Sunday, February 2, 2025

Contracts? We Don't Need No Stinkin' Contracts

I don't know how widely known the financial side of Trump and Musk's coup has become. They roll something out, then seem to roll it back, but not really, and meanwhile some other aspect is being enacted by incompetently written executive order.

Last Friday and over the weekend, Musk and his henchmen took control of the payment systems at the Treasury Department, which were previously accessible only to a very small number of highly vetted career employees. Muskites also took over the servers at the Office of Personnel Management.

I saw many posts and threads about this, but two stood out to me.

One was from Jesse Jenkins late Friday, assistant professor at Princeton and a highly regarded voice in clean energy engineering:

Everyone seems to be framing Trump's freeze on federal grants as a Constitutional fight over powers of the purse and whether presidents can disregard Congressional appropriations. It is that. But also at stake is the fundamental validity of government contracts!

Trump isn't just trying to impound appropriated but unobligated funding. He's frozen dispersement of billions of dollars of CONTRACTUALLY OBLIGATED funds. Whatever you think about the validity of impounding unobligated funds, this is quite clearly a direct and widespread violation of contract law.

While the courts forced Trump's OMB to revoke its across-the-board freeze on ALL federal assistance (grants, loans etc), the White House continues to forbid dispersement of obligated funds for various programs they just don't like, including clean energy, anything that smells of DEI, foreign aid etc.

It should be obvious, but let's be clear: if a new president can arbitrarily nullify existing federal contracts, they aren't real "contracts" at all and they aren't worth the paper they're printed on.

If President Trump is permitted to carry through with this behavior, without clear censure by the courts, it would fundamentally damage, if not outright destroy, the government's ability to do much of anything!

Want to hire someone to build a highway? Feed a military base? Conduct cancer research? Develop a new fighter jet? Forget about it! Why would they trust you to pay up if a president can just cancel your contract or refuse to pay up at any time for no other reason than they just don't like it?

I really hope the reality of this sinks in and that the press and others start to narrate what is happening here. Trump and Vought are destroying trust in an essential function of the government: the ability to credibly enter contracts to achieve any and all public purposes. That's really bad.

The other was overnight last night by Josh Marshall of Talking Points Memo:

Several conversations today with people in the key executive departments. And while the particulars are hard to pin down my impression is that the Musk takeover stuff is considerably worse than is being presented in the press. By this I don’t necessarily things they've *done* yet but the level they already have over key computer systems, payment systems, etc.

The stuff about the Treasury payments systems and control over certain computer networks has been reported. It’s more putting together the big picture about how different pieces fit together.

There also seems to be a significant amount of downloading government data onto private servers, totally outside any cybersecurity regime. Additionally it’s unclear to the people inside whether the people doing these things actually work for the US government… who they are, whether they’re even American citizens. They all seem to be Thiel and Musk protégés. And I’ve had multiple references to their refusing to identify themselves by anything but first name. The rationale given is that they could be doxed.

One additional point and to be clear this latter stuff isn’t from my reporting just pieced together from other reports and what Musk is saying himself. They’re into the treasury payment system and claiming they’ve already found like $4B in “savings” a day.

It’s important to know what this means. This is simple his DOGE team reviewing the US federal budget, law of the land and deciding which parts aren’t necessary. It sounds like they’re saying they will unilaterally cut these funds with control over the check writing at Treasury.

They’re not saying that last part explicitly but that’s certainly the logic of what they’re saying. (Go look at his tweets over the last two days). So a group of Musk protégés seem to be overruling the US federal budget. Impoundment by the president is illegal. It’s hard to think through the levels of illegality having a group of people who don’t even seem to be US government employees doing it.

Which takes us back to Jesse Jenkins' point about contracts.

And then there's one final topper, made today from journalist Radley Balko:

Just a reminder that Musk couldn’t get a top level security clearance. And he was under investigation for violating the terms of the clearance he did have. Now he has your Social Security number, your tax returns, and is unilaterally deciding who the government does and does not pay.

 

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