The Last Line of Defense: The Courts vs. Trump

The Intercept

16-05-2025

As Elon Musk steps away from the so-called Department of Government Efficiency, the chaotic legacy of his aggressive assault on federal agencies continues to reverberate throughout the government. Musk's goal — slashing $1 trillion from the federal budget — has fallen far short. At most, it has cut $31.8 billion of federal funding, a number that the Financial Times reports is 'opaque and overstated.' Notably, the richest man on Earth's businesses have received a comparable amount of government funding, most of it going to SpaceX, which remains untouched by DOGE's budget ax.
Stepping in to carry the torch is Russell Vought, the director of the White House Office of Management and Budget, and a key architect of Project 2025, the sweeping conservative playbook to consolidate executive power. Under his stewardship, DOGE will continue its mission to dismantle the federal government from within.
'Access to all of this information gives extraordinary power to the worst people,' says Mark Lemley, the director of Stanford Law School's program in law, science, and technology. Lemley is suing DOGE on behalf of federal employees for violating the Privacy Act.
This week on The Intercept Briefing, Lemley and Intercept newsroom counsel and reporter Shawn Musgrave join host Jordan Uhl to take stock of the legal challenges mounting against the Trump administration's agenda. As the executive branch grows more hostile to checks on its powers, the courts remain the last, fragile line of defense.
From slashing cancer research funding to firing employees responsible for guarding the nation's nuclear arsenal, DOGE's reckless tactics have triggered a legal firestorm. Bloomberg Politics reports that DOGE's action has sparked 'more than three dozen lawsuits alone' out of 328 cases challenging the Trump administration's expansive use of executive authority.
' There have now been hundreds of court decisions on issues, some involving the Privacy Act, but a wide variety of the Trump administration's illegal activities,' says Lemley.
In partnership with the Electronic Frontier Foundation and State Democracy Defenders, Lemley's suit accuses the U.S. Office of Personnel Management of violating the federal Privacy Act by handing over sensitive data to DOGE without consent or legal authority.
That data breach occurred shortly after Trump returned to office, when Musk reportedly dispatched DOGE operatives into government agencies and demanded access to federal systems and files. One of the systems they accessed was OPM's, which contains records for every current and former government employee. Those records include Social Security numbers, bank records, disability status, and more. In short, DOGE got access to lots of confidential information.
As the Republican-held Congress abdicates its oversight responsibilities, the courts have stepped up. 'Courts are, so far, being the sort of bastion and holding the line for the Constitution,' says Lemley. 'They're taking this very seriously. They're writing incredibly detailed opinions in very short periods of time,' he adds, especially 'as it has become harder and harder to justify the positions the government is taking.'
Those positions have the Department of Justice under Attorney General Pam Bondi behaving more like the personal lawyers of Donald Trump and his administration, rather than an agency independent of the White House.
' We're seeing this in things like Attorney General Bondi's recent memo about leak investigations,' says Musgrave. 'If you read that thing,' he adds, '[it's] half just screeds from President Trump himself, rather than any coherent statement of policy. You have to really get past a lot of vitriol and spite straight from President Trump's mouth before you understand what the Justice Department policy is.'
' One of the lessons that Donald Trump took from the first administration was: An independent justice department was a problem for him,' says Lemley.
In this second term, we're seeing just how vulnerable the system is when norms collapse, Lemley explains.
'Checks and balances depended not on the actual letter of the law and the way the Constitution is written, but on a series of norms and on good-faith behavior by parties to the government,' he says. 'And as we see those norms just wiped away, it turns out that it's much harder to actually control the effort of a president who is determined to make himself a dictator.'
Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.