☕️ UNENJOINED ☙ Thursday, February 13, 2025 ☙ C&C NEWS 🦠

First Trump TRO falls as judge nixes stay; types of injunctions; economy conspiracy theory becomes fact; Tulsi Gabbard confirmed; EPA axes Politico subsidies; Kristi Noem claws migrant eyes; more.

Good morning, C&C, it’s Thursday! Thanks to yesterday’s mega-post and a busy office schedule today, I will quickly hit the high points this morning and save some powder for tomorrow. In the roundup: the first Trump TRO to encounter a REAL hearing falls as judge un-suspends DOGE’s early retirement option; an explainer on the mysterious world of injunctions; another conspiracy theory becomes fact as government data shows economy under Biden was not, as claimed, particularly great; Trump’s new director of national intelligence assumes her post; EPA axes pricey Politico subsidies; and Kristi Noem claws the eyes out of migrants’ luxury accommodations.

🌍 WORLD NEWS AND COMMENTARY 🌍

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One down! The New York Times, gritting its teeth, ran the story yesterday, headlined “Trump’s Federal Resignation Program Moves Ahead After Court Win.”

Last Thursday, federal labor unions challenging Trump’s “fork in the road” —a voluntary early retirement plan for federal workers— sought and obtained a temporary restraining order to freeze the Administration’s plan. But yesterday, after a Monday hearing, Massachusetts Judge George O’Toole found the unions lacked standing and the court lacked subject matter jurisdiction over the claims.

Judge O’Toole, a Clinton appointee, was undoubtedly aware of the case’s vast public interest and the inevitable scrutiny, and wrote a thoughtful and well-reasoned five-page order. I’ll paraphrase. First, Judge O’Toole said, hey, the unions aren’t facing the Fork Directive since they aren’t executive branch employees. So the policy doesn’t harm them. Second, federal employees enjoy elaborate, hideously complicated administrative procedures that must first be fully exhausted before a district court can hear the case.

So the judge dissolved his February 6th temporary injunction. Honk, honk.

🔥 At the risk of putting Portland readers to sleep, given our current lawfare climate, let’s try to de-mystify the various kinds of injunctions. Injunctions, as you may have intuited, are just a type of court judgment in which, instead of awarding money, the court orders somebody to do something, or to stop doing something. For instance, down at the county court level, the judge could order you stop shooting your neighbor’s speckled pig with your bb gun and return their casserole dish.

Higher-profile injunctions usually don’t involve literal swine. But they do often involve the government. During covid, I sued various levels of government to “overturn” ordinances and statutes related to different kinds of mandates. The reason I quoted the word “overturn” is because it’s more accurate to say the court orders the government to stop enforcing the ordinance or statute. But saying overturn is simpler, albeit imprecise.

Plaintiffs can get injunctions at three stages. So right away, we have three basic legal types: the temporary injunction, the preliminary injunction, and the permanent injunction. It’s important to understand these three types, because they have very different significance.

🔥 Temporary injunctions, like most of the ones issued last weekend, are the most annoying but least threatening type of injunction. They are meant to handle true emergencies. On-call “duty judges” (the unlucky judge holding the pager that day) can even hear emergency cases in the middle of the night.

Vexingly, it is not even required for the adverse party to attend the hearing on the injunction that will bind them. And it’s a lightning-fast proceeding that the judge may even hold on a single phone call.

Because of the rush of emergency events, TIs are the easiest type of injunction to get. Consider the scenario: The judge is sitting in his own bed, having just applied his facial creams and ointments, arguing with his wife over who left the remote control in the living room and so who should go get it. Just when he thinks he’s talked her around, his duty pager beeps. Ugh, he thinks, pulling off his plastic lotion gloves to answer. Now what?

TIs are supposed to be rare and hard to get. But when a fast-talking, persuasive lawyer explains the sky is falling, judge, the poor magistrate starts wondering whether he will get any sleep tonight and thinking about tomorrow’s busy docket. After his wife angrily waves in sign language to take that somewhere else, he reluctanly hauls his phone and pen to the dining room, thinking, in the back of his mind, dammit I could have gotten the stupid remote myself at this rate.

You can see how last week’s TIs could easily come into being. Add to the tiresome scenario above a liberal helping of progressive politics to which the judge is profoundly sympathetic, a heaping tablespoon of Trump derangement, all mixed into the broad discretion judges have to handle true emergencies, and well, it’s baked in that a lot of unnecessary TROs could slip through.

While getting a TI gives a lawyer a brief moment of relief, it also tees up the hard part. The clock starts ticking loudly. One of the safeguards is that, under well-settled law, TIs shouldn’t last more than a few days before expiring. In my practice, ten days seems about average.

Judge O’Toole issued his TI on February 6th— so it only lasted for seven days.

But before the TI runs out, the judge must hold, and the lawyers must put on, a full hearing for a preliminary injunction. Judge O’Toole held his preliminary injunction hearing on February 10th —four days after the TI issued— and as we saw, yesterday he dissolved it, denying further relief.

You have to admit that’s pretty fast, especially for the normally glacial legal system.

🔥 In cases against the government, a preliminary injunction, or “PI”, is the gold standard. If you can win that, the government usually gives in, for reasons I’ll explain shortly. The first difference between a PI (preliminary injunction) and a TI (temporary injunction) is the PI’s much higher standard. The PI requires proving the four famous elements we’ve discussed before from time to time.

The two hardest elements to prove, the ones that give lawyers nightmares, are the two “likelihoods”: the likelihoods of success on the merits and of irreparable harm. To win a PI, you must prove that it’s more likely than not you’re going to win the whole case, and that there is no other remedy that could conceivably prevent the looming harm— including after the fact.

Proving that is a lot harder than it looks. For instance, you might think getting fired, say for expressing your First Amendment rights by wearing a neon pink MAGA hat at work, is irreparable harm justifying an injunction. But courts disagree. A year from now, when the case is over, the court could cure any injury by ordering your boss to re-hire you and pay a year’s back salary. Thus, not irreparable.

Since money fixes many problems, it can be devilishly hard to prove the element of irreparable harm. Fortunately, government cases are slightly easier, since violations of constitutional rights are presumptively irreparable. So that’s good.

But even with that help, you still have to prove you’re likely to win, which is the hardest element to prove of all.

Due process requires proving that challenging element must occur promptly, at the dreaded preliminary injunction hearing. I say “dreaded” for two reasons: the stakes and the work. First, the stakes are sky-high. Practically speaking, if you lose the PI hearing, you are bound to lose the case. (I suppose it is possible to recover after a judge finds you’re not likely to win, but that’s a deep, dark hole to dig the case out of.)

Second, the work is insanely demanding. In normal commercial cases, I tell clients it could cost $50K to $100K just to try to get a preliminary injunction. In cases involving novel, complex, or difficult issues, it can be even more expensive and time-consuming.

Why? To prove you’re likely to win, you basically have to put on a miniature trial, with evidence, documents, witnesses, maybe even preceded by rapid-fire depositions and lightning-round paper discovery. Instead of having years to prepare for a trial, you only get a few days to prepare for a PI hearing. Instead of getting weeks to put on a real trial —which is hard enough— in a PI hearing, you might only be given four hours to put on your “mini trial.”

Here’s a decent example. In my very first covid-mask case in May, 2020, the trial judge only gave me an hour for my preliminary injunction hearing. I had to split that hour with the government. In other words, I got only thirty minutes to prove I was likely to win a case in a novel, science-heavy setting amidst the early panic of the pandemic. (Of course, given that awful setup, I lost, but I wound up winning on appeal.)

Preparing to argue a complex constitutional case about mask science, which nobody still understands, in only thirty minutes, required round-the-clock preparation every single day, weekend included, before the hearing.

But if you win a PI against the government, you usually win the case. The government almost always backs down at that point, for two reasons. First, it’s impractical to have an ordinance or statute enjoined for an indeterminate amount of time, hanging out under a cloud of unconstitutionality. Second, having ruled you are likely to win, the court implicitly rules that the government is likely to lose, and the government normally prefers avoiding that risk.

Thus, the preliminary injunction hearing is where the rubber hits the road, where the legal theories are tested and the evidence is evaluated. It is grueling, demanding, and very tough to win—much harder than at the TI stage. For the same reason, PIs are much easier to defend, which is still painful and expensive due to the short time frames. (Last year, for example, we handily defended James O’Keefe from Project Veritas’ effort to get a PI against him to stop him from reporting and fundraising).

It is called a preliminary injunction because it normally expires at the end of the case. Which brings us to the third type.

🔥 You hear much less about permanent injunctions. This kind of injunction is a standing order issued by a court that lasts forever or until certain conditions occur. Someone might be ordered, for example, to stay off Facebook until they remove awkward photos of their school board members bending over to pick things up.

Courts normally grant permanent injunctions as part of a final judgment after a full case and a trial. So, theoretically, even if you lost at the preliminary injunction stage at the outset of the case, you could still, in theory, get a permanent injunction at the eventual trial—but the deck is stacked against you.

Permanent injunctions are a more common feature of commercial cases, like when Apple sues some high school student to stop him from making free adapters so people can use their old headphones or something.

To recap: the Temporary Injunction is the easiest to get, but lasts the shortest (only until the PI hearing). The Preliminary Injunction (PI) is the hardest to get, but usually wins the whole case when litigating against the government. The Permanent Injunction is what litigants achieve after winning the entire lawsuit— after a full, normal trial.

Last week we witnessed sympathetic courts issue a bunch of (relatively) easily obtained TIs. Good for them. Now, the plaintiffs must put on their PI cases, and the legal rubber will start hitting the wacky lawsuit road, like it just did yesterday in Judge O’Toole’s decision. Most judges, even partisan ones, will stretch only so far. There will be exceptions, of course, which is what appellate courts are for.

Think about it like this. A lefty, partisan judge who has broad discretion is under a lot of pressure from his peers to issue the temporary injunction, since the judge doesn’t want to be seen as rolling over for the Trump Administration. But crawling out on the preliminary injunction limb includes much more risk of an embarrassing reversal.

The rubber is starting to hit the TRO road.

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Now they tell us. Politico ran a “magazine” piece on Tuesday penned by former Comptroller of Currency Eugene Ludwig, bearing the astonishing headline, “

Voters Were Right About the Economy. The Data Was Wrong.” Oh, dear. Worse, the headline editors affixed what appears to be a photo of grocery shoppers in Thailand. In other words, it’s a story about government misinformation capped with a misinforming media photo. Brilliant.

Being short on time, suffice to say that Mr. Ludwig gently explained that, in fact, the Biden economy was just as bad as we all knew it was, if not worse, but “erronous” government data —disinformation— consistently concealed the bad news, and credulous media lapped it up like half-starved wire terriers tearing into a ripped-open bag of kitty treats.

An independent media, they constantly remind us, until we’re nauseated by hearing about it, is critically important to our democracy. I happen to agree with that principle. It’s a shame we don’t have an independent media.

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The Washington Post ran a terrifically encouraging story yesterday headlined, “Tulsi Gabbard sworn in as Trump’s director of national intelligence.”

Welp. There it is. It is Trump’s genius to nominate Cabinet heads who hate the agencies they have been appointed to re-engineer. Tulsi, for instance, was hounded by the deep state, who put her on the dreaded “Quad-S” travel list, which requires invasive (ahem) “enhanced” screenings and a mandatory DEI airport escort.

It means you have to get to the airport five hours before your flight for a painful, unnecessarily intimate, and socially awkward experience. They did it to her over and over. I’m sure she isn’t feeling resentful.

Why did they brand Tulsi with four scarlet S’s? National security, that’s why, so shut up. It’s classified! Need to know! Never mind! Follow the science!

The most explanation anyone has ever gotten is that it was because of Tulsi’s suspicious travel schedule. Yeah, okay. More likely, it’s because Ms. Gabbard knows all about the deep state’s biolabs in Ukraine and has chatted freely about them. Will she declassify the embarrassing biolab files? She’s got a lot of leverage. Maybe she should hold onto that leverage until the exact right moment when the pain would be greatest. Counter leaks.

Sigh. You’d think Democrats would be happy. Tulsi is not a Republican. She is a former Democrat and now an independent. And she wasn’t just any random Democrat. She was in leadership. In 2016, she resigned as vice chair of the Democrat National Committee — protesting its oleaginous treatment of socialist Bernie Sanders, and she promptly endorsed Bernie for president.

But she is a wrong thinking Democrat, mostly because she is a patriotic veteran.

Yesterday, Bernie, that Rat Fink, unsentimentally voted against Tulsi’s confirmation, despite her support for him last time around. Mitch McConnell also voted against her. But of course he did.

As good as this news was, it was even better news for the pending confirmations of Kash Patel for FBI and Robert Kennedy, Jr. for HHS. If the deep state couldn’t kill Tulsi’s confirmation, then things just got a lot easier for Patel and Kennedy. Let’s go.

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In a story unsurprisingly not covered yesterday in corporate media, newly confirmed EPA head Lee Zeldin announced on X that he was canceling the agency’s obscenely expensive Politico subscriptions:

It’s anybody’s guess why the EPA needed Politico subscriptions totaling a half mil a year, which, for Portland readers, totals to an incredible $5 million every ten years. For news subscriptions! From one paper! At the Environmental Protection Agency. Puhleease.

Sorry, Politico, it looks like your gravy train broke an axle. That’s going to be expensive.

I’ve still not fully wrapped my head around this covert media influence operation disguised as ‘professional’ news subscriptions. If better quality news is available, why not run the best quality news in the public paper? What about conflicts of interest? Why has Politico never disclosed the apparent conflict? What other media is lapping up cash from our 1099 payments?

Either way, Politico must have always thought it would be safely protected, even if Republicans —who it always trashes in its biased coverage— might eventually take charge of the U.S. government. Think about that.

They didn’t think we’d find its patronage slush fund buried in the vast unaudited budget. Thanks, DOGE!

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The federal government is being introduced to a shocking new concept called accountability. The Associated Press ran a terrific story yesterday headlined, “4 FEMA employees are fired over payments to reimburse New York City for hotel costs for migrants.” The headline referred to the $59 million payment sent to luxury New York City hotels to provide long-term migrant housing at double rates and 100% occupancy— for free to the illegal migrants!— even while LA County and North Carolina citizens are still living in tents. And it violated Trump’s direct order to suspend those very payments.

It went all the way to the top. The terminated employees included FEMA’s chief financial officer, two program analysts and a grant specialist. Even better, it didn’t work. They threw away their plush, defined-benefits jobs for nothing. The National Review ran a related story yesterday headlined, “DHS Claws Back $59 Million FEMA Sent to NYC Hotels to Shelter Illegal Immigrants.”

Obscenely, the $59 million included illegal payments to the Roosevelt Hotel, which housed Laken Riley’s murderer:

This kind of thing enrages everybody— with virtually nothing gained by the Deep State. If they were smart, they’d cut out this kind of crap. It suggests the Deep State might not be as smart as we gave it credit for. Maybe cunning, ruthless, and insatiably greedy, but not smart.

Or maybe the Deep State is operating in a panicked shambles.

Either way, their arrogant belief in their own untouchability will keep tripping them up. Thanks again, DOGE. Can’t wait to see what’s next.

Have a terrific Thursday! We’ll dive back into another plucky roundup of essential news and commentary in tomorrow’s Valentine’s Day edition. We have much to discuss.

Don’t race off! We cannot do it alone. Consider joining up with C&C to help move the nation’s needle and change minds. I could sure use your help getting the truth out and spreading optimism and hope, if you can: ☕ Learn How to Get Involved 🦠

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