Brian Tyler Cohen
Feb 9, 2025 Democracy Watch with Marc Elias
Democracy Watch episode 257: Marc Elias discusses Trump losing an emergency case.
... ORDERS that, sufficient reason having been shown therefor, pending the hearing of the States’ application for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems, if any; and further
ORDERS that any opposition submission by defendants be filed by 5 p.m. on Tuesday, February 11, 2025; and that any reply by the States be filed by 5 p.m. on Thursday, February 13, 2025; and further
ORDERS that personal service of a copy of this order and the States’ above-described affidavit, memorandum of law, and Complaint, be filed upon the defendants or their counsel on or before February 8, 2025, by 12 noon; and that the States forthwith serve these materials by email on Government counsel Bradley Humphreys and Jeffrey Oestericher, whom the Court understands have independently been emailed the States’ filings; and further
ORDERS that plaintiffs post security in the amount of $10,000 prior to Friday, February 14, 2025, at 2 p.m.
-- STATE OF NEW YORK, et al., Plaintiffs, v. DONALD J. TRUMP IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, et al., Defendants. Case No. 25 Civ. 1144 (JAV). ORDER, by PAUL A. ENGELMAYER, District Judge:
Transcript
This is democracy watch. Marc, we have
major news on pretty much the biggest
story in the country right now which is
this idea that Elon musk's Doge
commission has access to all Americans
sensitive data, including Social Security
numbers. For example, a federal judge has
finally stepped in. Can you explain what
just happened?
[Marc Elias] This is a blockbuster
ruling from a federal judge in New York
City who was asked on an emergency
basis to block DOGE's access to these
very sensitive databases at the US
Treasury Department, not just to block
Elon Musk's access, right? In some of the
earlier cases we've talked about there
has been this kind of parsing about
whether Doge could still be in the
treasury Department, but it was read only,
and they couldn't write, or whether only
the special government employees could
have access to the information but not
others. What this judge did is said
nobody from Doge can have access to
these databases, only career civil
servants within the treasury Department
can have access to these databases,
and that any materials, or printouts,
or downloads of any information from
these databases, have to be destroyed by
anyone associated with those who may
have them. So this judge has really, at
this point, put a complete halt on the
exfiltration of data, the infiltration
with personnel, the embedding of
personnel into these databases that have
personally identified information like
people's Social Security numbers. This is
a big bold order from a very good
experienced federal judge in New York
City. It's only a temporary hold until
the case can be ultimately heard
on the merits and decided. That is true
about all these cases we're hearing
about. And no one should worry about that.
That's how the system works, right? First there's an emergency order,
and there's sort of a status quo put in
place. And then the case is decided
from there.
[Brian Tyler Cohen] Marc, this might be the cynic
in me coming out, but who is to say that
they're actually going to comply with
this order?
[Marc Elias] You sound
like the comments that we've gotten at
democracy docket when democracy
docket reported this. And you sound like
my Blue Sky feed of people who say great
Marc, but they're not going
to comply. And I understand the
skepticism, Brian, because Mr Big Balls, the one
guy, and I don't remember. Is he the one that's has sort of a Nazi
problem?
[Brian Tyler Cohen] When we can't remember
which one is big balls, and which one is
the guy who wants to normalize
Indian hate, I think that's when there's
a general culture problem. I think that's
a larger problem here .
[Marc Elias] Right, and of
course the vice president, with no other official duties
to do, decided to weigh in in favor of
rehiring the guy in favor of Indian hate.
[Brian Tyler Cohen] While he has to go home to his
indian-american wife and his three
indian-american kids. But I guess that's
the cost of
loyalty to Donald Trump.
[Marc Elias] Right. So
look, I understand the skepticism that
people have here, but what I can tell
you is that this federal judge, by
issuing this order as quickly as he did --
I mean, the state of New York and
the other states that brought this
lawsuit, brought it on Friday, and by early in the morning on
Saturday, this order was already in place.
And like I said, it is a very sweeping
order. You know, anyone who is caught
with those materials, or where there is
evidence that they did not destroy them,
will be subject to contempt of court,
which can be quite serious
and the lawyers associated with it,
they face problems if they don't
make sure that their clients and
the executive branch knows this.
Other employees in the Department of
Justice, or
in the treasury Department, could face
problems. But you know, this is in some sense
the most sweeping action we have seen
any judge take in any of the cases
against Donald Trump and the whole
dismantling of government since
he became president.
[Brian Tyler Cohen] so this was with
regard to treasury we have seen Doge um
gain access into the Department of Labor
Doge gain access into a a variety of
other organizations so is a ruling like
this going to apply to other agencies or
do we just have to wait for those
agencies to be harmed so that they have
standing to go in and do the same thing
but really by then we're just we're just
kind of chasing after Doge as opposed to
take any taking any um proactive action
against something that we all know that
they're going to do anyway so could this
could this apply to other agencies even
before Doge goes in or do we have to
wait for Doge to kind of wreak havoc
before we can do something about it look
I I think you've hit the nail on the
head so you know this order only applies
to treasury but it speaks to a larger
sort of norms and culture uh and
expectations problem that we have which
it it is good to see the judges are
coming around on like so to be clear
this is this is a big this this is a big
deal this case in that Journey but let
me explain it to you so normally when a
federal judge is has a lawsuit against
the United States against the president
of the United States against you know
cabinet officials you can understand why
they are typically skeptical of private
litigant coming in and saying we would
like you to shut down the way in which
the executive branch is operating in
some key faction and when the Department
of Justice lawyers show up in their
courtrooms and say look your honor we're
operating according to what the
president wants and what the Secretary
of Treasury wants and like this is all
about board courts are normally
predisposed to be like okay I've got the
Department of Justice they speak on
behalf of the you know the federal
government I've got cabinet officials
you know like in the normal course they
are not inclined to think the worst of
what is going on they they assume that
all things being equal it is probably
the private litigant who is on the wrong
side not the government who's on the
wrong side so what we have seen though
over the course of just the last seven
days is a real attitude shift right the
first lawsuits that were filed the
courts were entering orders that you and
I talked about that were being easily
evaded you know they were they it was
like a game of cat and mouse they would
issue an order and then the government
would say oh well we only assumed it
applied to these people and not those
people and then we started to see the
courts issue broader orders you know we
saw that order from a judge in
Washington DC about the OM memo who said
look I don't care if it's an OM memo I
don't care if it's a tweet from a press
secretary like it's it applies my order
prohibits you from defunding these
grants in any fashion that was the first
time we saw a federal judge really like
the aha moment went on that deference to
the federal government is not going to
work here right you need to do these
broader orders here we saw the judge do
it off the back and said I'm going to
apply this basically this order to
everyone other than career civil
servants if you are not a career civil
servant if you are part of Doge you know
hands off and you got to destroy it now
I understand this is we are still on the
journey that you are laying out you're
you're like when can this just be
prophylactic to the federal entire
federal government we're not there would
it surprise me if we start to get there
next week no it would because I think
these federal judges are getting tired
about two things number one they are
annoyed undoubtedly that they keep being
told that there that there is an
emergency that they have to rule on
immediately judges have schedules like
everybody else they don't like having to
set everything aside and they definitely
don't like having to set everything
aside when it turns out that the
government is consistently on the wrong
side right which is that the government
keeps losing these emergency hearings so
what's happening is the judges are
getting in their heads like I don't
understand this other judge told them to
cut it out and they're still doing it
and now it's interfering my docket and
so as this starts to snowball I think
you're going to start to get judges more
and more annoyed with these and start to
issue broader orders the second part
though Brian and this is what we have to
be on the lookout for are we starting to
see cracks in the lawyers in the
Department of Justice or in these
agencies you know I took note that in
one of the hearings uh late last week it
was actually a very senior supervisor
who argued the case
now that is highly unusual you don't
usually have senior lawyers in a
Department of Justice in a supervisory
role having to show up in court and I'm
starting to wonder not that it's a good
thing if you start to see resignations
not that it's a good thing if you start
to see the good people you know uh uh uh
leaving but I'm starting to see the
early signs of the willingness of some
government lawyers to fight these
absurdly illegal fights I'm starting to
see that crack and so I think a
combination of those two things may come
to a boiling point in the next you know
in the next five days next seven days
and I think you and I will then be doing
an episode to talk about where we go
from there because that would be
Uncharted Territory well Mark isn't it
true that for some of these lawyers who
don't want to put their own jobs on the
line I mean they they can be predisposed
to uh to sanctions or even losing their
law license if they're going to go in
because they've been you know thrown to
the Wolves by the Trump Administration
who frankly could care l if if some
disposable um lawyer loses his law
license because there's going to be a
line of other lawyers who are willing to
take their place but aren't aren't some
of these folks I guess deferring more to
the longevity of their own career than
than looking to do something illegal for
Trump I think that some of them are
doing that some of them are looking out
for the longevity of their career I
think some of them are also just
dispirited by it you know I mean you
know you could you could be a doj lawyer
for five years and argue cases regularly
and never lose you know let's be honest
like the doj usually wins their cases
because like I said I think their
success rate is something like 98 or 99%
and in fact we we we've spoken at length
about the fact that if anything the doj
is too timid to take on to take an
aggressive posture on some of these
cases because they are so predisposed to
only taking cases that they're
guaranteed to win and so when you have
you know Donald Trump engaging in in the
January 6 stuff or in the classified
document case it takes so long because
the natural predisposition is not to say
yeah let's just let's just you know go
for it even though it's it's it's not a
home run no that's exactly right and I
think that that you know a lot of the
criticisms we had about mer Garland and
and as you say in the January 6
prosecutions also in the voting Arena
you know the place that I litigate most
uh they were too timid uh for precisely
the reasons you say but I think that
that so part of it is I think these
lawyers looking out for the longevity of
their career but part of it is also they
are just shell shocked at the prospect
of continuously going to court and being
scolded I mean you know these these
lawyers are having a rough go of it in
front of these these these these judges
because the positions they are
advocating I mean you know in a
different case uh that you know involved
usaid you know you had you had a trump
appointed judge write an opinion that is
like you know there's a difference
between putting someone on leave in
Bethesda Maryland than putting them on
leave in Syria I mean that doesn't sound
like a big deal maybe to your audience
but that's a really biting and sharp
retort for a career uh doj lawyer or any
doj lawyer to hear from a federal judge
no less one appointed uh by the by the
by by Donald Trump uh so you know I I I
just I think we may get to the point
where where we get to an inflection
point where the courts become very very
irritated much more aggressive in the
scope of their orders and the Department
of Justice lawyers become just look
themselves in the mirror and like what
am I doing and and finally let's finish
off with this I I'm cautiously feeling
heartened about the prospect of the
Court actually doing what what you for
so long have said it would do which is
to to serve as an effective Bull workk
against the worst excesses of the Trump
Administration does it look like in fact
the court is able to stand up and and do
what for example republicans in Congress
won't do which is to to assert its
Authority retain its autonomy and and
and uphold the law so the answer is yes
with an as okay so you and I have talked
about this a lot and I've said you know
the trial courts in this country the
federal district courts in this country
are are as good as they have been in a
very long time Joe Biden appointed a lot
of Judges some of the Trump judges as
we've seen are not amused by these
Antics um even a Ronald Reagan appointee
in Washington state as you recall was
you know uh sort of read the riot act to
doj over Birthright citizenship right
then you get to the courts of appeals
right which we really haven't heard from
yet we haven't yet heard the DC circuit
or the second circuit or the first
circuit or the fifth circuit or any of
those we haven't heard them weigh in yet
right that'll be the next thing and I
and I kind of think they'll hold I think
that you know when you look at where
these cases have been filed they've been
filed in Washington DC the DC circuit's
pretty reasonable the ones in
Massachusetts go to the first circuit
that's a fairly um uh Progressive
circuit the second circuit New York more
mixed but but also very a very smart
circuit um so I kind of think things
will hold there but then the big wild
card is what does the Supreme Court do
at that point yeah you know and they
have kind of three choices Brian one is
they just say you know what not it like
you know what we don't have to hear
these cases the lower courts are flooded
with them the lower courts are sorting
them out they we don't we the Supreme
Court don't at least not on an emergency
basis have to get involved you know
maybe we'll hear a case for next term
you know in 20126 but we don't need to
do anything now right it's already
February our term ends in June we're
just going to let be that's option one
option two is they actually want to show
solidarity with the lower courts and
they actually just sarily affirm these
Lower Court decisions I I I'm not you
know I didn't fall off a turnup truck
that is that is that is not the most
likely outcome the third is that they
that a conservative majority of the
Supreme Court decides they want to dive
in that would be as that would be such a
terrible thing not just subsid on the
law but also for the Court's credibility
you know for the Chief Justice keeps
talking about you know there are no
Democratic judges and Republican judges
or justices and you know their ethics
are perfect and all of that there this
is working itself through the lower
courts just fine the Supreme Court
doesn't need to be in a hurry to jump
into these cases and that would be my
advice to them if they were ever ask my
advice which they're not um but that is
of course going to be the first test and
that will probably come in one of the
birthright citizenship cases just
because those are a little bit further
ahead but you know my advice to Chief
Jud is Rob Bert just tell his colleagues
no one no one needs to hear quickly from
the US Supreme Court in any of these
cases well I know that you have been
covering this relentlessly democracy
docket is where I get all of my news in
terms of what happens in the courts and
these Court decisions these Monumental
Court decisions being handed down so
highly recommend for anybody watching
not just to hear about this stuff as
soon as it breaks but also to support
Mark and his team which is um what we
should be doing right now please make
sure to sign up for democracy doet I'll
put the link right here on the screen
and also in the post description of this
video I'm Brian teller Cohen I'm Mark
Elias this is democracy watch.
