Three Months Later, DOGE Finally Gets Access To Treasury Payment Systems

Three Months Later, DOGE Finally Gets Access To Treasury Payment Systems

It was one of the earliest and most abusive rulings in the lawfare against the Trump administration.

At 1 a.m. Saturday morning, February 8, 2025, an ex parte emergency injunction was issued by the emergency duty judge in the Southern District of New York that by its terms effectively decapitated the leadership of the Treasury Department from access to department payment systems.

We covered the story at the time, Judge Issues Emergency Order Halting DOGE Access To Treasury Payment Systems:

U.S. District Court Judge Paul Englemeyer in the Southern District of New York, serving on the court’s emergency docket (there’s always a judge available), has granted an emergency temporary injunction to the State of New York and over a dozen other blue states putting on hold the access that U.S. Treasury Department Secretary Scott Bessent had given to DOGE (the Department of Government Efficiency) to Treasury payment systems as part of Trump’s effort to locate and eliminate waste and fraud….

It was an unusual procedural context. I’ve reviewed the court’s electronic docket, and it appears to have been ex parte. There’s no indication of notice to the government and opportunity to be heard before the Judge ruled. The procedure was a Proposed Order To Show Cause including a Temporary Restraining Order. It’s the type of procedure used in only the most extreme emergencies (the OSC is not unusual, but including an ex parte TRO is unusual).

What was the emergency that couldn’t wait until the next day for the government to have a chance to be heard?

It was a Friday night move to deny access that, by the papers submitted, had been going on for over two weeks. The 60 page Complaint, and 40 Page Memorandum (plus a short Affirmation) obviously took a long time to prepare, arguing against an emergency so dire and time sensitive on a Friday night the court couldn’t even wait until the next morning for the government to be heard. It also reeks of judge shopping, because plaintiffs would have known who was the emergency duty judge so by going in on a Friday night they evaded the normal random assignment system for this purpose.

Whatever the ultimate merits, depriving the Secretary of Treasury of the ability to run the Department of Treasury as he deems proper is not something that should have been decided this way, even temporarily. I understand that litigants play these games, but it’s a bad look that damages faith in the judiciary when a court allows it….

As others have pointed out, as worded, this would appear to bar Bessent himself from access to these systems even though he is the Treasury Secretary, because he is a “political appointee.”

The case is on for hearing next week in front of a different judge, Jeannette A. Vargas, one of Biden’s last appointments. I don’t think the ruling survives very long, and Musk still is working out the details of how to track fraud and waste.

The Trump administration quickly moved To Dissolve “Impermissible and Anti-Constitutional” Weekend TRO Against Treasury:

It’s worse than I thought. In an Emergency Motion to Dissolve the TRO, filed early this morning, the Trump administration demonstrates not just the legal impropriety of the Judicial Branch removing political control from the Executive Branch, but also that there was no widespread access by political appointees. The Emergency Motion only addresses the removal of authority from political appointees, the underlying merits will be addressed in papers in opposition to the plaintiffs’ overall motion….

There was no emergency. There was no threat to personal information. There was none of the drama the plaintiffs’ motion papers invoked and the emergency duty judge used to justify the political interference by the judiciary in the functioning of the Treasury Department.

The following Tuesday, Judge Vargas Partially Modified Ex Parte Treasury TRO – Only Senior Officials Restored To Access and several days after that Granted Preliminary Injunction Limiting Treasury Access To Treasury’s Payment Systems in which in which she effectively continued the terms of her prior TRO (which scaled back the initial ex parte emergency TRO):

“For the reasons stated herein, Plaintiffs’ motion for a preliminary injunction is GRANTED. The preliminary injunction substantially tracks the terms of the temporary restraining order (“TRO”) that is presently in place, in that it bars the Treasury Department from granting access to any member of the DOGE team within the Treasury Department to any payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees. But Plaintiffs have not demonstrated that they are entitled to the broad and sweeping relief they seek, which would far exceed the scope of the present TRO to prohibit members of the DOGE team from developing automated (or even manual) processes to halt payments coming through Treasury Department payment systems. The remedy in this case must be narrowly tailored to redress the specific harm asserted by the Plaintiffs: the threatened disclosure of the States’ sensitive bank information contained in the Treasury Department’s payment systems. Plaintiffs’ proposed preliminary injunction order is anything but narrow.

Additionally, the duration of the preliminary injunction also has the potential to be limited in scope. The Court is providing Defendants with an opportunity to promptly cure the procedural defects relating to the protection of sensitive and confidential information that the Court has identified in this Opinion. Should Defendants do so, the Court will determine whether termination or modification of the preliminary injunction is warranted.”

These rulings and others early in Trump 2.0 inspired this statement from me:

Late yesterday, May 27, Judge Vargas entered a Memorandum and Order rejecting the government’s motion to dissolve the preliminary injunction, but granting DOGE access to Treasury payment systems provided the persons involved went through various trainings:

On May 1, 2025, Defendants moved to dissolve the preliminary injunction.
ECF No. 141. Defendants submitted additional declarations in support of their
motion. ECF Nos. 143-147. These declarations established that the current
members of the Treasury DOGE Team—which, in addition to Wunderly, consists of
Thomas Krause, Linda Whitridge, Samuel Corcos, and Todd Newnam (collectively,
the “New DOGE Employees”)—had been subjected to the same vetting as other
Treasury employees, had received the same training as Wunderly, and would be
subject to the same mitigation procedures. ECF No. 142 at 6-11. Defendants aver that any future member of the Treasury DOGE Team will be subject to the same
vetting, training, and mitigation procedures. Id. at 8-12.

Plaintiffs acknowledge that Defendants have made substantively the same
showing with respect to the New DOGE Employees as they did for Wunderly. ECF
No. 151 at 3. Accordingly, in light of the Court’s PI Modification Order, Plaintiffs do
not oppose modification of the PI Order to grant access to the New DOGE
Employees. Id. Plaintiffs do oppose, however, the wholesale dissolution of the PI
Order. Id. at 7….

Plaintiffs have established their entitlement to injunctive relief pursuant to
Rule 65. As such, Plaintiffs are not obligated to simply rely on Defendants’
assurances that they will continue to comply with the practices that have been put
in place in the absence of a mandate from this Court. Yet there is little utility in
having this Court function as Treasury’s de facto human resources officer each time
a new team member is onboarded.

To meet both these sets of concerns, the Court hereby modifies the PI Order
as follows:

ORDERED that, pursuant to Rule 65 of the Federal Rules of Civil Procedure,
the United States Department of the Treasury and the Secretary of the Treasury
are restrained from granting access to any Treasury Department payment record,
payment systems, or any other data systems maintained by the Treasury
Department containing personally identifiable information and/or confidential
financial information of payees (collectively, the “Treasury Payment Systems”) to
any employee, officer or contractor employed or affiliated with the United States
DOGE Service, DOGE, or the DOGE Team established at the Treasury Department
(“Restricted Personnel”), pending further Order of this Court, PROVIDED THAT
these restrictions on access to Treasury Payment Systems shall not apply to any
Restricted Personnel that (i) have undergone the training forth in ECF Nos. 98-1,
(ii) have been subject to the same vetting
requirements as applied to other Treasury employees provided access to such data
systems, as set forth in ECF Nos. 98-4 and 145; (iii) are subject, at a minimum, to
the mitigation procedures set forth in ECF Nos. 34 and 98-2 ¶¶ 18-19; (iv) are
employees of the Treasury Department hired in accordance with governing statutes
and regulations; and (v) are supervised by, and directly report to, Treasury
Department officials (collectively, the “Training, Vetting and Mitigation
Procedures”)….

For the
avoidance of doubt, however, Defendants are not required to obtain a judicial
determination that a particular individual has satisfied the Training, Vetting and
Mitigation Procedures before such person may be granted access to Treasury
Payment Systems.

To while the Judge says she doesn’t want “to function as Treasury’s de facto human resources officer,” that is in fact what she did for three months, and she’s issued a diktat that will continue to serve as a human resources order.

2/2 Instead, Court enters order mandating certain training before access provided. Strange. I don't remember the APA giving a judge that authority. pic.twitter.com/omAOE2g07O

— Margot Cleveland (@ProfMJCleveland) May 27, 2025

This is being reported in the media as some big Trump victory. It’s not. The executive branch improperly was deprived of the right to run the Treasury Department the way it wanted for three months. That’s three months it can never get back.

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