
Bill Clark/CQ Roll Call via AP Images
Employees and supporters protest outside the USAID headquarters, February 3, 2025.
The latest executive orders and outright seizures of government agencies have one thing in common: They are patently illegal. Much of what President Trump and Elon Musk have done can only be legally done by changing statutes. This leaves them all vulnerable to court injunctions.
We got a taste of this choreography when Trump’s OMB issued an order freezing most government payments. That was last Monday night. By Tuesday, facing a political outcry from both parties, OMB modified the order. Later Tuesday, a federal district judge in D.C., Loren AliKhan, issued a temporary restraining order blocking the OMB action. OMB then withdrew its order entirely.
Then on Friday, a federal district judge in Rhode Island, John McConnell, in response to a suit from 22 state attorneys general and the District of Columbia, issued a much broader permanent injunction providing that the Trump administration cannot “pause, freeze, impede, block, cancel, or terminate” taxpayer money already allocated by Congress in the 23 jurisdictions that filed the suit. OMB has complied. Score one for the rule of law.
The latest ploys by Trump and Musk are even more audacious and outrageous. Consider these.
Musk is attempting to shut down the U.S. Agency for International Development. USAID headquarters were closed at Musk’s order, and the Department of Homeland Security barred officials from entering. Employees were also blocked from accessing the agency’s website.
On X, Musk called the agency “evil” and a “viper’s nest of radical-left marxists who hate America.” He added, “USAID is a criminal organization. Time for it to die.”
“It’s been run by a bunch of radical lunatics. And we’re getting them out,” Trump said to reporters. USAID is the world’s largest supporter of famine relief.
All of this is illegal. USAID was created by an act of Congress, and it can only be shut down by an act of Congress. In addition, nearly all of the employees that Musk and Trump propose to fire have civil service protections and due process rights. Those also can only be altered by an act of Congress.
In the next few days, we can expect lawsuits. These actions are so patently illegal that litigants will likely find a federal district judge to issue an injunction.
By a week from now, we will probably see injunctions by federal district judges against every one of these extralegal actions.
The Trump administration has also flagrantly sought to politicize our secret police, the FBI. They have reassigned agents, subjected them to Trump loyalty tests, and gone after agents who worked in the January 6th investigation and prosecution. This is also illegal. They have also tried to oust all of the Bureau’s regional directors. At least one, James Dennehy, who heads the Bureau’s largest and most important field office in New York, is fighting back.
“Today, we find ourselves in the middle of a battle of our own, as good people are being walked out of the F.B.I. and others are being targeted because they did their jobs in accordance with the law and F.B.I. policy,” Dennehy wrote in an email to his staff. We can expect a lawsuit to follow.
Some ousted inspectors general are also challenging their dismissals. Phyllis Fong, of the U.S. Department of Agriculture, one of 17 IGs illegally fired by Trump, told colleagues that her dismissal was illegal and that she wasn’t leaving. She was marched out of her office by security agents. Her office was also involved in a 2022 investigation into Elon Musk’s brain implant startup, Neuralink, which remains ongoing. These illegal firings will also end up in court.
Potentially the most alarming of these extralegal incursions is Musk’s penetration of the Treasury’s payments system. If Musk succeeds in getting control of the system, he and his minions could conceivably block payments of which they disapprove. This risk is the subject of David Dayen’s companion post. A lawsuit has now been filed about this action.
By a week from now, we will probably see injunctions by federal district judges against every one of these extralegal actions. Then the fat will be in the fire. Will Trump and Musk honor the injunctions? Which of these cases will work their way up to the Supreme Court?
As I wrote in an earlier post, the strategy of flooding the zone could backfire on Trump, because it will also flood the Supreme Court’s crowded docket, and the Court cannot possibly accept all of these cases for appeal. If challenges to the illegal Trump-Musk actions prevail in the lower courts, many of which are being filed in jurisdictions where the judges are relatively liberal, the Supreme Court could let them stand.
With Trump controlling both Houses of Congress, the courts are the last check on what amounts to an attempted coup. But there is always the risk, cited by executive-power legal scholars Robert Bauer and Jack Goldsmith, that Trump might just decide to ignore the courts.
IF MUSK AND TRUMP GET AWAY WITH HIS HOSTILE TAKEOVER of government, we are headed for full-on fascism, in which a dictatorial regime can operate by whim, with no legal restraints. But there is one notable difference about Trump’s brand of fascism.
When Hitler took power in Berlin in January 1933, he soon marginalized all opposition parties and turned the Reichstag into a rubber stamp. It did not take him long to get control of the entire government, and he enforced his will with state-sponsored terror.
But Hitler was all about imposing order on a society weary of chaos. We have never seen a fascistic government imposing chaos for its own sake.
In some respects, as in the case of the Treasury payments system, and the effort to gain political control of our secret police, the FBI, this is classic fascism. But in other respects, such as the attempted destruction of USAID or the CDC or the NIH, this is something new, that seems to grow out of the ideology of destroying the so-called deep state. (Hitler was just fine with the deep state; he just wanted it to serve his purposes.)
One thing that fascists have in common is that as unrestrained despots, they are at risk of making serious mistakes. This is even more the case when they are impulsive and half-crazy, which describes both Hitler and Trump.
Hitler was more strategic and better informed than Trump. As late as August 1939, he had cowed the rest of Europe into acceding to his demands. But then Hitler made a few very big mistakes. One was assuming that the U.S. would stay out of the war. A second was assuming that Britain would have to make peace on his terms. The most fatal mistake was deciding to invade Russia.
Trump and Musk, if anything, are more reckless and more prone to blunders than Hitler. Unlike Germany in 1933, the U.S. retains some elements of democracy. Will they prove strong enough?