The Lawsuit Coup

Left-wing attorneys who use the legal system to subvert our form of government must be forced to defend their professional licenses personally.

My recent piece at Chronicles, printed in full below.

On the evening of Feb. 7, New York Attorney General Letitia James, together with attorneys general from 18 other states sued to prevent President Trump, his political appointees (including Treasury Secretary Scott Bessent), and members of the Department of Government Efficiency (DOGE) from accessing Treasury records. They sought an immediate restraining order (which was granted by Obama-appointed Judge Paul Engelmayer so quickly it’s doubtful he read the full complaint), a temporary injunction, and a permanent injunction. Their suit aimed to bar the president and his agents from doing their jobs. Forever.

They argued that Executive Order 14158 (creating DOGE), and the Treasury’s implementation of it, violated the Privacy Act, the Tax Reform Act, the E-Government Act, the “separation of powers doctrine,” and the “Take Care Clause.” They also claimed their actions were “ultra vires” and “arbitrary and capricious” under the Administrative Procedure Act. According to James, these violations “increase the risk” that the states’ “financial data” will be disclosed.

The Justice Department filed its response four days later. It highlighted the constitutional issues entailed in the plaintiffs’ challenge: “the extraordinary injunction [the plaintiffs] seek would violate the separation of powers … and intolerably inhibits the President’s exercise of his constitutional functions.”

This is a striking contrast to the dubious justice meted out during the Biden presidency: The complaint depends on byzantine statutory interpretation, whereas the government’s response focuses on concern for our form of government (a concern not raised at all by these attorneys general). But the plaintiffs’ tedious arguments about obscure statutes belie something sinister. Their complaint, and dozens like it since Trump’s inauguration, pose a grave threat to our form of government. They are nothing short of an attempted coup by lawsuit.

On Feb. 21, District Judge Jeanette Vargas (a 2024 Biden appointee) ruled on the plaintiffs’ motion for a preliminary injunction. Her 64-page opinion winds its way through their many arguments, dispensing with all but one.

Vargas held that the plaintiffs’ claim “does not even arguably fall within … the Privacy Act,” that their financial data “in no way constitutes” information protected by the Tax Reform Act, and that the E-Government Act “is intended to protect individuals” not states.

She chastised them for attempting to “use the backdoor of an ultra vires claim,” which she called “a Hail Mary pass.” (“Ultra vires” is a circular term that means something is unlawful because it is unlawful). She called their separation of powers arguments “too attenuated” to prevail. And she reminded the plaintiffs that courts “have expressed serious doubts [about the] justiciability” of the Take-Care clause.

For the non-lawyers, the above quotations are the legal equivalent of smackdowns. They are about as close as the judiciary ever gets to insulting your mother and calling you “stupid.” In other words, Judge Vargas told the plaintiffs that most of their arguments were frivolous.

Most, but not all.

She agreed that Treasury’s process for granting access to DOGE personnel was “arbitrary and capricious” in violation of the Administrative Procedure Act. This was so, according to Vargas, because there was an “artificial sense of urgency” and things were not “implemented in a measured, reasonable, and thoughtful way.” As a result, “the States’ financial data would be at a higher risk of being exposed.”

But obvious questions went unanswered: How is the risk elevated? What amount of risk is too high? What harm will result? Neither the plaintiffs nor the court attempted to answer these questions.

For example, it’s not clear what types of data are in jeopardy—the only definition the states gave was “sensitive bank account information and other financial data.” A cynic might argue this means the account numbers printed on the front of government checks mailed to thousands of people. At any rate, we know it doesn’t mean citizens’ social security numbers because, as Vargas observed, states don’t have standing to sue on those grounds.

The lack of answers to these questions is all the more curious given an amicus brief filed by 20 different states in support of the defendants. Led by Iowa, they objected to the plaintiffs’ motion on constitutional grounds. Thus, while the plaintiffs argued they would suffer unspecified but “irreparable harm” to the privacy of their undefined “financial data,” the 20 amicus states didn’t raise the cybersecurity issue at all. The words “financial data” and “privacy” do not appear in their brief.

True, most of the plaintiff states voted for Harris while most of the amicus states voted for Trump. But all have the same interest in securing their financial data since all are in the same position vis-à-vis Treasury and DOGE. If DOGE was a threat to their data security, wouldn’t the amicus states say so?

Vargas’ order fails to acknowledge any of this. The omission would make sense if this were an ordinary legal proceeding. But even then, the plaintiffs have not even offered enough facts to gain a preliminary injunction. They should have lost given the lack of answers to the questions raised above. But Vargas granted the injunction anyway.

This leaves two explanations: Either the cybersecurity threat alleged by James and the blue-state plaintiffs is a pretext for their real goal (impeding the president’s constitutional powers) or the red states involved in the amicus briefs don’t care about financial security. The latter seems implausible given the high price we would have to believe they are willing to pay for the privilege of filing a mere amicus brief. A better explanation is that only one side is playing politics.

One side and a district court judge, that is.

Which leads us to the most glaring omission of all. How is it that Judge Vargas could ignore the constitutional arguments raised by the defendants? The president’s exclusive constitutional powers–and the plaintiffs’ threat to the separation of powers–were the primary objections raised by the Justice Department. And they were the only objections raised by the 20 amicus states: “Plaintiffs’ requested injunction not only deprives the President of his constitutionally allocated authority–it poses a direct threat to the liberty of the American people.”

But in her 64-page opinion, Vargas didn’t address them at all. Instead, she granted the blue states’ motion based upon their argument that in exercising the president’s constitutional powers, the defendants violated the Administrative Procedure Act. This is odd since a mere statute cannot limit the president’s constitutional powers. Vargas never mentions any of this. It’s as though she doesn’t think there is any constitutional question at all.

But there is.

That question is whether the executive power is vested in a president of the United States of America or not? The first sentence of Article II answers that question in the affirmative. Vargas either ignores this or isn’t aware of it. Instead, she bases her opinion on what she perceives to be a lack of sufficient training by DOGE personnel and the “hurried nature of [the] process.”

To all this “concern trolling” about insufficient training and rushed processes the Constitution says: So what? Vargas is part of the judicial branch. Her job is to protect our Constitutional form of government against the threats to it from all quarters, not to offer her own opinion about whether Big Balls is sufficiently trained or an executive order was “hurried.” To be sure, even if DOGE employees were incompetent (they’re not) or moved too quickly (and in fact “broke things”) the Constitution would not look to Vargas (or any district court judge) for a correction. Not when the Executive is exercising his exclusive powers, anyway.

As Alexander Hamilton observed in Federalist 78: “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

This means that the Administrative Procedure Act is nothing as compared to the will of the people and the Constitution’s delegation of executive power. And the people have made their will apparent: DOGE shall implement President Trump’s executive orders. Quickly.

As Victor Davis Hanson observed years ago, the left hasn’t been playing by the Marquess of Queensberry Rules for a long time. With organizations like the 65 Project, the left weaponized the sanctions and ethics referral process against conservative lawyers like John Eastman. As a result, they nearly destroyed our constitutional system. Still, too many right-wing attorneys persist in their gentlemanly demeanor. The time for gentlemanliness is over. Left-wing attorneys who use the legal system to subvert our form of government must be forced to defend their professional licenses personally.

By filing a complaint in federal court, an attorney certifies that the arguments made therein “are warranted by … nonfrivolous argument.” Similarly, state rules of professional conduct prohibit bringing a lawsuit “unless there is a basis in law and fact for doing so that is not frivolous.” Sanctions and ethics referrals are the remedy for frivolous complaints.

Letitia James, and the 18 state attorneys general who joined her, violated both. Indeed, despite having granted their motion, even Judge Vargas knocked down all but one of their arguments with flowery language like “not even arguable” and “Hail Mary pass.” All of them must be sanctioned and subject to ethics complaints.

In truth, however, the plaintiffs’ arguments are even worse than frivolous. They are subversive. Judge Vargas facilitated this subversion. In granting the injunction, Judge Vargas joined the plaintiffs’ lawsuit coup. Her detailed attention to irrelevant statutes, while ignoring grave constitutional issues, is not legal reasoning. The omission betrays a lack of competence, intellectual dishonesty, or both. Vargas should be removed.

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