTC in 1935, as recognized in Humphrey’s Executor, and the authority of the NLRB today. The FTC in 1935 had powers mimicking those of both the Board and the NLRB’s GC. The FTC had broad powers of investigation and could issue a complaint and hold a hearing for potential unfair methods of competition. See Humphrey’s Ex’r, 295 U.S. at 620, 621; see also 15 U.S.C. § 49 (authorizing the FTC’s subpoena power). The FTC, upon finding a violation, could issue a cease-and-desist order and then go to the Court of Appeals for enforcement. Humphrey’s Ex’r, 295 U.S. at 620-21; see also FTC Act, ch. 311, § 5, 38 Stat. at 719-20. The party subject to the order could also appeal to that court. Humphrey’s Ex’r, 295 U.S. at 621. Further, the FTC could issue rules and regulations regarding unfair and deceptive acts. See FTC Act, § 6, 38 Stat. at 722; Hon. R. E. Freer, Member of the FTC, Remarks on the FTC, its Powers and Duties at 2 (1940), https://www.ftc.gov/system/files/docume ... welers.pdf.

The NLRB’s collective authority, though comparable, see supra Part I.A (describing the NLRB’s GC’s authority to investigate and pursue enforcement against unfair labor practices and the Board’s adjudicatory authority and power to issue unenforceable cease-and-desist orders), is, if anything, less extensive than that of the FTC. The NLRB hardly engages in rulemaking (other than to establish its own procedures), instead relying on adjudications for the setting of precedential guidance. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (“The [NLRB], uniquely among major federal administrative agencies, has chosen to promulgate virtually all the legal rules in its field through adjudication rather than rulemaking.”). Moreover, the aspects of the NLRB’s authority most executive in nature—prosecutorial authority to investigate and bring civil enforcement actions—are tasks assigned to the GC instead of the Board itself. See 29 U.S.C. § 153(d).10

Even though the Supreme Court of 1935 may have not referred to these classic administrative powers as “executive” and the Supreme Court today would, see, e.g., Seila Law, 591 U.S. at 216 n.2, the substantive nature of authority granted to these two independent government entities does not significantly differ. If the Supreme Court has determined that removal restrictions on officers exercising substantially the same authority do not impermissibly intrude upon presidential authority, Humphrey’s Executor cannot be read to allow a different outcome here. That is especially true considering that the Supreme Court, in its next major decision addressing removal protections for executive branch officers, rejected the notion that the permissibility of “‘good cause’-type restriction[s] . . . turn[s] on whether or not th[e] official” is classified as “purely executive” or exercising quasi-legislative or quasi-judicial functions. See Morrison, 487 U.S. at 689.11

Defendants make a final, superficial distinction between the NLRB and the FTC to argue that the precedent of Humphrey’s Executor should not apply. Defs.’ Opp’n at 10. The NLRB, they note, has stricter removal protections because its members cannot be removed for “inefficiency,” whereas FTC members can. Id. In both Consumers’ Research, 91 F.4th at 346, 355-56, and Leachco, 103 F.4th at 761-63, however, courts of appeals upheld removal protections that did not include an exception for “inefficiency.” “Inefficiency” does not differ in substance from “neglect of duty,” so omitting “inefficiency” as a grounds for removal cannot be a dispositive difference in the President’s ability to exercise his Article II powers over the NLRB. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 COLUM. L. REV. 1, 8, 69 (2021) (explaining that the absence of “inefficiency” as a ground for removal does not unconstitutionally interfere with the President's authority). Defendants offer no reason to suggest otherwise. The NLRB fits well within the scope of Humphrey’s Executor.

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Part 2 of 2

3. Defendants’ Argument that Humphrey’s Executor Has Been “Repudiated” and is No Longer Good Law Is Not Persuasive.

Fundamentally, the position of defendants and their supporting state amici urging this Court not to apply Humphrey’s Executor stems from a reading of the Supreme Court’s subsequent case law as “repudiat[ing]” the precedent. Defs.’ Opp’n at 9 (quoting Seila L., 591 U.S. at 239 (Thomas, J., concurring in part)); Tennessee’s Amicus Br. at 7-10, ECF No. 18 (arguing forcefully that Humphrey’s Executor was wrongly decided and has been “narrowed . . . nearly out of existence”); Twenty States’ Amicus Br. at 3-8, ECF No. 26. Defendants therefore argue that Humphrey’s Executor must be read extremely narrowly, despite that “whatever little remains” is binding on this Court. Defs.’ Opp’n at 8 n.2. To the contrary, an unbroken line of cases since Humphrey’s Executor has reinforced the constitutionality of removal restrictions on multimember expert boards, and the pre-Humphrey’s Executor history demonstrates that this decision was well-grounded in accepted principles of checks and balances.

a. Post-Humphrey’s Executor Case Law Reinforces its Central Holding.

In every case following Humphrey’s Executor, the Supreme Court has preserved the constitutionality of removal protections on independent, multimember boards and commissions. Shortly following Humphrey’s Executor, in Wiener v. United States, 357 U.S. 349 (1958), the Court held that the Constitution did not grant the President authority to remove members of the multimember War Claims Commission “for no reason other than that he preferred to have on that Commission men of his own choosing.” Id. at 355-56. Thirty years later, in Morrison, the Court again recognized the exception to the President’s removal power for officers with adjudicatory powers, but further explained that the permissibility of removal restrictions did not turn on whether the officers’ functions were “quasi-legislative and quasi-judicial,” as opposed to executive in nature, instead looking to the degree to which they impeded the President’s ability to execute the laws. See 487 U.S. at 691-93 (upholding removal protections for independent counsel contained in the Ethics in Government Act).

Then, in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), the Court reiterated its holding in Humphrey’s Executor that “Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause” and declined to reexamine that precedent. Id. at 483 (striking down double for-cause removal protections); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667, 686 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (describing the defendants as attempting to compare the office’s removal protections to that of “the FCC, the FTC, and the NLRB,” which were understood to be “permissible under the Supreme Court's 1935 decision in Humphrey’s Executor”).

Most recently, in Seila Law, the Supreme Court likewise declined to “revisit [its] prior decisions allowing certain limitations on the President’s removal power.” 591 U.S. at 204. While defendants make much of dicta in this decision, such as that the FTC’s powers would now be considered executive, Defs.’ Opp’n at 9; see also Tennessee’s Amicus Br. at 9, Seila Law made key distinctions between single-head offices and multimember boards or commissions that reinforce why placing restrictions on removal of leaders of the latter is not problematic under our Constitution, see 591 U.S. at 224-26. Despite restrictions on removal, the President can exercise more control over a multimember board through his appointment power as vacancies arise, and with staggered terms, some Board vacancies arise during each administration. See id. at 225. Those new appointees can restrain the Board member the President might otherwise prefer to remove, and no President will be “saddled” with a single “holdover Director from a competing political party who is dead set against” his agenda. Id. at 225 (emphasis in original). That is particularly the case here, where President Trump could exercise near total control over the NLRB by appointing two members of his choosing to the Board to join Mr. Kaplan, whom the President appointed during his first term and recently elevated to Chairman, creating a majority of Trump appointees, and by appointing a General Counsel of his choice. See NLRB, Members of the NLRB Since 1935, https://www.nlrb.gov/about-nlrb/who-we- ... since-1935 (last visited Mar. 5, 2025); 29 U.S.C. § 153(d) (allowing the General Counsel to be removed at will).12

Moreover, the multimember structure prevents the public from being subject to decisions made unilaterally by an unelected official, who could become captured by private interests. The distribution of power among several individuals on the Board “avoids concentrating power in the hands of any single individual.” Seila L., 591 U.S. at 222-23. Lastly, unlike single-head offices, entities led by multimember boards have a robust basis—more than even a “foothold”—in “history [and] tradition.” Id. at 222. For these reasons, when the Court ultimately invalidated the removal restrictions on the CFPB’s director as a single head of the bureau, Chief Justice Roberts expressly suggested that “converting the CFPB into a multimember agency” would solve “the problem.” Id. at 237.13

Finally, two months ago, the Supreme Court denied certiorari in Leachco, where the Tenth Circuit upheld removal protections for commissioners on the Consumer Product Safety Commission under Humphrey’s Executor—once again, declining to revisit that precedent. See 103 F.4th 748 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025).

b. Presidential Removal Power Has Never Been Viewed as Unrestricted.

Defendants and their supporting states’ amici go even further in suggesting that not only has Humphrey’s Executor been repudiated over time but the opinion was also wrong at the time it was decided. Defs.’ Opp’n at 8 n.2, 9; Tennessee’s Amicus Br. at 7; see Twenty States’ Amicus Br. at 6-7. Defendants read Humphrey’s predecessor, Myers v. United States, 272 U.S. 52 (1926), as formalizing the President’s “unrestricted removal power,” which ultimately derives from the “vesting” clause in Article II establishing a “unitary” executive. Defs.’ Reply at 1-2 (first passage quoting Seila L., 591 U.S. at 215); Motions H’rg (Mar. 5, 2025), Rough Tr. at 30:22-31:4 (plaintiff’s counsel describing Myers as a “building block” in the unitary executive theory). They are again misguided. While the Myers Court made clear that the President has a general removal power for executive officials, defendants’ myopic focus on this case loses sight of the limitations in its holding, a point driven home in Humphrey’s Executor decided less than a decade later. Nothing in the Constitution or the historical development of the removal power has suggested the President’s removal power is absolute. In fact, the history upon which Myers relies and the immediately following Supreme Court decisions undercut any view that Congress, when exercising its constitutional authority to shape executive offices, is completely barred from conditioning the President’s exercise of his removal authority.

In Myers, Chief Justice Taft—the only person to have served both as the President and a Justice of the Supreme Court—recounted and relied on the history of the Decision of 1789, a congressional debate about the President’s removal powers during the First Congress, to declare unconstitutional a statute requiring the “advice and consent of the Senate” for both appointment and removal of federal postmasters. See 272 U.S. at 107, 111-36, 176-77.14 The First Congress had created the first three executive departments, the Departments of Foreign Affairs, War, and Treasury, and after much debate, ultimately granted plenary removal power to the President over the Secretary of Foreign Affairs and crafted that agency to be an arm of the President. Id. at 145; see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 25-29 (1994). The First Congress did not make clear whether that decision—to grant the President plenary removal authority over the Secretary of Foreign Affairs—derived from the Constitution or rather was granted by Congress’s own prerogative. See Myers, 272 U.S. at 285 n.75 (Brandeis, J., dissenting); Lessig & Sunstein, 94 COLUM. L. REV. at 26-28; Seila L., 591 U.S. at 271 (Kagan, J., dissenting in part and concurring in part) (“The summer of 1789 thus ended without resolution of the critical question: Was the removal power ‘beyond the reach of congressional regulation’?” (quoting Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1072 (2006))). Some clarity in the First Congress’s view may be gleaned, however, by the disparate approach that the Congress took with respect to the Department of the Treasury. Seeing the Treasury as a department less intrinsically tied to core executive powers enumerated in Article II like that over foreign policy, Congress gave far more direction to the structure of that department, specifying in detail its offices and functions and granting independence from unfettered presidential removal power to the Comptroller. See Lessig & Sunstein, supra, at 27-28. In short, the executive branch was not treated as strictly unitary, but rather as a branch with units of varying degrees of independence and generally subject to congressional direction through checks and balances—including on its personnel. See John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1964 n.135 (2011).

Chief Justice Taft in Myers cherry-picked only one portion of that 1789 story by highlighting what the First Congress did with the Department of Foreign Affairs. See 272 U.S. at 113-36; Seila L., 591 U.S. at 277 (Kagan, J., dissenting in part and concurring in part) (describing how scholars have “rejected Taft’s one-sided history”). Despite the structure of the Post Office far more closely resembling the Treasury Department of 1789 than the Department of Foreign Affairs, Chief Justice Taft ignored the actual nuances reflected in the Decision of 1789 as to congressional power to condition the President’s removal power reflected in the treatment of the new Treasury Department and instead read this history “through executive-colored glasses” to support “his strong preconceptions” as former President “about presidential removal power,” to reach the conclusion that a regional postmaster could not be subject to removal protections. Robert Post, Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States, 45 J. SUP. CT. HIST. 167, 172 & n.56 (2020) (first passage quoting Hayden Smith to William H. Taft (Sep. 1, 1925) (Taft Papers)); Myers, 272 U.S. at 176; Lessig & Sunstein, supra, at 25-30.15 Dicta in the lengthy Myers majority opinion made broad pronouncements about the importance of the presidential removal power that were both contradictory and inapposite: While Chief Justice Taft promoted the benefits of recognizing vast presidential removal authority on one hand, he recognized that Congress could legislate around appointment and removal of principal officers, in some circumstances, and inferior officers, refusing to threaten protections for the civil service, on the other. Id. at 127, 134-35, 161-62, 183, 186 (“[T]here may be duties of a quasi judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. . . . [Moreover,] [the appointments clause] give[s] to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them.”).16

Only nine years later, in Humphrey’s Executor, the Supreme Court—consisting of six of the same justices who participated in the Myers decision (i.e., Justices Sutherland, Van Devanter, Brandeis, Stone, McReynolds, and Butler)—unanimously retreated, denouncing the idea of “illimitable” removal authority and disavowing Myers’ abundant dicta. Morrison, 487 U.S. at 687 (“In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies.” (quoting 292 U.S. at 629)). Justice Sutherland, who authored Humphrey’s despite joining the majority opinion in Myers, limited Myers to “the narrow point” that “the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress” and wrote that other “expressions . . . are beyond the point involved and therefore do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, these expressions are disapproved.” Humphrey’s Ex’r, 292 U.S. at 626-27. Humphrey’s Executor, consistent with the dissents in Myers, did not foreclose that the President may have total authority over removal of some officials (like “high political officers,” Myers, 272 U.S. at 241 (Brandeis, J., dissenting)), but it made clear that his removal authority may certainly be limited by Congress in other circumstances.17 Humphrey’s Ex’r, 292 U.S. at 629-32.

The takeaway from Myers is therefore discrete and uncontroversial: While Congress may structure executive branch offices via statute and legislate about the roles of executive branch officers, including standards for their removal, Congress cannot reserve for itself an active role in the removal decision. The problem in Myers was that the statute required Senate advice and consent to remove postmasters and that encroached on the presidential power of removal. 272 U.S. at 107. It cannot be gainsaid that the President has the power of removal of executive branch officers. When Congress has statutorily provided a for-cause removal requirement, this means that the President has the authority to determine whether the for-cause requirement prescribed by Congress has been met. As the Supreme Court has since repeatedly articulated, “the essence” of “Myers was the judgment that the Constitution prevents Congress from draw[ing] to itself the” power to remove. Morrison, 487 U.S. at 686 (citing Bowsher v. Synar, 478 U.S. 714 (1986), for that interpretation). That holding is completely compatible with Humphrey’s Executor. Little more can be gleaned from the unreliable historical retelling and prolix Myers majority opinion.18

In short, neither the Founding-era history nor Myers can carry the heavy weight that the current President has thrust upon it. See Letter from Acting SG (“In Myers . . ., the Supreme Court recognized that Article II of the Constitution gives the President an ‘unrestricted’ power of ‘removing executive officers.’”). Neither supports the view that the President’s removal power is “illimitable.” Whatever the benefits of unrestricted removal authority under certain circumstances, “[t]he Framers did not constitutionalize presidential control over all that is now considered ‘executive’; they did not believe that the President must have plenary power over all we now think of as administration,” Lessig & Sunstein, supra, at 118, and neither did the early twentieth century Supreme Court.

The holding in Humphrey’s Executor, that Congress could create boards or commissions with elements of independence from the President, was therefore not at all a “fiction” or an aberration, as defendants have supposed. Defs.’ Opp’n at 9.19 Humphrey’s Executor, and thus NLRB Board members’ removal protections, are consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements. That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence.

c. Humphrey’s Executor Remains Binding.

In any case, Humphrey’s Executor remains binding on this Court, as defendants rightly acknowledge. See Defs.’ Opp’n at 8 n.2; Illumina, 88 F.4th at 1047 (“[T]he question of whether . . . Humphrey’s Executor [is] no longer binding” is for the Supreme Court alone to answer.). As the Supreme Court has made clear, “[ i]f a precedent . . . has direct application in a case, yet appears to rely on reasons rejected in some other line of decisions,” the lower courts should still “leav[e] to the [Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also Nat’l Sec. Archive v. CIA, 104 F.4th 267, 272 n.1 (D.C. Cir. 2024) (“This court is charged with following case law that directly controls a particular issue, ‘leaving to [the Supreme] Court the prerogative of overruling its own decisions.’” (alterations in original) (quoting Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023))); Meta Platforms, 723 F. Supp. 3d at 87 (“It is certainly not this Court’s place to deem a long-standing Supreme Court precedent obsolete . . . and thus no longer binding.” (internal quotation marks and citation omitted)). This Court would be bound to conclude that plaintiff’s termination was unlawful even were the conclusion reached—and this Court adamantly has not—that Humphrey’s Executor was, by today’s measure, ill-reasoned or wrongly decided.

B. Plaintiff is Entitled to Permanent Declaratory and Injunctive Relief.

For all of these reasons, plaintiff prevails on the merits and is therefore entitled to a declaratory ruling that she was unlawfully terminated from her position as a member of the Board. Defendants concede as much. Motions H’rg (Mar. 5, 2025), Rough Tr. at 71:23-72:1 (defense counsel stating, “We are not fighting this requested declaratory judgment.”).

Plaintiff further requests injunctive relief against Mr. Kaplan, ordering him to allow plaintiff to carry out all of her duties. Compl. at 7. To demonstrate that injunctive relief is warranted, a plaintiff must show that (1) she has suffered an irreparable injury, (2) remedies available at law are inadequate to compensate, (3) a remedy in equity is warranted considering the balance of the hardships to each party, and (4) the public interest is not disserved. eBay Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). Notwithstanding plaintiff’s success on the merits, defendants contest her entitlement to injunctive relief. Defs.’ Opp’n at 10.

1. Plaintiff’s Irreparable Harm and Inadequate Remedies at Law

Plaintiff is suffering irreparable harm that cannot be repaired in the absence of an injunction.20 Courts have recognized as irreparable harms the “unlawful removal from office by the President” and “the obviously disruptive effect” that such removal has on the organization’s functioning. Berry v. Reagan, No. 83-cv-3182, 1983 WL 538, at * 5 (D.D.C. Nov. 14, 1983), vacated as moot, 732 F.2d 949 (Mem.) (D.C. Cir. 1983). In Berry, terminated members of the Civil Rights Commission challenged President Reagan’s decision to remove them. Id. at *1. The Commission was “left without a quorum,” and the court recognized as an irreparable injury both the commission’s inability to “fulfill its mandate” and the individuals’ inability to serve “Congress in the furtherance of civil rights.” Id. at *5. Likewise here, plaintiff has been deprived of a presidentially appointed and congressionally confirmed position of high importance, and both she and, by consequence, the NLRB have been deprived of the ability to carry out their congressional mandate in protecting labor rights—which cannot be retroactively cured by monetary damages. See id.; Dellinger v. Bessent, No. 25-cv-385 (ABJ), 2025 WL 471022, at *11-13 (D.D.C. Feb. 12, 2025) (“[T]he loss of the ability to do what Congress specifically directed [her] to do cannot be remediated with anything other than equitable relief.”); Harris v. Bessent, --F. Supp.3d--, No. 25-cv-412 (RC), 2025 WL 521027, at *7 (D.D.C. Feb. 18, 2025) (“By vindicating [her] right to occupy th[at] office, th[is] plaintiff[] act[s] as much in [her] own interests as those of [her] agenc[y’s]. . . . Striking at the independence of these officials accrues harm to their offices, as well.”).21

Furthermore, plaintiff and the NLRB suffer an injury due to the loss of the office’s independence. As an entity entrusted with making impartial decisions about sensitive labor disputes, the NLRB’s character and perception as neutral and expert-driven is damaged by plaintiff’s unlawful removal. See Humphrey’s Ex’r, 295 U.S. at 630 (“[The] coercive influence [of the removal power] threatens the independence of a commission.”); Harris, 2025 WL 679303, at *13 (“[T]he MSPB's independence would evaporate if the President could terminate its members without cause, even if a court could later order them reinstated.”). Money likewise cannot make up for that kind of intangible and reputational harm.

Defendants argue that, regardless of the injury, plaintiff’s requested remedy—reinstatement to her position—is one the Court cannot grant. Defs.’ Opp’n at 11. Not only have all previous cases sought back pay instead of reinstatement, defendants point out, but also reinstatement is not a remedy historically available at equity, which constrains the relief available to the Court today. Id. at 12 (citing Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 319 (1999)). Plaintiff counters, however, that she does not request the remedy of “reappointment” and does not need to be reinstated: She requests only a declaration that the President lacked authority to remove her—making the termination email void ab initio—and injunctive relief to enable her to carry out her position as before. See Pl.’s Reply at 9.

Defendants do not challenge the Court’s ability to afford declaratory relief, but they do challenge an injunction running against the executive branch, even against the President’s subordinates, to permit plaintiff to carry out her duties. Defs.’ Opp’n at 11, 13. They contend that such relief would effectively “compel[]” the President “to retain the services of a principal officer whom he no longer believes should be entrusted with the exercise of executive power.” Defs.’ Opp’n at 11; see also Defs.’ Reply at 7-8. At most, however, this argument simply restates defendants’ position on the merits, because, as a general matter, courts undoubtedly have authority to constrain unlawful presidential action by enjoining the President’s subordinates. See, e.g., Youngstown, 343 U.S. at 582, 589 (holding a presidential act unconstitutional and affirming the district court judgment which restrained Secretary of Commerce); Chamber of Com. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“[ I]t is now well established that ‘[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive.’ Franklin v. Massachusetts, 505 U.S. 788, 815 (1992) (Scalia, J., concurring in part and concurring in the judgment). Even if the Secretary were acting at the behest of the President, this ‘does not leave the courts without power to review the legality [of the action], for courts have power to compel subordinate executive officials to disobey illegal Presidential commands.’ Soucie v. David, 448 F.2d 1067, 1072 n. 12 (D.C. Cir. 1971).” (alterations in original)); Dellinger v. Bessent, No. 25-5028, 2025 WL 559669, at *6 n.1 (D.C. Cir. Feb. 15, 2025) (noting that a court “can unquestionably review the legality of the President’s action by enjoining the officers who would attempt to enforce the President’s order”).

Moreover, the D.C. Circuit has held such relief is appropriate in this type of employment context: A court may, by targeting a President’s subordinates, “reinstate a wrongly terminated official ‘de facto,’ even without a formal presidential reappointment” that would require injunctive relief against the President himself. Severino v. Biden, 71 F.4th 1038, 1042-43 (D.C. Cir. 2023) (holding that the plaintiff’s injury was therefore redressable); cf. Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996) (holding that plaintiff’s claim was redressable because injunctive relief against inferior officials, who could de facto reinstate plaintiff by allowing him to exercise the privileges of his office, would remedy plaintiff’s harm); see also Harris, 2025 WL 679303, at *10-12 (holding that the court can order such relief to remedy an unlawful termination and relying on Swan and Severino); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *29-31 (D.D.C. Mar. 1, 2025) (same). The Court therefore has the authority to issue both the declaratory and injunctive remedies that plaintiff seeks.22

2. Balance of the Equities and the Public Interest

The balance of the equities and the public interest also favor injunctive relief here. See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting that, where the government is a party, “[t]hese two factors merge”). The public has an interest in efficient and peaceful resolution of labor conflicts, and the Board’s functioning is crucial to that goal. In 2024, the NLRB received 20,000 to 30,000 unfair labor practice charges, and the Board reviewed 144 unfair labor practice cases and 115 election certification cases. See Nineteen States & D.C.’s Br. at 7, ECF No. 31 (citing NLRB, Investigate Charges, https://perma.cc/CU82-KU4V; NLRB, Board Decisions Issued, https:www.nlrb.gov/reports/agency-performance/board-decisions-issued (last visited Feb. 24, 2025)). Without a functioning NLRB, unfair labor practices go unchallenged, union elections go unrecognized, and pending labor disputes go unreviewed. See Pl.’s Mem. at 12 (providing one example where Whole Foods has refused to recognize a union election because it claims the NLRB lacks the authority to certify it); Pl.’s Reply at 12 (citing an additional example where CVS has refused to recognize a majority elected union). Incentives to comply with national labor law may be severely undercut if no agency is available for enforcement. Employees, employers, and bargaining units all suffer as a result. The public also has an interest in the protection of duly enacted, constitutional laws—like the NLRA—from encroachment from other branches. See League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“[T]here is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern their existence and operations.’” (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994))). Reinstating plaintiff would allow the NLRB to reach a quorum, thereby allowing the Board to carry out the important work in promoting labor stability, adjudicating labor disputes, and protecting workers’ rights, without inflicting any measurable harm on defendants.23

Defendants protest that the President will indeed experience harm—by virtue of retaining “a principal officer whom the President no longer believes should be entrusted with the exercise of executive power,” resulting in the executive branch “slip[ping] from the Executive’s control, and thus from that of the people.” Defs.’ Opp’n at 15 (second passage quoting Free Enter. Fund, 561 U.S. at 499). Yet, President Trump can exercise control over the NLRB by appointing two members of his choosing to the vacant seats and appointing a General Counsel who will adopt his enforcement priorities; he simply has chosen not to do so. In any case, whether the public will benefit more from the balance Congress has struck in preserving some independence from political whims in the administration of our national labor laws or from complete executive control goes to the core of the constitutional question underlying the merits—and thus the answer is dictated by binding precedent.

Finally, defendants predict their ultimate success before the Supreme Court, warning that if plaintiff is allowed to resume her duties on the Board now, any NLRB decisions in the meantime may be voidable, and “the NLRB will be under a heavy cloud of illegitimacy.” Defs.’ Reply at 9; see also Defs.’ Opp’n at 16; Twenty States’ Amicus Br. at 16 (suggesting that “reinstatement hampers effective governance” by causing “intra-office ‘chaos’” and questions about the fitness of the official). The possibility of future changes in the law is not enough, however, to permit an unlawful termination and the halting of all Board activity in the meantime. Plaintiff’s wrongful termination has caused “chaos” enough and shall not be allowed to stand based on defendants’ self-serving speculation.

IV. CONCLUSION

The President seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme. Defendants cite in their briefing Trump v. United States, 603 U.S. 593, 608-09 (2024) (granting the President absolute and presumptive immunity from criminal liability for “official acts”), to argue that the removal power is “conclusive and preclusive,” with the result that the President need not be subject to criminal or civil legislative constraints. Defs.’ Reply at 7. The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law. The President has given no sufficient reason to accept that path here.

Humphrey’s Executor and its progeny control the outcome of this case and require that plaintiff be permitted to continue her role as Board member of the NLRB and her termination declared unlawful and void. The Constitution and caselaw are clear in allowing Congress to limit the President’s removal power and in allowing the courts to enjoin the executive branch from unlawful action. Defendants’ hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present “extraordinary intrusion[s] on the executive branch,” Defs.’ Opp’n at 1, is both incorrect and troubling. Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy. See Myers, 272 U.S. at 293 (Brandeis, J., dissenting). An American President is not a king—not even an “elected” one24—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: March 6, 2025

__________________________
BERYL A. HOWELL
United States District Judge
_______________

Notes:

1 Compare, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008), Saikrishna B. Prakash, Imperial from the Beginning: The Constitution of the Original Executive (2015), and Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 597 (1994); with, e.g., Allen Shoenberger, The Unitary Executive Theory is Plainly Wrong and Anti-American: “Presidents are Not Kings,” 85 ALB. L. REV. 837, 837 (2022), Christine Kexel Chabot, Interring the Unitary Executive, 98 NOTRE DAME L. REV. 129 (2022), and Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 4 (1994) (“Any faithful reader of history must conclude that the unitary executive . . . is just myth.”); Cass R. Sunstein, This Theory is Behind Trump’s Power Grab, N.Y. TIMES (Feb. 26, 2025), https://www.nytimes.com/2025/02/26/opin ... eory.html; see also Julian Davis Mortenson, The Executive Power Clause, 168 U. PA. L. REV. 1269, 1334 (2020) (describing “the exercise of executive power” as “fully subordinate to instructions by its legislative principal” at the founding).

2 The academy has provided various formulations of the “unitary executive” theory. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1158 (1992) (“Unitary executive theorists claim that all federal officers exercising executive power must be subject to the direct control of the President.”); Lessig & Sunstein, supra, at 2 (“Many think that under our constitutional system, the President must have the authority to control all government officials who implement the laws.”); Chabot, supra, at 129 (2022) (describing the “unitary executive” theory as the idea that the Constitution gave the President “plenary removal power” affording him “‘exclusive control over subordinates’ exercise of executive power”).

3 Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 578 (1974) (quoting The President’s Comm. on Admin. Mgmt., Administrative Management in the Government of the United States 30 (1937)).

4 In 1834, President Andrew Jackson fired two Secretaries of the Treasury when each refused his order to remove U.S. funds from the Second National Bank, which Jackson viewed as having “resist[ed] his reelection in part with bank funds,” and these removal actions triggered a congressional condemnation resolution for an abuse of power. See Lessig & Sunstein, supra n.1, at 78-80. Jackson’s replacement as Secretary at Treasury, Roger Taney, did as ordered and was later appointed Chief Justice. Id. at 79. The resolution condemning President Jackson was ultimately expunged, in 1837, but not without significant debate and Jackson’s reputational decline. See id. at 81-83.

Over thirty years later, in 1867, President Andrew Johnson’s removal of the Secretary of War in defiance of a congressional statute led to his impeachment and near conviction. Richard Murphy, 32 FED. PRAC. & PROC. JUD. REV. § 8128 (2d ed.) (2024).

5 See @WhiteHouse, X (Feb. 19, 2025, 1:58 PM), https://perma.cc/V9Y2-SWRD (“LONG LIVE THE KING!”); WSJ News, Trump Says He Won’t Be a Dictator “Except for Day One” if Re-Elected, YOUTUBE (DEC. 6, 2023), https://www.youtube.com/watch?v=dQkrWL7YuGk; see also @realDonaldTrump, X (Feb. 15, 2025, 1:32 PM), https://perma.cc/S5GR-BXF5 (“He who saves his Country does not violate any Law.”). Some of defendants’ supporting amici also draw analogies to the British monarchy; Tennessee has described the tradition of the British king’s “‘prerogative power to remove’ executive officers ‘at will,’” which “carried into the United States.” Tennessee’s Amicus Br. at 5-6 (quoting Michael W. Connell, The President Who Would Not Be King 162 (2020)). In a democracy created to repudiate that very regime, that analogy has little purchase.

6 The initial request made by the employee, union, or employer is referred to as a “charge”; only the Director issues a “complaint.” NLRB, What We Do, https://perma.cc/CU82-KU4V.

7 If the parties do formally settle after issuance of a complaint, Board approval is required. NLRB, 484 U.S. at 120.

8 Amici include: the Constitutional Accountability Center (“CAC”) and a cohort of nineteen states and the District of Columbia, led by Minnesota, writing in support of plaintiff, see CAC’s Amicus Br., ECF No. 15; Nineteen States & D.C.’s Amicus Br., ECF No. 31; and Tennessee and a cohort of twenty states, led by Florida, writing in support of defendants, see Tennessee’s Amicus Br., ECF No. 18; Twenty States’ Amicus Br., ECF No. 26.

9 Defendants protest the reliance on history and tradition because independent multimember commissions date back only to the late 1880s. Defs.’ Reply at 4-5. “[S]uch a practice comes far too late to provide reliable evidence of the original public meaning of Article II or the Constitution’s separation of powers,” in defendants’ view. Defs.’ Reply at 4-5. That in no way invalidates the significance of longstanding tradition, however, which is probative “[e]ven when the nature of or longevity of [the] practice is subject to dispute, and even when that practice began after the founding era.” Noel Canning, 573 U.S. at 525; see id. at 528-29 (relying on a post-Civil War practice of intra-recess appointments); CAC’s Amicus Br. at 11, ECF No. 15 (making this point).

10 Defendants suggest that because the NLRB makes “significant decisions shaping the rights and obligations of Americans” and “set[ting] federal labor policy,” the “constitutional calculus” is different, and the Humphrey’s Executor “exception” cannot apply. Defs.’ Reply at 3, 5; Motions H’rg (Mar. 5, 2025), Rough Tr. at 54:1-7 (citing NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990) (“[T]he NLRB has the primary responsibility for developing and applying national labor policy.”)). Defendants do not, however, explain how applying federal law in individual adjudications establishes “federal labor policy” any more than the rulemaking and adjudications of the FTC in Humphrey’s Executor do, nor do they explain why subsequent caselaw—see supra Part III.A.3.a—should be read as putting such a gloss on the holding of Humphrey’s. Plaintiff contributed little to the debate about the scope of the NLRB’s powers that may be considered “executive,” simply tying its authorities closely to the FTC in 1935, despite the NLRB’s bifurcated structure, resulting in a more cabined exercise of any executive authority by the Board itself. See Pl.’s Reply at 3-5; see also Motions H’rg (Mar. 5, 2025), Tr. at 23:5-13 (plaintiff’s counsel stating, “answering the question about exactly what ‘executive’ means and what those terms ‘quasi-legislative’ and ‘quasijudicial’ mean, it’s not the easiest thing in the world. I think, for purposes of this motion that’s before you, I think what matters is that . . . Humphrey’s Executor is binding.”).

11 Defendants’ argument about the exercise of “executive power” is ultimately tautological and leaves Humphrey’s Executor completely devoid of force. They reason that because the NLRB is housed within the executive branch, the Board inherently exercises “executive power.” Defs.’ Opp’n at 7 (citing Seila L., 591 U.S. at 216 n.2 (quoting City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013))). Reading Humphrey’s Executor to allow removal protections only for offices that do not exercise “executive power,” defendants then conclude that the NLRB does not fit within Humphrey’s Executor. The necessary implication of such reasoning is that no board or commission placed with the executive branch could, as a constitutional matter, be legally subject to removal protections duly enacted by Congress. Yet, defendants dodge that extraordinary result and contradictorily suggest that removal protections on the Federal Reserve Board are acceptable because that Board does not exercise an “executive function.” Defs.’ Reply at 5; see also Motions H’rg (Mar. 5, 2025), Rough Tr. at 59-60 (defense counsel declining to discuss Federal Reserve Board or the Federal Open Market Committee or why these entities should be treated differently than the NLRB as to presidential removal power).

Recognizing that the exercise of “executive power” could not be dispositive, the Fifth Circuit in Consumers’ Research agreed with the plaintiffs there that the CPSC “wields substantial executive power” but still held that the CPSC was constitutional under Humphrey’s Executor. 91 F.4th at 353-55 (“Having concluded that the Commission exercises substantial executive power (in the modern sense), we must next consider whether that characteristic—standing alone—removes the Commission from the Humphrey's exception. We conclude that it does not . . . .”). The Fifth Circuit examined the other factors in Seila Law to conclude that the removal protections for CPSC members were constitutionally sound: The CPSC does not have a novel structure or present a historically unprecedented situation; the CPSC does not have a single director but rather a multimember board; and the CPSC does not have any of the other features that concerned the Court in Seila Law, such as the receipt of funds outside the appropriation process or the inability of the President to influence the office’s leadership through the appointment power. See id.

Regardless whether the NLRB exercises “substantial executive power,” “executive power,” or “quasi-legislative and quasi-judicial power,” the NLRB does not sufficiently differ from the FTC to warrant a departure from Humphrey’s Executor.

12 Instead, by bringing the Board to a complete halt, the President has foreclosed his own ability to see his Board appointees effectuate his agenda and has frozen the functioning of an important government office.

13 The Supreme Court’s most recent removal protections case, Collins v. Yellen, 594 U.S. 220 (2021), was likewise about an office led by a single director, and the Court there reaffirmed it “did ‘not revisit [its] prior decisions allowing certain limitations on the President’s removal power’” in Seila Law. Id. at 250-51 (quoting Seila L., 591 U.S. at 204).

14 The statute regarding removal of the postmasters read: “Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.” Myers, 272 U.S. at 107.

15 Notably, Chief Justice Taft reached this conclusion over three dissents, including from Justices Holmes and Brandeis. Myers, 272 U.S. at 178-295. Justice Brandeis, in particular, espoused a view of checks and balances that emphasized the interdependence of the executive and legislative branches, vindicated in Justice Jackson’s concurring opinion in Youngstown, 343 U.S. at 634. See Myers, 272 U.S. at 240-95.

16 The bold position taken by the current administration, see Exec. Order No. 14215, 90 Fed. Reg. 10447 (2025), that the President has supreme control over all of his subordinates threatens to upend limits on the removal power over inferior officers, expressly acknowledged in Myers.

17 Justice Brandeis’s dissent in Myers was not so broad as to authorize Congress to restrict presidential authority over removal of anyone in the executive branch. See Myers, 272 U.S. at 240-42 (Brandise, J., dissenting). Rather, he focused on the fact that the postmaster was an inferior officer, very unlike that of the Secretary of Foreign Affairs, and the mischief that would result if the majority decision were read to endorse absolute presidential removal authority for all officials. Id. at 241, 247, 257 (“Power to remove, as well as to suspend, a high political officer, might conceivably be deemed indispensable to democratic government and, hence, inherent in the President. But power to remove an inferior administrative officer appointed for a fixed term cannot conceivably be deemed an essential of government.”); see also id. at 181-82, 187, 193 (McReynolds, dissenting) (resisting Myers’ overbroad dicta suggesting that all executive officers must serve at the pleasure of the President). In the dissenters’ views, a functional analysis into an office’s role and responsibilities—like that in Humphrey’s Executor—was necessary, but only for principal officers.

In the face of the current administration’s push for a more absolutist presidential removal power, history provides significant cautions: Protections for inferior federal officers came about to counter the extensive “spoils system” that characterized the executive branch in the early 1800s—particularly during the presidency of Andrew Jackson, whose controversial legacy is due in part to his association with widespread corruption. See Myers, 272 U.S. at 276-83 (McReynolds, J., dissenting); id. at 272 U.S. at 250-52 (Brandeis, J., dissenting). Congress having a hand in executive appointments and removal was seen as an antidote to corruption. Such provisions set the stage for the development of the modern civil service system. See id.; Katherine Shaw, Partisanship Creep, 118 NW. UNIV. L. REV. 1563, 1573 & n. 48 (“[A] few decades after Andrew Jackson's administration, strong discontent with the corruption and inefficiency of the patronage system of public employment eventuated in the Pendleton Act, the foundation of modern civil service.” (quoting Elrod v. Burns, 427 U.S. 347, 354 (1976))).

18 At the motions hearing, defense counsel argued that this interpretation of both Myers and Humphrey’s Executor had been rejected by the Supreme Court in Seila Law, 591 U.S. at 228. Motions H’rg (Mar. 5, 2025), Rough Tr. at 62:1-17. That is not so. In Seila Law, amicus had distilled the Court’s precedent as follows:

Humphrey’s Executor and Morrison establish a general rule that Congress may impose “modest” restrictions on the President’s removal power, with only two limited exceptions. . . . Congress may not reserve a role for itself in individual removal decisions (as it attempted to do in Myers and Bowsher). And it may not eliminate the President’s removal power altogether (as it effectively did in Free Enterprise Fund). Outside those two situations, amicus argues, Congress is generally free to constrain the President's removal power.

Seila L., 591 U.S. at 228 (emphasis in original) (internal citations omitted). Rather than reject that reconciliation of Myers and Humphrey’s Executor, the Court simply restated the principle, uncontroverted in either precedent, that “the President’s removal power is the rule, not the exception,” id., and then declined to revisit these precedents or to “elevate [Humphrey’s Executor] into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority,” id. In other words, the Supreme Court neither constrained Humphrey’s Executor by expanding Myers beyond its holding nor endorsed an expansion of Humphrey’s Executor itself. In short, Seila Law, on this matter, had frankly little to add.

19 Nor can Humphrey’s Executor be fairly described as an “exception[]” to the general rule of presidential removal authority. Contra Seila L., 591 U.S. at 198. As explained, a careful reading of the history and the scope of the dispute in Myers confirms that Humphrey’s Executor was not some exception to an otherwise absolute presidential removal power previously established in Myers. To the extent Myers extolled such an absolute presidential removal power in overbroad dicta, it was in short order rejected by a unanimous Supreme Court. Myers simply established that the President alone may exercise removal authority over principal officers, and Humphrey’s Executor explained that Congress can set standards, without conferring the exercise of that power to itself, to cabin the President’s singular exercise of that authority in the circumstances presented.

20 These two factors are often considered together. See, e.g., Ridgley v. Lew, 55 F. Supp. 3d 89, 98 (D.D.C. 2014); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *32 (D.D.C. Mar. 1, 2025).

21 Defendants argue that because President Trump could restore the NLRB’s quorum by appointing members to fill the vacant seats, the harm here is not irreparable. Defs.’ Opp’n at 14. While filling the open seats would halt the ongoing harm and prevent future harm, restoration of the NLRB’s quorum would not do anything to repair the past harm—the backlog of cases, the months employers and employees have spent waiting for adjudications, the practical ramifications felt across the country (from workers’ rights violations to workplace unrest) of labor disputes left unresolved, delayed union recognition, and so forth. The possibility that the NLRB could once again operate may be one difference between this case and the situation of the Civil Rights Commission in Berry, where the Commission was set to expire before it could fulfill its statutory mandate, see 1983 WL 538, at *5, but that possibility does not make the harm here somehow reparable. The NLRB’s statutory mandate is not to—at some point in time—operate, contrary to defendants’ suggestion, Defs.’ Opp’n at 14-15, but rather to have an ongoing, efficient administration of the country’s labor laws.

22 Defendants’ arguments that plaintiff may not be “reinstated” or “reappointed” because reinstatement was not a remedy originally available at equity are not only inconsequential because relief need not be fashioned in that form, as described above, but they are also flawed. Defendants’ argument ultimately boils down to a technical distinction: Historically, requests for reinstatement were styled as writs of mandamus or quo warranto before courts of law instead of requests for injunctions before courts of equity, as defendants’ cited cases reflect. Defs.’ Opp’n at 12; Twenty States’ Amicus Br. at 3; see In re Sawyer, 124 U.S. 200, 212 (1888) (noting that while a court of equity does not have “jurisdiction over the appointment and removal of public officers, . . . the courts of law, . . . either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto” do); White v. Berry, 171 U.S. 366, 377 (1898) (same). After the merger of law and equity in the federal courts over eighty years ago, however, that distinction makes no difference and does not render improper the injunctive relief plaintiff requests.

Unsurprisingly, many courts have, therefore, reinstated federal employees to their positions or prevented their removals from taking effect. See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 546 (1959) (“[P]etitioner is entitled to the reinstatement which he seeks.”); Pelicone v. Hodges, 320 F.2d 754, 757 (D.C. Cir. 1963) (holding that plaintiff was “entitled to reinstatement”); Paroczay v. Hodges, 219 F. Supp. 89, 94 (D.D.C. 1963) (holding that, because plaintiff “was never legally separated,” the court “will therefore order plaintiff’s reinstatement”); Berry, 1983 WL 538, at *6 (enjoining removal of members of the U.S. Commission on Civil Rights); cf. Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974) (acknowledging that “[u]se of the court’s injunctive power” may be appropriate in certain cases regarding discharge of employees). The other cases cited by defendants for the principle that reinstatement is not available as equitable relief, Defs.’ Opp’n at 12, involve the unique situation of federal courts presiding over questions about state officers’ entitlement to their positions, which is wholly inapplicable here. See Baker v. Carr, 369 U.S. 186, 231 (1962) (citing cases about “enjoin[ing] a state proceeding to remove a public officer”); Walton v. House of Representatives of Okla., 265 U.S. 487, 489-90 (1924) (holding that the district court did not have “jurisdiction over the appointment and removal of state officers”); Harkrader v. Wadley, 172 U.S. 148, 165-70 (1898) (declining to enjoin a state criminal proceeding); see also Twenty States’ Amicus Br. at 16-17 (making the inapposite argument that imposing a remedy of reinstatement of state officers invades state sovereignty).

In any case, the D.C. Circuit has “note[d] that a request for an injunction based on the general federal question statute is essentially a request for a writ of mandamus in this context, where the injunction is sought to compel federal officials to perform a statutorily required ministerial duty.” Swan, 100 F.3d at 976 n.1. Indeed, plaintiff made a last-minute request in her Notice of Supplemental Authority, ECF No. 33 at 4, for a writ of mandamus in the alternative. A writ of mandamus requires that “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.” Id. at 4 n.1 (alteration accepted) (quoting In re Nat’l Nurses United, 47 F.4th 746, 752 n.4 (D.C. Cir. 2022) (citation omitted)). Accordingly, if injunctive relief were not available here because of adherence to the historical dividing lines of law and equity, a writ of mandamus would likely be available, and the effective relief provided to plaintiff would be the same. See Harris, 2025 WL 679303, at *11.

23 As plaintiff’s supporting state amici point out, a less partisan Board, insulated from at-will removal, is less likely to whipsaw the public by taking completely disparate approaches every four years, which has concomitant public benefits in greater stability and predictability in administration of the law. See Nineteen States & D.C. Br. at 9 n.21.

24 Motions H’rg (Mar. 5, 2025), Rough Tr. at 43:9 (plaintiff’s counsel highlighting the constitutional role of other branches in checking President’s authority).

[admin]

Cite as: 604 U. S. ____ (2025)

SUPREME COURT OF THE UNITED STATES

No. 24A831

DEPARTMENT OF STATE, ET AL. v. AIDS VACCINE ADVOCACY COALITION, ET AL.

ON APPLICATION TO VACATE THE ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[March 5, 2025]

On February 13, the United States District Court for the District of Columbia entered a temporary restraining order enjoining the Government from enforcing directives pausing disbursements of foreign development assistance funds. The present application does not challenge the Government’s obligation to follow that order. On February 25, the District Court ordered the Government to issue payments for a portion of the paused disbursements—those owed for work already completed before the issuance of the District Court’s temporary restraining order—by 11:59 p.m. on February 26. Several hours before that deadline, the Government filed this application to vacate the District Court’s February 25 order and requested an immediate administrative stay. THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines. The order heretofore entered by THE CHIEF JUSTICE is vacated.

*****

ALITO, J., dissenting

JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.

Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic "No," but a majority of this Court apparently thinks otherwise. I am stunned.

I

In capsule form, this is what happened. Respondents are a group of American businesses and nonprofits that receive foreign-assistance funds from the State Department and the U.S. Agency for International Development. They brought suit and claimed that the current administration’s temporary pause of foreign-assistance payments is unlawful. On February 13, 2025, the District Court issued a temporary restraining order (TRO) requiring the Government to halt its funding pause. It based that decision on a finding that respondents are likely to succeed in showing that the Government violated the Administrative Procedure Act (APA). After issuing the TRO, the District Judge grew frustrated with the pace at which funds were being disbursed, and on February 25, he issued a second order requiring the Government to pay out approximately $2 billion. The judge brushed aside the Government’s argument that sovereign immunity barred this enforcement order, and he took two steps that, unless corrected, would prevent any higher court from reviewing and possibly stopping the payments. First, he labeled the order as a non-appealable TRO, and second, he demanded that the money be paid within 36 hours.

This left the Government little time to try to obtain some review of what it regarded as a lawless order. The Government moved for a stay pending appeal in the District Court. But the judge shrugged off the Government’s sovereign immunity argument and ignored the Government’s representation that most of the money in question, once disbursed, could probably not be recovered. See App. to Application to Vacate Order 93a.

The Government quickly filed an appeal in the United States Court of Appeals for the District of Columbia. But, with only four hours to spare before the payment deadline, the D.C. Circuit dismissed the Government’s appeal because it took the District Court’s "TRO" label at face value and determined it lacked appellate jurisdiction.

With nowhere else to turn and the deadline fast approaching, the Government asked this Court to intervene. At the last moment, THE CHIEF JUSTICE issued an administrative stay. Unfortunately, a majority has now undone that stay. As a result, the Government must apparently pay the $2 billion posthaste—not because the law requires it, but simply because a District Judge so ordered. [!!! ] As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility.

II

Time does not allow a lengthy discussion of the legal issues presented by this case, but a brief summary suffices to show that the District Court’s order should be vacated or, at the very least, stayed.

To start, it is clear that the District Court’s enforcement order should be construed as an appealable preliminary injunction, not a mere TRO. A TRO, as its name suggests, is "temporary," and its proper role is to "restrain" challenged conduct for a short time while the court considers whether more lasting relief is warranted. See 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3922.1 (3d ed. 2012). The order here, which commanded the payment of a vast sum that in all likelihood can never be fully recovered, is in no sense "temporary." Nor did the order merely "restrain" the Government’s challenged action in order to "preserve the status quo." Northeast Ohio Coalition for Homeless and Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F. 3d 999, 1006 (CA6 2006). Rather, it "act[s] as a mandatory injunction requiring affirmative action" by the Government. Ibid. And given its likely irreversibility, the District Court’s enforcement order effectively gave respondents a portion of the ultimate relief they seek.

For these reasons, the Court of Appeals had jurisdiction to consider the Government’s appeal, and we have jurisdiction to review and summarily vacate that court’s erroneous judgment.

III

Even if the majority is unwilling to vacate the District Court’s order, it should at least stay the District Court’s enforcement order until the Government is able to petition for a writ of certiorari. In considering whether to issue such a stay, we ask, at a minimum, (1) whether the moving party is likely to prevail on the merits and (2) whether that moving party is likely to suffer irreparable harm.* See Nken v. Holder, 556 U. S. 418, 425 (2009); Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 327 (1999). In "close cases," we also take into account other equitable considerations. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Here, these factors weigh in favor of a stay.

FN: *To the extent that likelihood of certiorari is a relevant factor, John Does 1–3 v. Mills, 595 U. S ___, ___ (2021) (BARRETT, J., concurring in the denial of application for injunctive relief) (slip op., at 1), it is met here. Recent years have seen a sharp increase in district-court orders enjoining important Government initiatives, and some of these have been labeled as unappealable TROs. See Dellinger v. Bessent, 2025 WL 559669 (CADC, Feb. 15, 2025); id., at *10–*17 (Katsas, J., dissenting). Clarification of the standards for distinguishing between a TRO and a preliminary injunction is a matter that deserves this Court’s attention at the present time. The same is true regarding the scope of the APA’s waiver of sovereign immunity. End FN

Likelihood of success. The Government has shown a likelihood of success on the merits of its argument that sovereign immunity deprived the District Court of jurisdiction to enter its enforcement order.

Sovereign immunity bars "a suit by private parties seeking to impose a liability which must be paid from public funds in the . . . treasury." Edelman v. Jordan, 415 U. S. 651, 663 (1974). But that is exactly what the District Court ordered here. See App. to Application to Vacate Order 85a–86a ("[T]he restrained defendants shall pay all invoices and letter of credit drawdown requests on all contracts for work completed prior to the entry of the Court’s TRO on February13").

Sovereign immunity may be waived, but "[t]o sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims." Lane v. Peña, 518 U. S. 187, 192 (1996). Attempting to satisfy this strict requirement, respondents point to the APA’s waiver of sovereign immunity for certain actions "seeking relief other than money damages." 5 U. S. C. §702. That language, as we have explained, distinguishes "between specific relief," which is permitted under the APA, and "compensatory, or substitute, relief," which is not. Department of Army v. Blue Fox, Inc., 525 U. S. 255, 261 (1999). But the relief here more closely resembles a compensatory money judgment rather than an order for specific relief that might have been available in equity. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 210–211 (2002) ("[A]n injunction to compel the payment of money past due under a contract, or specific performance of a past due monetary obligation, was not typically available in equity"). Sovereign immunity thus appears to bar the sort of compensatory relief that the District Court ordered here.

Hoping to escape that conclusion, respondents point to Bowen v. Massachusetts, 487 U. S. 879 (1988). In that case, we held that the APA’s waiver of sovereign immunity covered a District Court’s judgment reversing a final order of the Secretary of Health and Human Services refusing to reimburse Massachusetts for certain Medicaid expenditures. Unlike the District Court’s order here, that "judgment did not purport to . . . order that any payment be made" by the United States. Id., at 888. Rather, Bowen simply recognized a basic reality of APA review: after a court sets aside an agency action, a natural consequence may be the release of funds to the plaintiff down the road. Indeed, we have since clarified that "Bowen has no bearing on the unavailability of an injunction to enforce a contractual obligation to pay money past due"—the sort of relief that appears to have been ordered here. Knudson, 534 U. S., at 212.

The District Court, however, failed to mention (much less reckon with) Bowen or Knudson before plowing ahead with its $2 billion order. Nor did it take account of our previous suggestion that the proper remedy for an agency’s recalcitrant failure to pay out may be to "seek specific sums already calculated" and "past due" in the Court of Federal Claims. Maine Community Health Options v. United States, 590 U. S. 296, 327 (2020); Bowen, 487 U. S., at 890, n. 13 (invoking the First Circuit’s suggestion that if an agency "‘persist[s] in withholding reimbursement for reasons inconsistent with our decision’" under the APA, the "‘remedy would be a suit for money past due under the Tucker Act in the Claims Court’"). The most that can be said is that in the District Court’s denial of the Government’s motion for a stay pending appeal, it cited but did not analyze a handful of cases echoing Bowen’s discussion of the APA’s conscribed waiver of sovereign immunity. One might expect more care from a federal court before it so blithely discards "sovereign dignity." Alden v. Maine, 527 U. S. 706, 715 (1999).

Finally, the Government has a stronger argument that the District Court’s order violates the principle that a federal court may not issue an equitable remedy that is "more burdensome to the defendant than necessary to" redress the plaintiff ’s injuries. Califano v. Yamasaki, 442 U. S. 682, 702 (1979). In this case, the District Court’s enforcement order functions as a "universal injunction def[ying] these foundational" limits on equitable jurisdiction. Labrador v. Poe, 601 U. S. ___, ___ (2024) (GORSUCH, J., concurring in grant of stay) (slip op., at 5). The District Court ordered the Government to "pay all invoices and letter of credit draw-down requests on all contracts" for pre-TRO work completed. App. to Application to Vacate Order 86a. That order encompasses more than just respondents, and the District Court offered no reason why universal relief to nonparties is appropriate here. And this is not the sort of case in which only universal relief is feasible. Even supposing the APA allows universal vacatur of rules in some circumstances, the District Court’s order of direct monetary payment bears no resemblance to that. Cf. Griffin v. HM Florida-Orl, LLC, 601 U. S. ___, ___, n. 1 (2023) (KAVANAUGH, J., respecting denial of application for stay) (slip op., at 3, n. 1.). And nobody has suggested that the Government is unable to identify respondents’ allegedly owed funds and pay out only to them. Limiting the scope of relief in that manner would be significant. Below, the Government represented respondents seek roughly $250 million—still a large figure, but a fraction of the $2 billion ordered. Emergency Motion for Immediate Administrative Stay and for Stay Pending Appeal in No. 25-5046 etc. (CADC), p. 9.

Harm to the parties and others. The Government has shown that it is likely to suffer irreparable harm if the District Court’s order is not stayed. The Government has represented that it would probably be unable to recover much of the money after it is paid because it would be quickly spent by the recipients or disbursed to third parties. Respondents did not credibly dispute this representation, and the District Court did not find that it is incorrect.
 
We usually "balance the equities and weigh the relative harms" in "close cases." Hollingsworth, 558 U. S., at 190. For the reasons I have explained, this is not such a case, and our analysis could end there. Nevertheless, respondents’ equitable arguments are insufficient to justify the denial of a stay. They contend that the failure to pay the money in question would cause them irreparable harm because without those funds, they could not continue to operate or would have to reduce the work they do. As a result, they claim, recipients of their services would suffer. These potential consequences are, of course, serious. But any harm resulting from the failure to pay amounts that the law requires would have been diminished, if not eliminated, if the Court of Appeals had promptly decided the merits of the Government’s appeal, which it should not have dismissed. If we sent this case back to the Court of Appeals, it could still render a prompt decision. If it decided in favor of respondents, the Government would be obligated to pay all the money that is due, and respondents would have suffered only a short delay in the receipt of payments. And if the Government prevailed on its sovereign-immunity argument, neither respondents nor any of the recipients of their services would have suffered any unlawful consequences.[!!!]

In sum, the factors we consider in deciding whether to issue a stay weigh strongly in favor of granting that relief.

* * *

Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers. The District Court has made plain its frustration with the Government, and respondents raise serious concerns about nonpayment for completed work. But the relief ordered is, quite simply, too extreme a response. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them. I would chart a different path than the Court does today, so I must respectfully dissent.

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Trump confirms retribution campaign against law firms that clash with his agenda: The president says his administration is ‘going after’ law firms he claims are ‘dishonest’ and ‘bad for the country’
by Alex Woodward
UKIndependent
Sunday 09 March 2025 21:11 GMT
https://www.independent.co.uk/news/worl ... 11843.html

Donald Trump is punishing law firms that have represented what he perceives as his political enemies by stripping their security clearances and access to government buildings, delivering severe legal retribution against people he believes are threatening his agenda.

“We have a lot of law firms that we’re going to be going after, because they were very dishonest people,” the president told Fox News host Maria Bartiromo in an interview that aired on Sunday Morning Features on Sunday.

“They were very, very dishonest. I could go point after point after point. And it was so bad for our country. And we have a lot of law firms we’re going after,” Trump said.

SundayMorningFutures@SundayFutures

Today exclusively on @SundayFutures with @MariaBartiromo, President Trump @POTUS @realDonaldTrump spoke about expanding space exploration and the future of the Department of Education.
@FoxNews
9:36 AM · Mar 9, 2025

The interview aired days after he signed another executive order targeting a prominent law firm, which opponents fear is designed to cast a chilling effect that threatens representation for groups and individuals who are challenging the administration’s agenda in court.

Last month, Trump signed a similar measure attacking the firm Covington & Burling, which provided pro bono assistance to special counsel Jack Smith in his personal capacity as he handled federal criminal investigations into the president’s alleged election interference and unlawful retention of classified documents.

This time, the president went further by blocking lawyers with the firm Perkins Coie from federal buildings entirely and barring federal agencies and contractors from working with it.

His apparent beef with Perkins Coie dates back to a federal investigation into connections between Trump’s 2016 campaign and Russian agents to determine whether aides and officials had conspired to influence the outcome of that election. The firm represented Hillary Clinton’s campaign and the Democratic National Committee and worked with a research firm that produced the now-discredited dossier that alleged contacts between Trump and Russia.

Perkins Coie contracted Fusion GPS to conduct opposition research, which Fusion enlisted former British spy Christopher Steele to perform. Steele’s dossier, which was later turned over to the FBI, alleged Russia’s years-long campaign to compile compromising information against then-candidate Trump.

Now-former Perkins lawyers Marc Elias and Michael Sussman were both named in Trump’s order. Neither have worked for the firm in years. Since 2020, Elias has led the voting rights and civil rights litigation-tracking platform Democracy Docket, which has tracked hundreds of Trump-related cases.


Donald Trump has signed executive orders stripping two high-profile law firms of security clearances after their work with his opponents (EPA)

“This is an absolute honor to sign,” Trump said during a signing ceremony at the White House on Thursday. “What they’ve done is just terrible. It’s weaponization, you could say weaponization against a political opponent, and it should never be allowed to happen again.”

A spokesperson for the firm called the order “patently unlawful” and said it intends to challenge it.

Last month, Trump signed a similar measure suspending security clearances for outside lawyers who supported Smith in his personal capacity.

The memo suspends “any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel.”

During a signing ceremony, Trump called the memo the “deranged Jack Smith signing.”

Trump’s targeting of lawyers follows his administration’s threats to members of the judiciary, with Elon Musk and Republican members of Congress repeatedly threatening to impeach or punish judges who issue decisions that brush against their agenda, which judges across the country and ideological spectrum are condemning as unconstitutional, discriminatory and illegal.

After a string of legal blows against his orders and policy maneuvers, Trump issued an executive order this week that calls on agency and department heads to press for monetary “security” payments from plaintiffs if an injunction against the administration is issued.

That would mean plaintiffs – which have included civil rights groups, pregnant immigrants, trans teenagers and aid workers — would be required to pay the government’s legal fees, upfront, if a judge issues an injunction.

The American Bar Association has warned against the “escalating governmental efforts to interfere with fair and impartial courts, the right to counsel and due process, and the freedoms of speech and association in our country.”

“We reject the notion that the government can punish lawyers who represent certain clients or punish judges who rule certain ways,” American Bar Association president Wiliam R. Bay said in a statement this week. “We cannot accept government actions that seek to tip the scales of justice in this manner.”

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Georgetown law dean rebuffs DEI warning from top federal prosecutor for DC
by Michael Kunzelman
AP
Updated 5:51 PM MDT, March 6, 2025
https://apnews.com/article/trump-dei-ge ... ca6967fe9d


Ed Martin speaks at an event at the Capitol in Washington, June 13, 2023. (AP Photo/Amanda Andrade-Rhoades, File)

WASHINGTON (AP) — Georgetown Law School’s dean on Thursday rebuffed an unusual warning from the top federal prosecutor for Washington, D.C., that his office won’t hire the private school’s students if it doesn’t eliminate diversity, equity and inclusion programs.

Dean William Treanor told acting U.S. Attorney Ed Martin that the First Amendment prohibits the government from dictating what Georgetown’s faculty teach or how to teach it.

“Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution,” Treanor wrote in a letter addressed to Martin.

Martin’s exchange with the dean isn’t the first time that the conservative activist has used his office as a platform for parroting the political priorities of the Republican president who gave him the job in January.

Martin, who refers to himself as one of President Donald Trump’s attorneys, roiled his office by firing and demoting attorneys who prosecuted Trump supporters for storming the U.S. Capitol on Jan. 6, 2021. Martin promoted Trump’s baseless claims of election fraud in the 2020 presidential election and represented Jan. 6 riot defendants before taking office.

His “letter of inquiry” to Georgetown also dovetails with Trump’s agenda. On his first day back in the White House, Trump signed an executive order ending DEI programs in the federal government.

In a letter dated Feb. 17 but emailed to the dean on March 3, Martin said a whistleblower informed him that Georgetown Law School “continues to promote and teach DEI.”

“This is unacceptable,” he wrote.

Martin warned the dean that his office wouldn’t consider any Georgetown law students for jobs, summer internships or fellowships until his “letter of inquiry” about DEI programs is resolved.

Treanor said Georgetown was “founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding.”

“Your letter challenges Georgetown’s ability to define our mission as an educational institution,” he wrote.

Treanor closed the letter by writing, “We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.”

Also on Thursday, Democratic members of the Senate Judiciary Committee asked the Office of Disciplinary Counsel in Washington to investigate their “grave concern” that Martin may have engaged in professional misconduct since taking office. In a letter to the office, the senators accused Martin of repeatedly abusing his position, including by “using the threat of prosecution to intimidate government employees and chill the speech of private citizens.”

“Mr. Martin’s conduct not only speaks to his fitness as a lawyer; his activities are part of a broader course of conduct by President Trump and his allies to undermine the traditional independence of Department of Justice investigations and prosecutions and the rule of law,” the senators wrote.

A spokesperson for Martin’s office wouldn’t comment on the Georgetown letters and didn’t respond to a separate request for comment on the senators’ letter.

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Trump US Attorney for DC Abuses His Power by Telling Georgetown Law, Teaching DEI is "Unacceptable"
by Glenn Kirschner
Mar 7, 2025 All the "King's" Men: Trump's lackeys and their disservice to America

In a breathtaking display of abuse of power, abuse of office, and prosecutorial misconduct, interim US Attorney for the District of Columbia, Ed Martin, wrote a letter to the Dean of Georgetown University School of Law saying, " It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This Is unacceptable. I have begun an inquiry into this . . ."

Martin went on to threaten that "no applicant for (a position at the DC US Attorney's Office) . . . "will be considered" if the school continues "to teach and utilize DEI."

This video discusses the possible options Georgetown Law School has in acting on this letter, which represents conduct that plainly is beyond the scope of the official governmental duties of a federal prosecutor.



Transcript

so friends in a truly breathtaking Abuse
of power and Abuse of office the US
attorney for the District of Colombia
just told Georgetown University School
of Law that it can't teach
Dei and that if it continues to do so
its students will be banned from being
considered for internships or employment
at the DC us attorney's
office as I say friends this is a
breathtaking abuse of
prosecutorial
power let's talk about that because
Justice matters
[Music]
hey all Glen Kirschner here so friends my
goodness this guy Ed Martin the interum
United States Attorney for the District
of Columbia just did something that
represents what might be the most
egregious abuse of prosecutorial power I
ever saw in my 30 years as a
prosecutor let's start with this
headline in reason magazine us attorney
threatens Georgetown law for teaching
Dei and let's just go right to the
letter that intram us attorney Ed Martin
wrote to the dean of Georgetown law
William trainer Dear Sir as United
States Attorney for the District of
Columbia I receive requests for
information and clarification I take
these requests seriously and act on them
with letters like this one you are
receiving it has come to my attention
reliably that Georgetown law school
continues to teach and promote
Dei this is
unacceptable can I just pause there you
know what sport what is or is not
acceptable for institutions of Higher
Learning colleges universities law
schools to teach is none of your damn
business
as us attorney as the top prosecutor in
DC you get to investigate crime if crime
has been committed and prosecute crime
you don't get to decide what is or is
not acceptable for a law school to
teach my addition to Ed Martin's letter
the letter
continues I have begun an inquiry in
other words I'm going to use the powers
of the US attorney's office to
investigate
you I have begun an inquiry into this
and would welcome your response to the
following questions first have you
eliminated all Dei from your school and
its curriculum second if Dei is found in
your courses or teaching in any way will
you move swiftly to remove it and now
friends the letter gets even worse
because he threat threatens to punish
Georgetown law
students at this time you should know
that no applicant for our fellows
program our summer internship or
employment in our office who is a
student or affiliated with a law school
or university that continues to teach
and utilize Dei will be
considered I look forward to your
cooperation with my letter of inquiry
after request thank you in advance for
your assistance please respond by Monday
February 24 2025 should you have any
further questions regarding this matter
please do not hesitate to call my office
or schedule a time to meet in person all
the
best sincerely Ed
Martin this friends is abuse of power
abuse of office and
prosecutorial misconduct so what can be
done about it we're going to get to that
in a minute first let's look at the
reply
from the dean of Georgetown law William
trainer this headline from the AP
Georgetown law Dean rebuffs Dei warning
from top federal prosecutor for
DC and that article begins Georgetown
law schools Dean on Thursday rebuffed an
unusual warning from the top federal
prosecutor for Washington DC that his
office won't hire the private schools
students if it doesn't eliminate
diversity equity and inclusion programs
Dean William trainer told acting us
attorney Ed Martin that the First
Amendment prohibits the government from
dictating what georgetown's faculty
teach or how to teach it quote given the
first amendment's protection of a
University's freedom to determine its
own curriculum and how to deliver it the
Constitutional violation behind this
threat is clear as is the attack on the
University's Mission as a Jesuit and
Catholic institution trainer wrote in a
letter addressed to William Treanor, said
Georgetown was founded on the principle
that serious and sustained discourse
among people of different faiths
cultures and beliefs promotes
intellectual ethical and spiritual
understanding your letter challenges
georgetown's ability to Define our
mission as an educational institution
he wrote William Treanor, closed the letter by
writing we look forward to your
confirming that any Georgtown
Affiliated candidates for employment
with your office will receive full and
fair
consideration so friends the question
becomes what can be done by Georgetown
law about these
unconstitutional threats in violation of
the University's First Amendment rights
to teach what and how it chooses to
teach what can be done about Ed Martin's
abuse of power abuse of office and
prosecutorial
misconduct so it's not easy to sue to
bring a civil suit against a government
official or employee and let me argue
for a minute or two why I think that is
generally a good thing let's assume that
I'm an IRS agent
and I'm looking at people's tax returns
and I decide that somebody took a
deduction they weren't entitled to take
and so I go about you know in my
responsibilities as an IRS auditor or
reviewer telling the taxpayer look this
is not a valid deduction so you can't
take it and you have to pay more in
taxes if that American taxpayer could
file a lawsuit against me drag me into
court make me expend all kinds of funds
defending myself for a decision I made
that was squarely within the scope of my
official governmental duties that would
be a bad thing because then every
grieved taxpayer or every grieved
American who didn't like something that
a government employee or official did
could forever be dragging government
officials and employees into court so
the law has developed this protection
for government employees and officials
called qualified immunity I argue it
makes some sense qualified immunity
provides some protection for government
officers employees officials that if
you're acting within the scope of your
official governmental duties you're
doing the right thing you're doing what
you were hired to do on behalf of the
American people you can't be sued you
can't be dragged into court you can't be
made to hire attorney and expend all
kinds of uh fun
to try to defend against a suit that was
brought because you were just doing your
job your official governmental duties
however you probably know where I'm
going
friends if you do something as a
government employee officer or official
that is not within the scope of your
official duties that is outside the
authority the power of one's
prosecutorial duties like threatening a
university that we're going to
investigate you if you teach something I
don't like DEI and we're going to ban
all Georgetown law students from even
being considered for employment in an
agency of the federal government if you
keep teaching something that I don't
want you to be
teaching I mean Beyond a Saturday Night
Live skit there right well guess what
that should not enjoy qualified immunity
from being sued personally personally
because you're acting Beyond outside the
scope of your official governmental
duties so I can only anticipate that
Georgetown law which probably has a heck
of a lot of lawyers who are either on
the faculty on their legal staff and
goodness knows Georgetown law has
produced a whole lot of really
accomplished lawyers who are looking at
the prospects of bringing a civil suit
for this horrifically abusive act by a
government
official and the only way to deal with
this kind of rampant governmental abuse
is to get it into court right now early
and often and let judges put eyeballs on
that letter that Ed Martin wrote man I
have got to believe qualified immunity
will fall so fast that'll make Ed
Martin's head spin and he will run the
risk of being held personally liable
that means he would have to personally
pay out any judgment that was entered
against him for what he did abusing his
position his power his authority and
engaging in this kind of prosecutorial
misconduct
and any government official Ed Martin or
any other government official who abuses
their power and position in this way
should be held personally accountable
that's not why we hire people to work in
the federal government to abuse their
office to act outside the scope of their
official governmental duties so they
should be held accountable for these
kind of
egregious transgressions
because
Justice
matters friends as always please stay
safe please stay tuned and I look
forward to talking with you all again
tomorrow
[Music]

[admin]

Republicans terrified of crossing Trump due to physical threats, Democrat says: Eric Swalwell says threats to them and their families are stopping GOP officials from criticizing president
by Robert Tait in Washington
The Guardian
Thu 27 Feb 2025 06.00 EST
https://www.theguardian.com/us-news/202 ... mp-threats

Republicans on Capitol Hill are shying away from criticizing Donald Trump’s policies over fears for their physical safety and that of their families, a Democratic member of Congress has said.

Eric Swalwell, a Democratic representative from California, said his Republican colleagues were “terrified” of crossing Trump not only because of the negative impact on their political careers, but also from anxiety that it might provoke physical threats that could cause personal upheaval and require them to hire round-the-clock security as protection.

Swalwell’s comments came in a webinar chaired by the journalist Sidney Blumenthal in response to a question on whether Republicans might be driven to rebel against or even impeach Trump.

“I have a lot of friends who are Republicans,” he said. “They are terrified of being the tallest poppy in the field, and it’s not as simple as being afraid of being primaried and losing their job. They know that that can happen.

“It’s more more personal. It’s their personal safety that they’re afraid of, and they have spouses and family members saying, ‘Do not do this, it’s not worth it, it will change our lives forever. We will have to hire around-the-clock security.’ Life can be very uncomfortable for your children.

“That is real, because when [Elon] Musk [Trump’s most powerful ally] tweets at somebody, or Trump tweets at somebody, or calls somebody out, their lives are turned upside down.

“When he tweets at you, people make threats, and you have to take people at their word. And so that is a real thing that my colleagues struggle with.”

Swalwell warned that fear of Trump was likely to further weaken support for Ukraine among GOP House members following his recent attacks on the country’s president, Volodymyr Zelenskyy, and his public praise for the Russian leader, Vladimir Putin.

“I thought that the numbers that we’ve showed to be unified around Ukraine would hold, and it’s not holding,” he said.

Swalwell’s comments come at a time when some Republican members of Congress are encountering pressure from constituents to push back against the attacks on federal government workers by Musk’s “department of government efficiency” (Doge) unit, which critics say is usurping the powers of Congress.

Swalwell, a member of the House judiciary committee, said he had spent more than $1m on security in the past two and a half years, after arousing Trump’s enmity by serving as a manager in his second impeachment trial and by filing a lawsuit against him and his eldest son, Donald Jr, seeking damages for their role in inciting the 6 January attack on the US Capitol by a violent mob.

His portrayal of Trump-inspired intimidation was supported by Bradley Moss, a lawyer for the FBI Agents Association, which has filed a lawsuit to prevent the Trump administration from publicly naming agents and bureau employees who worked on the 6 January criminal investigation.

Moss recalled Trump publicly attacking his boss, Mark Zaid, a Washington lawyer who represented the whistleblower who disclosed details of a call Trump made to Ukraine’s president, Volodymyr Zelenskyy, in 2019 that eventually led to his first impeachment.

“Donald Trump literally held up a photo of my boss, called him out by name, said he was scum, was a liar, etc,” Moss said during the webinar. “Next day, I woke up to, like, 150 voicemails. Texts were flooded throughout my inbox. We were getting death threats like crazy, and there was actually at least one gentleman who went to prison for making threats against my boss.”

He added: “We publicly called him out during that impeachment, when he was threatening the whistleblower in public statements, saying you are putting this person’s life in jeopardy. He made clear he doesn’t care. He’ll say it’s not my fault if something happens to that person.

“He knows full well the intimidation factor he can bring through his bully pulpit.”

Most Republicans who voted to impeach Trump during his first presidency are no longer in Congress. Liz Cheney – who played a leading role in the House committee investigating the 6 January insurrection – lost her Wyoming seat after being defeated in a GOP primary by a Trump supporter.

Cheney told CNN that some of her Republican colleagues had voted against impeaching Trump because “they were afraid for their own security – afraid, in some instances, for their lives”.

Her comments were backed up by Mitt Romney, the former Republican senator and presidential candidate, who told his biographer, McKay Coppins, of a senior Senate colleague who intended to vote for Trump’s conviction at his Senate trial only to change course when a colleague told him: “Think of your personal safety. Think of your children.”

Musk, the billionaire Tesla and SpaceX entrepreneur, has threatened to use his vast wealth to fund primary challenges against any House or Senate Republicans who vote against Trump’s agenda or oppose his cabinet nominees.

The tactic appeared to be effective in the case of Joni Ernst, a Republican senator for Iowa, who reversed her initial opposition to Pete Hegseth’s nomination as defence secretary on the basis of sexual assault allegations that had been made against him after Musk funded adverts extolling a rightwing radio host who had vowed to challenge her in a primary.

Thom Tillis, a Republican senator for North Carolina, told people that he received FBI warnings of “credible death threats” when he was publicly considering voting against Hegseth, Vanity Fair reported. Tillis, who had spoken at length to witnesses who raised concerns about Hegseth’s behavior, ultimately voted in favor of his confirmation.

Vanity Fair cited an unnamed source as quoting Tillis advising people who wished to understand Trump to read Snakes in Suits: When Psychopaths Go to Work, a 2006 book by Paul Babiak and Robert Hare. A spokesperson for Tillis denied that he had recommended the book in that context.

[admin]

USAID employees ordered to shred records, court filing says
by Brendan Pierson
Reuters
March 11, 2025 4:55 PM MDT Updated 2 hours ago
https://www.reuters.com/world/us/usaid- ... 025-03-11/

Summary

• Unions claim shredding violates federal record-keeping law
• Plaintiffs seek restraining order to prevent record destruction
• Judge orders status report on motion by Wednesday morning

March 11 (Reuters) - An official at the U.S. Agency for International Development has ordered employees to shred a large volume of records, according to a court filing on Tuesday by government employee unions asking a judge to block the move.

In a motion filed in Washington, D.C., federal court, the unions cited an email from USAID's acting executive secretary Erica Carr instructing employees to come to the agency's office on Tuesday for "clearing classified safes and personnel documents."

"Shred as many documents first, and reserve the burn bags for when the shredder becomes unavailable or needs a break," Carr wrote in the email, which was included in the filing. The email did not give details about what documents were to be shredded.

The unions said the directive "suggests a rapid destruction of agency records on a large scale" that both violates federal record-keeping law and could destroy evidence in their case, which seeks to undo the dismantling of USAID under President Donald Trump.

The lawsuit was brought by the American Federation of Government Employees and American Foreign Service Association, which represent government employees, as well as by anti-poverty organization Oxfam America. They allege that Trump overstepped his authority in largely shuttering an independent agency established by Congress by firing or putting on leave its employees and cancelling its agreements with third-party partners.

The plaintiffs on Tuesday asked U.S. District Judge Carl Nichols for a temporary restraining order blocking the destruction of records. They said that if they eventually prevail in the case, the loss of vital personnel or other records could prevent USAID from resuming its operations.

In response to Tuesday's motion, the judge ordered both sides to submit a status report by Wednesday morning proposing a schedule for briefs on the motion and noting any disagreements between them.

The White House did not immediately respond to a request for comment.

Nichols, a Trump appointee, last month allowed the administration to go forward with its plan to put more than 2,000 USAID employees on leave. Under Trump, the foreign aid agency has scrapped more than 80% of its programs and fired much of its staff.

In a separate lawsuit brought by USAID contractors and grant recipients, a federal judge on Monday ruled that the Trump administration cannot refuse to spend foreign aid money appropriated by Congress, although the judge stopped short of restoring canceled contracts. In that case, the Trump administration has repeatedly resisted complying with court orders to release frozen funds.

Reporting by Brendan Pierson in New York; Editing by Leslie Adler, Nia Williams and Alexia Garamfalvi

[admin]

Federal Judge Compares Trump to the Tyrannical Queen of Hearts in Alice in Wonderland
by Glenn Kirschner
Mar 12, 2025

District of Columbia Federal District Judge Beryl Howell pulled no punches in a new ruling against Trump and his administration.

Trump issued an executive order punishing a law firm he doesn't like, prohibiting the firm's attorneys from interacting with federal agencies and even from entering federal buildings.

In ruling against Trump and in favor of the law firm, Judge Howell said:

"This may be amusing in 'Alice in Wonderland' where the Queen of Hearts yells, 'Off with their heads!' at annoying subjects . . . and announces a sentence before a verdict, but this cannot be the reality we are living under."

Federal courts are not only ruling against Trump's unlawful and unconstitutional executive orders, but they are beginning to call out his obvious autocratic conduct.



Transcript

So friends let's start today with a
quote from a federal court judge
regarding Donald Trump's retaliation
against a law firm that he doesn't like
quote this may be amusing in allice in
Wonderland where the Queen of Hearts
yells Off With Their Heads at annoying
subjects and announces a sentence before
a verdict judge Howell said but this
cannot be the reality we are living
under close
quote let's talk about
that because Justice
[Music]
matters hey all Glenn Kirschner here so
friends because nothing is too Petty or
too vindictive for Donald Trump he just
tried to punish a law firm that he
doesn't like by prohibiting the firm's
attorneys from interacting with federal
agencies or even entering Federal
buildings well DC federal district court
judge Beryl Howell just called him out on
it
here's the new reporting from
Politico headline judge blocks key
provisions of Trump's bid to punish
Democratic linked law firm and that
article begins president Donald Trump's
retaliation against a prominent
Democratic linked Law Firm is likely
unconstitutional a federal judge ruled
Wednesday US District Judge Beryl Howell
blocked the Trump Administration from
enforcing Central provisions of an
executive order that seeks to punish the
law firm Perkins Coi by barring its
attorneys from interacting with federal
agencies or even entering Federal
buildings you know friends I swear
Donald Trump is like a a little discount
dictator right just pathetically
Petty my editorial addition the article
continues judge said the retaliatory
animus of Trump's order is clear on its
face and appears to violate
constitutional restrictions on Viewpoint
discrimination the executive order which
Trump issued last week quote runs head-on
into the wall of First Amendment
protections close quote the judge
concluded Perkins Coi which is based in
Seattle has often represented Democratic
politicians and causes including
Hillary Clinton's 2016 campaign Trump
has long targeted the firm as a
political and legal adversary for its
role in commissioning the anti-trump
dossier compiled by former British
intelligent agent Christopher Steele in
2016 that dossier whose salacious
allegations against Trump were never
confirmed by federal investigators
helped fuel the long-running probe of
his Trump's 2016 campaigns interactions
with
Russia the executive order if allowed to
take effect would hamstring the firm's
ability to represent clients who have
business with the federal government The
Firm claims the Trump's directive has
already LED clients to abandon the firm
and is likely to prompt Federal
officials to cancel or deny meetings on
a wide array of pending matters judge
Howell noted that the order would harm
not only the firm's 1200 lawyers most of
whom had nothing to do with the Russia
probe but its
2500 non-lawyer employees from IT staff
to
secretaries the judge said Trump's order
was also flawed because it was issued
without any notice to the firm or due
process to challenge his
determination quote this may be amusing
in Allison Wonderland where the the
Queen of Hearts yells Off With Their
Heads at annoying subjects and announces
a sentence before a verdict Howell said
but this cannot be the reality we are
living
under judge Howell's got a point and if
I can even put it a little less
discreetly this is some real
dictatorial Trump is
pulling you know friends we have a flood
of legal opinions coming in from federal
courts literally from coast to coast
ruling against Donald Trump's executive
orders his unlawful terminations his
refusal to pay contractors Who provided
services and goods to the federal
government and deserve to be paid we
have legal opinion after legal opinion
we have court finding after court
finding that Donald Trump's conduct his
executive orders are unlawful are
unconstitutional and you know to say
this is just executive branch
overreach does not capture what Trump
and Company are doing this is
autocracy this is Donald Trump you know
as aspiring dictator in the Oval Office
and I'll tell you the federal bench the
federal Judiciary that co-equal branch
of government is acting as a check
against an an aspiring autocrat an
aspiring dictator in the Oval Office so
friends I say let's keep these federal
court opinions coming and I suspect they
will keep coming because the Judiciary
understands it's vital role in
protecting our democracy its vital role
in addressing executive branch abuse
overreach lawlessness and
unconstitutionality is all important to
the health and I would say to the
viability of American democracy so let's
keep them coming and I suspect they will
keep coming because the court
understands that it may be the last
firewall the last buwwark standing up
against an aspiring dictator in the Oval
Office and as we see in court ruling
after court ruling after court ruling
the federal Judiciary clearly
understands that
Justice
matters friends as always please stay
safe please stay tuned and I look
forward to talking with you all again
tomorrow
[Music]

**************************

Judge temporarily blocks parts of Trump’s executive order seeking to punish law firm Perkins Coie
by Alanna Durkin Richer
Politico
Updated 6:23 PM MDT, March 12, 2025
https://apnews.com/article/trump-execut ... bc72be267e

WASHINGTON (AP) — A federal judge blocked President Donald Trump’s administration Wednesday from enforcing portions of an executive order designed to punish a prominent law firm linked to Democratic-funded opposition research during the 2016 presidential campaign into ties between the Republican candidate and Russia.

U.S. District Judge Beryl Howell in Washington granted a temporary restraining order sought by the firm, Perkins Coie, one day after it filed a federal lawsuit alleging it’s being illegally targeted because of its legal work. The judge said the president’s action sends a chilling message that lawyers can be punished for representing clients or advancing views unfavorable to the administration.

“Such a circumstance threatens the very foundation of our legal system,” said Howell, who was nominated to the bench by Democratic President Barack Obama. “Our justice system is based on the fundamental belief that justice works best when all parties have zealous advocates.”

Perkins Coie called the judge’s ruling “an important first step in ensuring this unconstitutional Executive Order is never enforced.”

“We will follow the court’s direction regarding next steps and will continue to challenge the Executive Order, which threatens our firm, our clients, and core constitutional protections important to all Americans,” a firm spokesperson said.

The order came during an extraordinary court hearing in which Attorney General Pam Bondi’s chief of staff, Chad Mizelle, defended the latest in a series of retributive moves targeting the president’s perceived adversaries. It’s highly unusual for such a high-ranking Justice Department official to argue on behalf of the government in the trial court.

Mizelle, who’s also serving as the acting associate attorney general, argued that the president has the clear authority to take action against entities he believes present a threat to national security.

“If that means excluding individuals that are no longer trustworthy with the nation’s secrets, that’s a bedrock principle of our republic,” Mizelle said.

Perkins Coie says it’s already suffering financial consequences of the order, which calls for limiting firm employees’ access to federal buildings and terminating any government contacts of its clients. The judge’s temporary restraining order doesn’t block the administration from enforcing another provision that seeks to strip Perkins Coie attorneys of security clearances.

Perkins Coie says all 15 of its top clients have government contracts, and several clients have already ended their legal arrangements with the firm or threatened to do so. Dane Butswinkas, an attorney representing Perkins Coie, said keeping the order in place will “spell the end of the law firm.”

“This executive order takes a wrecking ball to the rule of law, to the principles that promote democracy,” Butswinkas said.

Perkins Coie represented the 2016 presidential campaign of Democratic nominee Hillary Clinton, Trump’s opponent, and also represented Democrats in a variety of voting rights challenges during the 2020 election. The firm made headlines in 2017 when it was revealed to have hired a private investigative research firm during the 2016 campaign to conduct opposition research on Trump. That firm, Fusion GPS, subsequently retained a former British spy, Christopher Steele, who researched whether Trump and Russia had suspicious ties.

Trump had sued the law firm in 2022, along with Clinton, FBI officials and other defendants, as a part of a sprawling complaint alleging a massive conspiracy to concoct the Russia investigation that shadowed much of his administration. The suit was dismissed.