More Revolution from the Insurrectionist Federal Judiciary

A rush to judgment and the Rules be damned.

The U.S. Constitution grants the sole executive power to the President. That power has now been usurped by New York’s Letitia James and 18 other insurrectionist state attorneys general,¹ all in league with one low-level federal judge in New York.

That judge has taken it upon himself to be the first judge ever to grant a temporary restraining order (“TRO”) against the President of the United States that also to forbids a cabinet secretary from accessing his own records without giving them an opportunity to respond, with zero analysis of his Constitutional authority to make such a radical ruling, zero analysis of the Federal Rule governing injunctions and temporary restraining orders, and zero analysis of why he is enabling fraud and grift by blocking access to records that show who got government money and for what.

New York Attorney General Letitia James

Bear With Me Here

Since President Trump’s inauguration, the Dems have been trying to regain their footing to “resist” everything that he and his administration do. A major part of their strategy is to continue the lawfare that they have waged against Trump since before he first took office in 2017. Those battles seem to have accelerated as he has moved decisively to get control over government spending and root out the scallywags and fraudsters benefitting from government largess.

This past week I have published two articles about rebellious judges in D.C. They are available here (“D.C. Federal Judges Join the Resistance”) and here (“More Judicial Rebellion in D.C.”). But the insurrectionist lawfare has now returned to its roots in New York where one of its chief architects, New York Attorney General Letitia James, has taken it to a new level.

It is relatively easy to write a short article saying that these legal opinions that are part of the lawfare campaign are wrong-headed and inconsistent with fundamental legal principles. Some writers do that, and their articles can be both enlightening and entertaining. My preference and practice, however, are not just to reinforce readers’ instincts with a shorter and less analytical article, but to employ a more detailed approach that discusses the governing Federal Rules or statutes, and a few court decisions, to demonstrate why these recent decisions are wrong and why the labels of “insurrection” or “coup” are not too strong. That necessarily sometimes requires a trip into the weeds or, to mix metaphors, a bit of “inside baseball.”

Both approaches have merit, and I am not criticizing the other approach. But my objective is both to show that my conclusions are sound and to give the readers some ammunition if they are discussing/debating these issues with others. If this approach is for you, please read on and venture into the weeds a bit with me (and subscribe if you have not already done so!).

The Lawsuit and Supporting Documents

Late last Friday, February 7, New York State Attorney General Letitia James and her 18 insurrectionist state attorneys general filed a lawsuit against President Trump, Treasury Secretary Scott Bessent and the Department of Treasury. They seek to usurp the powers of the presidency and of the Secretary of the Treasury by prohibiting them from any effective review of Treasury Department records to root out fraud and waste in government spending.

Anyone attempting to read the suit and materials submitted with it would be faced with a monumental task, even if they had help. The Complaint runs to 200+ paragraphs in almost 60 pages. In the Complaint alone the Plaintiffs cited more than 50 articles and other sources that they thought were of sufficient importance to include in it. It was accompanied by a 40-page legal Memorandum that includes over 27 pages of discussion, and citations to 54 court opinions.

The filing also included an “affirmation of Colleen K. Faherty” who is listed on the Complaint as “Special Trial Counsel” for New York.”

Any honest judge who wanted to make a reasoned decision on such a monumental and high-profile matter would at least have become familiar with all these materials. That would be several days’ work, at a minimum, even with the assistance of very able law clerks. And that’s not even considering any independent research the court would do or any input the judge can and should seek from the Defendants.

These materials, however, were electronically filed with the court sometime after 7:32 p.m. Friday night. At the time, the judge on duty to handle after-hours emergencies was Paul A. Engelmayer.

Judge Engelmayer’s Temporary Restraining Order

Judge Paul A. Engelmayer Photo Credit: Diego M. Radzinschi

In the opening paragraph above, I referred to Judge Engelmayer as a “low-level federal judge.” That will doubtlessly offend many federal district judges, all too many of whom often confuse themselves with God. (It’s a good thing I am retired!) Lawyers who practice before them refer to the syndrome as a disease — “blackrobeitis.” Paul Engelmayer appears to have a terminal case. In fact, he is a relative low-level federal employee — one of over a thousand active federal district judges.²

After Engelmayer got the States’ Complaint and related filings on Friday night, he wasted no time in ruling on the application for a TRO. In a feat of seeming super-human efficiency and concentration he must somehow have reviewed and diligently analyzed the 80+ pages of the Complaint and the Memorandum of Law, carefully read at least some of the 100+ court opinions, articles and other sources cited by the Plaintiffs, and concentrated on it all very carefully before entering his unprecedented Order granting the request for a TRO.

Engelmayer’s “analysis” in that Order, exclusive of the heading and signature block is about two-and-one-half pages long. He only cites one case in the entire order, Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7 (2008). That case has nothing to do with the issues before him. Its only resemblance to this matter was that it involved an injunction (not even a TRO). But the injunction entered by the lower courts had imposed “restrictions on the Navy’s sonar training,” because of a risk of “possible injury” to marine mammals. The Supreme Court reversed the injunction as “an abuse of discretion.” Winter provides zero authority for Engelmayer’s attempt to create a constitutional crisis by wresting control of the Department of the Treasury away from President Trump and Secretary Bessent.

Engelmayer ordered that “all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department” are denied access to any records or “data systems” that contain “personally identifiable information and/or confidential financial information of payees.”

Think about that for a minute. The Secretary of the Treasury is a “political appointee.” So, on its face Engelmayer’s Order prohibits the Secretary from accessing records of his own department for which he is responsible.

And what records are those? “Confidential financial information of payees!” So, if Treasury has records of government payments to a company owned by, say, Senator Elizabeth Warren, AG Letitia James, or George Soros, those records may not be accessed by the Secretary or any “special government employees” to see if any favors were exchanged for big donations. Now there’s a nifty way to cut off any fraud investigation!

Engelmayer doesn’t tell us who these “special government employees” are. He puts “special government employees” in quotation marks on the first page of the Opinion but never defines the term, leaving us to guess at who he means to exclude from seeing the records.

This draconian Order also ordered the President and Treasury Secretary to direct any prohibited person “to immediately destroy any and all copies of materials down loaded from the Treasury Department’s records and systems. Who knew that covering up fraud could be so easy? All you have to do is shop for the right federal judge.

Federal Rule of Civil Procedure 65

Applications for a TRO are governed by Federal Rule 65. It has a number of requirements with which both the Plaintiffs and the court must comply. But Letitia James, the other Plaintiffs, and their hand-picked judge have ignored both the letter and the intent of Rule 65. Let’s start with the lack of any meaningful notice to the Defendants that would have allowed them to be heard.

The Phony Notice and the Lack of Any Meaningful Notice

Although TROs are occasionally granted without notice to the opposing parties, that is highly unusual and is reserved for true emergencies where “irreparable harm” will occur if relief is not granted immediately. This is why TROs are referred to as “extraordinary relief” by courts. As the official Advisory Notes to Rule 65 caution,

In view of the possibly drastic consequence of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done.

Courts normally require a party to give prior notice that they are going to ask for a TRO as a matter of simple fairness, and to prevent the court from getting snookered into granting “extraordinary” emergency relief when it is not justified. In the course of my 46-year legal career, in every TRO application that I was ever involved in, if the opposing party was not at the initial hearing, the judge’s first question likely would be, “What did you do to give the other side notice.”

In this case the charlatans in the New York Attorney General’s office attempted to evade the notice requirement while giving themselves a phony fig leaf of cover. In Colleen Faherty’s “Affirmation” this is all she said about notice:

6. On February 7, at 7:32 p.m. ET, I provided via e-mail to (1) Rebecca Tinio, Chief of the Civil Division from the U.S. Attorney’s Office for the Southern District of New York; and (2) Bradley Humphrees, Senior Trial Counsel for the U.S. Department of Justice notice of the States [sic] concerns about Defendants’ harmful conduct and the States [sic] intent to seek immediate temporary relief.

An e-mail at 7:32 p.m. on a Friday night! Did Faherty receive a receipt showing whether or when the email was read by either recipient? She doesn’t say. Did she send the two lawyers a copy of the Complaint? Or of the legal Memorandum? No and no. She said only that she gave notice that the States had “concerns” and of their “intent to seek immediate temporary relief.” Did she try to telephone them? No. Did she even provide a copy of her alleged email? Same answer: “No.”

Special Trial Counsel Colleen Faherty

What a paragon of probity! The integrity just oozes from her every pore.

All the above materials were submitted and then decided Friday night, sometime after 7:32 p.m., without any meaningful notice to the President of the United States, the Secretary of the Treasury or their attorneys.

As a practical matter the Defendants never had any opportunity, much less a meaningful opportunity to be heard, before Engelmayer entered his restraining Order a short time later after Faherty sent her e-mail.

Faherty is a woman who clearly was making an effort to go through the motions so that she could cover her a** by claiming to have attempted to provide “notice,” but by doing so in a manner calculated to avoid any meaningful opportunity to be heard. Any so-called notice that is calculated to deny a meaningful opportunity to be heard is no notice at all. Don’t just take my word for it. I am in good company on this issue with the U.S. Supreme Court, which has held that meaningful notice is a fundamental constitutional right:

For more than a century the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."

That was in Fuentes v. Shevin, but there are numerous Supreme Court decisions affirming this fundamental principle, some of which I have elided in the above quote.

With apologies to Treasure in the Sierra Madre, I can hear Faherty now: “Notice? You ain’t getting no notice. You don’t need no notice. I don’t have to give you any stinkin’ notice.

The TRO was Issued in Violation of Rule 65(b)(1).

Rule 65(b)(1) provides:

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only (all bolded emphasis is added) if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Normally an order granting a TRO without notice will explain why “specific facts” in a sworn complaint or affidavit “clearly show” that “loss or damage will result” unless the court grants a TRO immediately without giving the respondent any meaningful notice. Judge Engelmayer’s Order, however, makes no mention of Faherty’s phony “notice” or of any reasons for dispensing with the requirement for meaningful notice. The word “notice” does not even appear in the Order.

Finally, the Complaint is not “verified,” i.e., sworn to under penalty of perjury. Thus, Plaintiffs failed to comply with the requirement for an “affidavit³ or a verified complaint” that “clearly show[s]” with “specific facts,” that immediate and irreparable” loss “will result” if the Defendants are given time to respond. The Complaint was not “verified” and there are no “specific facts” in Faherty’s Affirmation that “clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.”

The Order does not comply with Rule 65(b)(2).

Rule 65(b)(2) provides:

Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. . . .

Engelmayer’s Order does not comply with these mandatory requirements. The face of the Order is inconsistent regarding the date it was issued. The Order recites that it was entered on “February 8, 2025.” But it also says in its first sentence that the court received the application for a TRO “this evening,” which would have been the day before. The reference to “this evening,” indicates that the Order was actually written on Friday, February 7, even though it was not filed until early the next morning.

Some of this confusion could have been cleared up had Engelmayer complied with the requirement to state in the Order “hour it was issued.” Similarly, as mentioned above, the Order ignores the mandatory requirement to “state why the order was issued without notice.” This Order does no such thing.

Finally, the Order also does not “describe the injury and state why it is irreparable.” The only alleged “injury” it describes are two hypothetical “risks”: a “risk of the disclosure of sensitive and confidential information” and an increased or “heightened risk” of computer hacking. These hypothetical future “risks” are what Judge Engelmayer has divined from the Complaint, and they do not come close to being “specific facts” that “clearly show that immediate and irreparable injury, loss, or damage will result” if the TRO was not entered.

What a sham order. What a sham proceeding. What a sham judge.

Playing games with the Rule 65(c) requirement for a bond.

Rule 65(c) provides:

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

The Plaintiffs did not post a bond or any other security sufficient to pay the cost and damages from a wrongful TRO. Without any discussion or explanation, Engelmayer ordered the Plaintiffs to post a nominal bond - $10,000 or $526.32 for each Plaintiff - by 2:00 p.m. on February 14. He does not even hint at how he came up with that piddling amount.

The bond is not required a week after a TRO is granted as Engelmayer ordered here. It must be posted before the TRO becomes effective. Thus, at the present time the Defendants’ counsel may advise them that they remain free to continue business as usual, because the TRO is not yet in effect. It’s an insignificant amount of money for the Plaintiff States, but Judge Engelmayer’s casual disregard for the Federal Rules is not insignificant.

I would also note that if the Defendants had been given a meaningful opportunity to be heard, they would have made the case that a token $10K bond was grossly insufficient to pay the costs of a wrongful issuance of a TRO. But, of course, they never had that chance.

Wrapping up but more to come

In short, Engelmayer’s Order was a very rushed, put-up job with zero input from the Defendants, and also is one that fails to comply with the governing Federal Rule of Civil Procedure. In the next installment of this saga, we will look at the substantive overreach and failings in Engelmayer’s Order and how the Defendants and administration can effectively fight it (which will be for paid subscribers only, so you may want to sign up now!).

1. Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, North Carolina, Oregon, Rhode Island, Vermont, and Wisconsin.

2. There currently are 677 authorized federal district judges. Judges on “senior status” who are still actively handling cases are not included in that total. Their number varies from time to time but generally is around 400.

3. Colleen Faherty’s “affirmation” qualifies as an affidavit, but it does not come close or even pretend to satisfy this requirement.