Must the President Cooperate with an Attempted Coup?

Nineteen rebellious states attempt to override the Constitution and hamstring the country's chief executive.

The assault on the President’s constitutional powers

The opening sentence of Article II of the U.S. Constitution is straightforward and grants the one person — the President — broad powers:

The executive Power shall be vested in a President of the United States of America.

Nineteen rebellious states¹ are now attempting to usurp that executive power, which the Constitution vests solely in one person — the President. This case, which seeks to wrest control of the Department of the Treasury away from President Trump and Secretary of the Treasury Scott Bessent, is part of the ongoing campaign of lawfare by which the Democrats seek to frustrate the will of a majority of voters and states, thereby overturning the results of the presidential election. They have been aided and abetted thus far by a pliable, low-level federal judge in New York. The case is now proceeding with another judge. We shall see.

Background of this case and an update on its progression

Within the last week I have published two articles about this New York case, “More Revolution from the Insurrectionist Federal Judiciary,” and “It Is Worse than We Thought.” This article adds to that discussion. It will presume that the reader is generally familiar with the case and the issues discussed in those articles. If not, you may want to take a look at them and then read on.

After those two articles were published, the Defendants file an Emergency Motion to Dissolve, Clarify, or Modify the TRO that Judge Engelmayer had entered. Judge Jeannette Varga² then made a modification to the TRO. After that, the government filed a Memorandum of Law opposing the Plaintiffs’ requested injunction. The Plaintiffs’ response was filed today (February 13), and a hearing on the request for a preliminary injunction is scheduled for tomorrow, February 14, at 2:00 p.m.

A primer on injunctions and TROs (for those without legal training)

First, one point not mentioned in my prior articles is the difference between a temporary restraining order (TRO), which has now been issued, and a preliminary injunction, which will be decided after the hearing on Friday. Readers who are lawyers or paralegals will understand this is intended for readers who are not familiar with the legal process.

An injunction is a form of what the law refers to as “extraordinary relief.” Unlike a judgment that awards a successful plaintiff a monetary sum, an injunction prohibits the defendant from performing or continuing some illegal act or dangerous condition (such as a homeowners’ association attempting to enforce racially discriminatory rules). A “mandatory injunction” may order the defendant to perform a specific act (such as convey real estate that is the subject of an enforceable contract).

Getting an injunction often is a two-stage process. A plaintiff may obtain a preliminary injunction on an expedited basis that typically lasts for a limited time until discovery can be conducted and a full trial on the merits can be held. A full trial can then result in a permanent injunction for a successful Plaintiff. Sometimes a hearing on a preliminary injunction and a full trial on the merits may be consolidated, although that has not happened in this case.

In cases of extreme emergency, where “irreparable harm” will occur immediately if the court does not act swiftly, a judge may enter a TRO granting the requested relief. But a TRO can only last for a maximum of 14 days, unless the court extends it for compelling reasons.

Defenses to a TRO that the Defendants did not raise

There are several defenses to a TRO and an injunction that the Defendants have not yet raised, and which they apparently do not intend to raise. One of those defenses is the lack of meaningful notice of the application for a TRO. I discussed this in “More Revolution from the Insurrectionist Federal Judiciary.” Suffice it to say that New York’s “Special Trial Counsel,” Colleen Faherty, tried to give the appearance of having provided notice that they were asking for a TRO, but it was a sham notice that provided the Defendants no meaningful opportunity to respond. The Defendants did not raise this issue either in their Emergency Motion to Dissolve, Clarify, or Modify the TRO or in their Memorandum of Law opposing an injunction. This decision to conserve their resources by not fighting this battle may have been an application of Clausewitz’s principle of “economy of force,” so I will not second-guess it now. You may draw your own conclusions.

A second defense that the Defendants eschewed is somewhat more concerning, if only because it evidences a certain lack of an aggressive defense. As I previously pointed out, a TRO is not effective until a bond or other security is posted.³ Judge Engelmeyer ordered a nominal $10,000 to be posted as security prior to the beginning of the hearing at 2:00 p.m. on February 14. The express terms of Rule 65(a) provide that a TRO is not in effect until that security is posted.

Yet even though the TRO is not effective until security is posted, the Defendants affirmatively stated both in their “Emergency Motion” and in their ““Memorandum of Law” that they were taking “all necessary steps to comply with the Court’s Order.” So, the President and other Defendants are complying with an Order with which they are not legally obligated to comply. As Alfred, Lord Tennyson said, “All the world wondered.” Perhaps the defense lawyers made another tactical decision not to raise that issue, but it is something to wonder about.

Finally, there is the issue of the insufficiency of the amount of security that Engelmeyer required. Given the potential damage that the country could suffer if DOGE is denied access to the Treasury Department records even temporarily — the hampered ability to control some of the runaway and fraudulent spending that has the country headed toward a financial abyss — a bond that fully protects the government from a wrongful injunction could run into the hundreds of millions of dollars. This is a complex question and could be a trial in itself. Again, defense counsel may have consciously decided not to make an issue of this for tactical reasons, or they may raise it at the injunction hearing on Friday, but it does grant the Plaintiffs considerable latitude to try to shut down DOGE’s operations with minimal cost to themselves.

Must the president cooperate with an attempted coup camouflaged as a court order?

Short answer: No.

People have been trained to believe that a President must follow the orders of a third-tier federal judge, because orders coming from any of the 1000+ federal judges in the country⁴ are the “law of the land” and must be regarded as supreme.

Such deference should usually be granted as a matter of comity, when judges stay within recognized constitutional bounds. But where a judge veers far from the constitutional path and enter a patently erroneous or unconstitutional order, a President is not required to follow.

First, we start with the proposition that the judiciary is not the supreme branch of the government. It is one of the three co-equal branches. The lack of supremacy of the entire judicial branch is highlighted when you consider that there are over 1000 active district judges. When the Constitution vests the executive power of the Unites States in one person — the President — it defies common sense to think that he is obligated to obey every order from each of those 1000+ judges who might try to second-guess his exercise of that power.

Next, when you consider a couple of examples, the fallacy of that broad reasoning becomes even more apparent.

What if one of the 1000+ district judges were to enter an order forbidding the President from accessing highly classified military documents such as nuclear attack plans, on the grounds that the President has not been properly trained. (That alleged lack of training was one of the bases for Judge Engelmayer’s Order prohibiting certain officers and employees from accessing documents.) Would the President be required to follow such an Order? I think not. Neither would he be obligated to litigate the matter through the court system for months or even years before obtaining an answer from the Supreme Court. No, the President should continue to exercise his command authority over the military, and say, as President Jackson famously did, “John Marshall has made his ruling now let him enforce it.”

Or, what if a low-level judge forbade, say, the Secretary of Transportation, from accessing sensitive documents held by agencies he supervised, because he previously had been only a small-town mayor and had not “passed all background checks and security clearances and taken all information security training called for in federal statutes” that some civil servants get to safeguard private information (as Engelmayer also required)? I think that even most Democrats might shrink from such a rule.

Everyone can come up with their own examples. But the answer to the initial question above is a resounding “No.” The President, as the Chief executive officer of the country is not obligated to heel every time an out-of-control federal judge jerks his leash.

And in addition to Andrew Jackson, there is powerful precedent for a president’s refusal to acquiesce in a court order. President Lincoln famously defied an order entered by Supreme Court Justice Taney. Lincoln had suspended the writ of habeas corpus in certain sensitive military areas. Federal troops had arrested and imprisoned a Confederate sympathizer who had been “recruiting, training, and leading a drill company for Confederate service.” When the prisoner sought release pursuant to a writ of habeas corpus, Justice Taney, sitting as a trial judge, entered an order and opinion that Lincoln’s suspension of the writ was outside his powers. Lincoln did not resolve the matter by appealing the order. President Lincoln just ignored Taney’s order.

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

2. The case is assigned to Judge Varga. When it was filed the night of February 7, Judge Engelmayer was the judge on duty to handle “emergency” after-hour matters.

3. Rule 65(c) provides: “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.”

4. There currently are 677 authorized federal district judges. In addition, at any given time there are around 400 judges on “senior status” who are still actively handling cases.