Accountability for Elon, Emil, and Ed

And some lighter Friday fare

Well, we made it through another week. Only 205 more to go.

We had our first Substack Live this week with Steve Vladeck, discussing the first Trump 2.0 case to reach the Supreme Court. I think it was quite a success, and I personally really enjoyed it. Look for a lot more where that came from.

Is it legal? The firing of the special counsel

We wanted to lighten the mood a bit this Friday with our latest "Caption This" contest, derived from the Talking Five feature in our podcast. We announce the winner of the latest contest and serve up another for everyone to try their luck and compare their answers to the off-the-cuff offerings of our roundtable participants.

Then, I close out with short accounts of where efforts stand to bring a measure of accountability to the legally suspect mischief (to put it mildly) of Elon Musk and DOGE; Emil Bove, who strong-armed the motion to dismiss the Eric Adams case; and Ed Martin Jr., Donald Trump’s nominee for United States Attorney for the District of Columbia, the biggest single office in the Department of Justice.

Caption Contest Winner

Thanks to everyone who sent in submissions for our last "Caption This" contest! The contest builds on our Talking Five episode-end feature, and a recent episode in which we asked our guests to surmise what Trump was whispering in Melania’s ear during their much-photographed dance at an inaugural ball.

We saw plenty of sharp entries—some leaning heavily into scatological humor (per usual), others tiptoeing toward death wishes, and quite a few dissecting the finer points of the Trump prenup.

If you want to know how our roundtable guests—Susan Glasser, David Jolly, and Bill Kristol—answered the question with mere minutes of advance warning, check out the link to F**k it: Release ‘Em All at the 50:12 mark.

The photo of Donald and Melania was of the pair swaying to My Way—but let’s be honest, the real anthem of the night was Vladimir’s Way.

And with that, congrats to Andy T for the winning caption: We did it Vladimir’s way. A member of our team will be in touch soon to send you your Talking Feds mug.

New Caption Contest

And here’s a new round of our Five Words or Fewer contest.

This time, we want your most pithy and Talking Feds-coded response to this question:

Donald Trump is now chair of the Kennedy Center for the Performing Arts. So… what’s the next big performance at the Center?

It’s the actual question we served up to our guests Alisyn Camerota, Norm Ornstein, and Jacob Weisberg. You can check out their answers at the 50:35 mark in our recent episode "Not Anything Any of Us Ever Expected to See in America." Link here.

Drop your best five-words-or-fewer answer here for a shot at the highly coveted Talking Feds mug!

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A Few Legal Updates and Summaries

1. A Brief Primer on Litigation Involving Elon Musk

I haven’t written much about Elon Musk, who has been the subject of a lot of recent litigation—much of it overlapping, some of it, in the opinions of district courts, a little premature. I think a lot of us have followed the legal twists and turns in too much detail, and a lot of us in too little. I thought it might be helpful to briefly sketch out and summarize the current legal landscape in thumbnail form for everyone. It’s labyrinthine, but it can be simplified quite a bit for purposes of taking stock of what’s happened and what’s on the horizon.

There are three main kinds of claims directly concerning Musk among the 60+ lawsuits against the administration. Many have been brought by consortiums of Democratic state attorneys general, which in itself may raise a legal issue of standing. The lawsuits allege violations of:

1. The Federal Advisory Committee Act (FACA), on the grounds that advisory committees must have open and accessible meetings and a balanced representation of viewpoints.

2. Potential violations of restrictions on disseminating sensitive information, especially under the Privacy Act, based on DOGE’s access to all manner of citizens’ private data.

3. Violations of the Appointments Clause in Article II, based on a functional analysis of Musk’s broad power and authority.

Very generally, and oversimplifying again to give you a quick summary of what’s happening:

1. Three of the FACA lawsuits were assigned to D.C. District Court Judge Jia Cobb, and the government has moved to consolidate them. The fourth is with former D.C. Chief Judge Beryl Howell. They are all pending.

2. Judges in the Privacy Act lawsuits have generally refused to enjoin DOGE and Musk from disseminating information, ruling that there is currently not enough of a showing of immediate harm. The rulings hinge on the idea that the unauthorized possession of sensitive information by someone in government is not itself a Privacy Act violation. In one case, Judge John Bates appears poised to grant limited discovery to allow plaintiffs to better argue that there’s a real risk of unlawful dissemination.

3. The Appointments Clause challenge relies on a constitutional provision normally favored by conservatives—concerning the circumstances under which certain executive branch officials ("principal officers") must be nominated by the president and confirmed by the Senate. Several courts have suggested that the claim has merit. If adopted, this argument could be a broad attack on Musk’s presence in the government and on every action he’s taken to date.

In brief, both the FACA claims and the Appointments Clause claims should go to trial and may well succeed at the district court level, after which the questions will move to appellate and Supreme Court review. The privacy claims will depend on a more concrete demonstration of a risk of improper dissemination.

Finally, it’s worth emphasizing that the Administration has been speaking out of both sides of its mouth when it comes to Musk. In public, Musk appears more powerful than anyone in government except Trump himself, who repeatedly touts Musk’s accomplishments and authority. Moreover, the White House has forcefully ordered agencies to grant him access and authority. But in the actual court cases, DOJ lawyers have strained to portray him as a mere informal advisor—kind of a friendly uncle with the president’s ear. At least one judge has warned the DOJ that this characterization is not credible. Drilling down to the real facts about his role will be a big theme of the cases.

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2. Judge Ho Appoints Paul Clement in Adams Case Involving Emil Bove

I have written at length, and will write again, about the Thursday Night Massacre and its aftermath, which I have characterized as the worst assault on DOJ attorneys’ integrity and professionalism in the Department’s history (read more here).

Thursday Night Massacre II

Federal Judge Dale Ho convened a hearing this week in his New York courtroom to consider whether to grant the DOJ’s Rule 48 motion to dismiss the case against Eric Adams. The motion followed a repugnant episode in which Acting Deputy Attorney General Emil Bove tried to strongarm career prosecutors into dismissing the case, notwithstanding his acknowledgment that it was a solid case under the facts and the law, the normal cornerstones of DOJ practice. Bove’s bullying led to multiple resignations by prosecutors who believed that complying with his demands would violate their oaths to the Constitution and their duty to impartial justice.

Ho conducted a hearing this week, which ended without a ruling. A group of distinguished former U.S. attorneys has now submitted a letter to Judge Ho urging him to appoint counsel to argue against the motion, since both the DOJ and Adams support dismissal. While Ho has little room to refuse the dismissal ultimately, he has broad discretion to scrutinize the basis for the motion and to determine whether dismissal serves the interests of justice.

And just this afternoon, Judge Ho, acting pursuant to his inherent authority, appointed the former Solicitor General and extremely well-respected appellate lawyer Paul Clement (I have litigated against him, and he is top notch) as amicus curiae to present arguments on the motion, presumably those that the government and Adams, who are on the same page, have not presented. Clement’s appointment also might suggest that Ho would like to develop additional evidence, which would be a bad development for Bove.

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3. The Troubling Case of Ed Martin Jr.

And that brings us to the final brief topic of the week: the talented Mr. Ed Martin Jr., whom Trump has nominated to lead the largest U.S. Attorney’s Office in the country, the Office of the District of Columbia. Martin’s qualifications and experience are threadbare at best—he has primarily been a political operative in Missouri and is at least the only nominee for D.C.’s U.S. Attorney in 50 years without prosecutorial or judicial experience.

Far more troubling, his main claims to fame are election denialism and financial and legal support for January 6 insurrectionists, including at least one he represented and who was convicted. (See Brad Heath, Sarah N. Lynch, and Andrew Goudsward, "Top Trump prosecutor in DC dropped federal cases against Capitol rioter he represented," Reuters (Feb. 5, 2025).)

Since becoming interim U.S. Attorney, Martin has been pursuing a reprisal agenda within the office, proposing to investigate the conduct of attorneys involved in the January 6 prosecutions—which, after all, were the biggest set of investigations in the department’s history. He has also suggested that the office acted improperly following the Supreme Court’s Fischer decision, which invalidated one of the key theories of conviction for January 6 defendants.

Most recently, he has been sending letters to members of Congress on his own authority, suggesting that he plans to investigate statements they have made about the need to fight for democracy as potential crimes.

I can unpack this all at length, but in brief, as an alumnus of the department and a former U.S. Attorney, I can report that from what we know, Martin’s tenure to date is one ethical problem after another. Given his professional experience supporting the January 6 insurrectionists, Martin should be nowhere near the cases he has made the hallmark of his tenure.

The DOJ’s Office of Professional Responsibility (OPR) is charged with investigating allegations of professional misconduct involving DOJ attorneys. Today, we learned that a letter has been sent to OPR outlining Martin’s possible conflicts of interest and requesting an investigation. It will be a strong indicator of whether OPR continues to function in the new DOJ—or whether it has been neutered like so many other oversight institutions in the Executive Branch.

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Enjoy the contest; stay informed; and call out the lies.

Talk to you later.