Suing to stop the Trump-Musk coup
The point of this post is to offer some explanation of a lawsuit filed yesterday, February 3, Alliance for Retired Americans v. Bessent. The case may slow or stop Trump and Musk from implementing a constitutional coup, though from its title it might seem otherwise. The named defendant is Scott Bessent, in his capacity as Secretary of the Treasury. The plaintiffs are two unions and a civil society association devoted to retirees' interests and two unions. They are represented by two cause law firms: Public Citizen Litigation Group, which is dedicated to consumer protection and State Democracy Defenders Action, dedicated to good government. The suit seeks to enjoin Bessent from continuing to give Musk and his minions personal and financial information about millions of Americans and to require the Treasury Department to remediate the damage already done.
The complaint is exceptionally well done, which is not surprising given the caliber of the attorneys representing the plaintiffs. They are experienced cause lawyers. One of key things they did was to select the right plaintiffs. In a situation like this, where wrongful conduct injures millions of citizens/taxpayers, courts focus on whether the parties suing have standing, that is, whether they have suffered discrete, identifiable harm. This is because courts define a controversy as suitable for litigation – as opposed to resolution in the legislature or at the ballot box – only if the aggrieved party has suffered a particularized, identifiable harm, one that distinguishes it from the mass of people who are simply opposed to the governmental action. By making two unions and a retirees' association the plaintiffs, the Public Citizen and Democracy Defenders attorneys have selected organizations with a specific responsibility to protect workers and retired workers from invasion of privacy due to mismanagement of information members of the workforce must supply to the IRS and the Treasury Department for tax purposes and to qualify for Social Security. This distinguishes these plaintiffs from the aggregate mass of citizens or taxpayers; these groups have a defined mission and track record as protectors of specific groups of workers.
While the complaint focuses on Bessent's conduct, it straightforwardly goes after the Trump-sponsored Musk takeover of the Treasury Department's data and payments systems, a major part of the more general effort by Trump to have the Musk-led DOGE take over numerous federal agencies, including the Office of Personnel Management and USAID. That's the overall constitutional coup. The complaint in Alliance for Retired Americans very skillfully identifies the operational component that can be litigated as particularly harmful to American workers, past and present.
The complaint zeroes in on how Bessent specifically instructed Treasury Department officials to give Musk and his team access to statutorily protected information about individuals.
In his first week as Treasury Secretary defendant Bessent violated these [privacy laws]. Elon Musk and/or other DOGE members had sought access to the Bureau’s records for some time, only to be rebuffed by the employee then in charge of the Bureau. Within a week of being sworn in as Treasury Secretary, Mr. Bessent placed that civil servant on leave and granted DOGE-affiliated individuals full access to the Bureau’s data and the computer systems that house them.
There are statutes that make it generally unlawful for the Treasury Department and the IRS to disclose individuals' personal and financial information. These laws – along with the Administrative Procedure Act (APA), which applies to all federal agencies – provide for limited disclosure under exceptional circumstances, but never without advance publication and justification from the agency and an opportunity for public comment on the advisability of the proposed measure. Bessent did none of this. Again from the complaint:
He [disclosed individuals' personal and financial information] without making any public announcement, providing any legal justification or explanation for his decision, or undertaking the process required by law for altering the agency’s disclosure policies.
If the plaintiffs prevail, the Treasury Department and the IRS will have to stop giving DOGE access to these agencies' payments systems and to data collected by them. This would drastically scale back the DOGE takeover of the systems and the data. Bessent and other Treasury Department and IRS workers might still do whatever Musk and DOGE tell them to, but there would be much less Musk and DOGE staff can simply just go ahead and do themselves. That's the way this lawsuit may disrupt this part of the Trump-sponsored Musk takeover of the federal government.
It is impossible to predict how the lawsuit will fare as it proceeds through the judicial system. Much depends on whether it is heard by a competent trial court judge with integrity and then on the competence and integrity of the appellate courts that review any trial court decisions appealed by either side. But a lawsuit like this has substantive law, accurately and cogently deployed by the plaintiffs' attorneys on its side. Defending the suit will consume Bessent's and DOJ's time and energy. The plaintiffs may quickly win at least a temporary halt to the Musk-DOGE access to the Treasury Department's payment systems and associated data. Even if the halt is only temporary, the overall coup is impeded while it is in effect.
Alliance for Retired Americans demonstrates how the constellation of cause lawyers, civil society collective groups, and unions is going to be very important going forward. This is the sort of combination that can use the courts to gum up the ongoing constitutional coup Trump and Musk are engineering.
Working together, lawyers experienced and dedicated to securing legal protections for workers and consumers, lawyers knowledgeable about the details of the myriad laws that provide this, and already existing associations and unions who stand for workers and for consumers have the bandwidth to pursue judicial remedies against the Trump regime. More broadly, civil society organizations and the lawyers who can competently advise them, will be key to defending U.S. democracy against Republican Fascism.