Your weekly reminder: It’s a coup.
February 8, 2025
It’s a coup. The sooner that congressional Democrats and the legacy media acknowledge that fact, the better we will be able to calibrate our response and mount an effective defense. Democrats in Congress are beginning to get the message, largely because they are being flooded with outraged calls from their constituents. See The New Republic, “Disgusted” Democratic Voters Are Blowing Up Congress’s Phones.
To everyone reading this: Keep it up! In fact, redouble your efforts. There is no such thing as contacting your congressional representatives too much!
As noted yesterday, Democrats are starting to fight back in every venue possible. On Friday, Democrats and citizens who value the rule of law continued to make gains in the courts—even though it is not clear that court orders are being honored by Trump and Musk.
Indeed, the facts suggest that DOJ lawyers are not being candid or forthcoming with federal judges—a practice also known as “lying.” Sooner or later, federal judges will figure out that they are being misled by officers of the court and then there will be hell to pay. But we are getting ahead of ourselves . . . .
On Friday, there was more (mostly) good news on the litigation front. Indeed, the DOJ seems to be strategically retreating so it can get its lies, er, I mean its “story” straight. Let’s take a look at the good news and then examine the evidence of backsliding by the administration.
Before looking at the news, let’s take a quick refresher on the Constitution and the immutable laws of the universe.
A refresher course on the Constitution and the Laws of the Universe
Congress makes the laws (“all legislative Powers . . . shall be vested in a Congress.”)
The president must “take Care that the Laws be faithfully executed.”
All appropriations must be authorized by Congress (No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law)
The president must “execute”—i.e., carry out—the appropriations made by Congress.
The Impoundment Control Act of 1974 prohibits the president from refusing to spend the money appropriated by Congress.
With the above firmly in mind, it is clear that Musk and Trump's “cutting” spending in various agencies violates Articles I and II of the Constitution, the Impoundment Control Act of 1974, and the founding principle of separation of powers.
The “cuts” that Musk and Trump are imposing through computer hacking relate to funds that Congress has already appropriated—and which must be “duly executed” by the president. If Musk and Trump want to effectuate future cuts to budgets, they must convince Congress to pass an appropriations bill that makes such cuts.
Congressional Republicans have sat on their hands as Musk and Trump have overridden Congress's Article I powers based on the vague excuse of “fraud,” which has never been specifically identified. Even if fraud exists, the remedy is not to override Congress’s role in the Constitution—it is to report the fraud to the DOJ for criminal prosecution and to Congress for remedial legislation.
Musk and Trump's unlawful actions go far beyond unauthorized “cuts” accomplished by computer hacking; they extend to the extinguishment of entire agencies and departments created and funded by Congress under the authority of Article I of the Constitution.
So, the “cuts” and “closures” are not merely “controversial,” or “disputed,” or “illegal.” They overthrow the constitutional order and separation of powers by claiming that the president exercises the authority granted to Congress in Article I of the Constitution.
That is a coup. There is no other word for it.
Trump, having seized Congress’s authority under Article I of the Constitution, the open question is whether Trump will also claim the authority of the courts under Article III of the Constitution by asserting the right to decide which court orders, if any, he will obey.
Although the above sounds ominous, I remain confident and optimistic about the eventual outcome of this constitutional test. Why? because of the fourth branch of the government: the people.
Trump and Musk will get away with their unconstitutional coup up to the point that a critical mass of the people take notice, rise up, and put a stop to the assault on the Constitution. Based on the posts in the Comment section to yesterday’s newsletter, achieving that critical mass may be closer than Trump and Musk believe.
And then there are the Second and Third Laws of the Universe: The “Law of You Broke It, You Own It,” and the “Law of Unintended Consequences.” [Yesterday, I referred to the First Law of the Universe: “It is easier to break things than to fix them.”]
Taken together, the laws of the universe lead to the inevitable outcome in which something bad and unexpected happens, at which point Trump and Musk get 100% of the blame, regardless of whether they had anything to do with the event.
We are already beginning to see that dynamic as MAGA supporters are complaining that the price of eggs continues to increase (because of avian flu that is decimating stocks of egg-laying chickens). See this (satiric) commentary in Real Clear Politics, Egg Prices Are Totally Donald Trump's Fault!
It is also in the nature of things that everything in the universe regresses to the mean. Extreme events are rare and anomalous. They happen but then recede into the center regions of the Bell Curve, where we live most of our lives.
I do not suggest adopting a “This too shall pass” attitude. But we should recognize that as we fight to defend the Constitution, the immutable laws of the universe, the rules of probability, and the limits of human tolerance are on our side. We have every reason to be confident that we will prevail over the anti-democratic coup that is unfolding before our eyes. Let’s act like it! Act boldly and without fear!
Developments on Friday
The winning streak of coup opponents continued on Friday, with one exception. In the most significant victory, a federal judge prevented the administration from placing 2,200 USAID workers on paid leave. See press release from Democracy Forward, Breaking: Federal Judge Pauses Parts of USAID Shutdown in Response to Lawsuit.
Democracy Forward partnered with the Public Citizen Litigation Group to represent two groups of federal union employees seeking to prevent the illegal shuttering of USAID.
In the complaint, the core of the plaintiffs’ claim is set forth simply and elegantly:
Not a single one of defendants’ actions to dismantle USAID were taken pursuant to congressional authorization. And pursuant to federal statute, Congress is the only entity that may lawfully dismantle the agency.
The complaint also alleges:
The President of the United States has only those powers conferred on him by the Constitution and federal statutes
The President does not have the power under the Constitution unilaterally to amend statutes.
President Trump’s actions to dissolve USAID exceed presidential authority and usurp legislative authority conferred upon Congress by the Constitution, in violation of the separation of powers.
The logic made plain in the USAID complaint applies to virtually every unlawful action taken by the DOGE vandals to date.
In a second victory, a federal judge barred the FBI and DOJ from disseminating the names of the FBI agents who worked on the January 6 investigations. The judge entered an order on a stipulated consent order—i.e., a voluntary agreement between the plaintiff FBI agents (current and former) and the DOJ. The Consent Order is here: FBI Agents Association v DOJ | ORDER | 2025-02-07.
The consent order remains in effect until the hearing on a motion for preliminary inunction, or on two days’ notice, whichever is sooner.
But, in an action by employees of the Department of Labor, a federal judge denied the employees’ request for an order protecting their private information from DOGE hackers. See The Hill, Judge won’t block DOGE from accessing Labor Department systems.
The order denying the AFL/CIO’s motion for temporary restraining order is here: AFL / CIO v. Dept of Labor | Order.
The judge denied the request for a temporary restraining order on the ground that the plaintiffs have not yet suffered injury and, therefore, do not have standing to bring the suit at this time. The judge nonetheless scheduled a hearing on a preliminary injunction. In short, the case isn’t over.
However, even as employee unions are obtaining injunctive relief in court, it appears that Musk and Trump are continuing their march to the sea unabated. In a press availability on Friday, Trump said that he has effectively given DOGE free rein in making cuts—which, as noted above, violates Articles I and II of the Constitution and the Impoundment Control Act of 1974. See The Guardian, Trump hints Musk ‘Doge’ team has free rein with Pentagon next in line for cuts.
At the press conference, Trump said,
Pressed on whether there was anything he has told Musk he cannot touch, Trump offered only a vague reply. “Well, we haven’t discussed that much,” he confessed. “I’ll tell them to go here, go there. He does it. He’s got a very capable group of people. Very, very, very, very capable.
“They know what they’re doing. They’ll ask questions, and they’ll see immediately as somebody gets tongue-tied that they’re either crooked or don’t know what they’re doing. We have very smart people going.”
No reporter asked Trump about the constitutionality or legality of Musk’s actions, asking instead whether anything is “off limits.” In response to that question, Trump said that the Department of Defense and the Department of Education are next:
I’ve instructed him to go check out education, to check out the Pentagon, which is the military. And you know, sadly, you’ll find some things that are pretty bad.
Finally, although a court order restrains Musk and DOGE from obtaining access to the Treasury payments system, Musk has managed to appoint a friend and fellow Silicon Valley venture capitalist to take charge of it. See The New Republic, Elon Musk to Install DOGE Crony Amid Treasury Department Takeover.
There is no indication—yet—that Musk has violated the order prohibiting DOGE from having anything more than “read-only” access to the Treasury payment system. Still, two sources (Talking Points Memo and Wired) suggest that DOGE agents have moved beyond read-only access.
Shutting down USAID is simply unconstitutional. For all intents and purposes, USAID has ceased work and been defunded. How that happened is not clear, but the onus is on Trump to “take care that the laws are faithfully executed.” Instead, plaintiffs and legal advocacy groups are forced to play “twenty questions” and “hide the ball” with DOJ lawyers feigning ignorance of the facts.
Concluding Thoughts
This was a longer newsletter than I should have written on a Friday night. But there is so much happening it isn't easy to be brief. As the old saying goes, “If I had more time, I would have written a shorter paper.”
I will be on Substack Livestream on Saturday morning, February 8, at 9:00 am PST / 12:00 noon EST. I will send an email 30 minutes in advance. Just log onto the Substack app at the appointed time, and you will see a notice that I am live streaming.
There is a perverse dynamic at work. As Trump and Musk engage in ever more awful actions, they will hasten the moment of our victory. We shouldn’t wish for awful things to happen, but we should recognize that the cruelty and depravity of their actions are sowing the seeds of their failure while strengthening the opposition that will crush their hateful agenda.
Stay strong! Talk to you tomorrow!
Daily Dose of Perspective
Los Angeles is still covered in clouds, so I am publishing an image from my archive: NGC 2174, also known as the Monkeyhead Nebula, is located 6,400 light years from Earth.
Enjoy!
Yesterday at age 79 I marched in my first ever protest. 27 people signed up to protest Musk outside the Tesla dealership in Tucson and 51 showed up. We are hoping to double that number in the next march. Yes we need bodies (live ones) in huge numbers protesting in the streets going forward before Republicans back off.
I have always understood that court orders and judgments work only if they can be enforced. How will this enforcement be possible when this administration has control of, or has disbanded, the enforcement agencies?.