Keith Ellison: Fighting DOGE in the Courts

WatchCats Episode 5, featuring the Minnesota Attorney General on legal challenges to the new administration

The new Trump administration’s “slash first, ask questions later” approach to overhauling the federal bureaucracy has, unsurprisingly, spawned a mountain of litigation raising a dizzying array of statutory and constitutional challenges to various executive actions.

Among the most effective to date at halting the steamroller, at least temporarily, have been those brought by a coalition of Democratic state attorneys general. Two of these have focused particularly on the activities of the soi-disant Department of Government Efficiency.

The first lawsuit has, thus far successfully, sought to block DOGE staff from accessing the Treasury Department’s critical payments system, alleging violations of the Administrative Procedures Act, the Privacy Act of 1974, and the Federal Information Security Management Act, among others.

The second suit strikes at the formation of DOGE itself, arguing that the unprecedented power delegated to Elon Musk effectively makes him a senior government officer, and that the administration’s failure to seek Senate confirmation runs afoul of the constitutional mandate to obtain the “advice and consent” of that body for such appointments.

In order to get the inside skinny on the litigation—and what future challenges might be coming down the pike—we spoke with Minnesota Attorney General Keith Ellison, who brought the suits along with 18 other state attorneys general. Ellison previously served a dozen years in the U.S. House of Representatives, where he founded the Congressional Antitrust Caucus and the Congressional Consumer Justice Caucus, as well as co-chairing the Congressional Progressive Caucus.

Get episodes directly downloaded to your podcast app of choice here!

If you’d like to help support the podcast by becoming a paid subscriber, you’ll get future episodes a day early, and can join our community Discord to give us input on future episodes and chat with fellow WatchCats listeners.

Episode 5 Transcript

Noah Kunin: Hey, everyone, I'm Noah Kunin.

Julian Sanchez: And I'm Julian Sanchez, and you're listening to WatchCats.

Noah: So I'm trying to make sense of this executive order, Julian. This is the fact sheet “President Donald J. Trump ensures the enforcement of federal rule of civil procedure 65(C)”. What this is doing is saying that, hey, if you're going to ask the courts to get a temporary restraining order, a TRO, on the government, or anyone for that matter, you got to post a bond, a security, you got to put up money of the same amount that the judge thinks might equate to the harm done on the person or entity that the restraining order is on. And this was already the case. So I'm just kind of trying to parse through what this actually means, and if it's anything different. Now, in the case of lawsuits often on the federal government, judges declare that because it's often in the public or civic interest, for these cases not to be chilled, usually the dollar amount is one dollar, right? It's basically waived.

Julian: And so it seems as though what this is doing is trying to direct agencies to, I guess, kick up a fuss about that, because what they're fairly clear about is—if you get down to the part of the fact sheet that explains the goal here—it's that activist groups file what the memo calls “meritless suits for fundraising and political gain, facing no consequences while they lose, while taxpayers bear the costs and delays.” And so, explicitly, the point of this is to deter such litigation by holding plaintiffs accountable for costs and damages if their injunctions are baseless. So I think fairly clearly the goal here is to deter people from suing DOGE, from suing the Trump administration, by threatening some kind of massive liability should a later judge reverse that injunction or deem the injunction improperly issued. And given the kind of claims that DOGE is making about the massive savings they're generating, which often turned out to be somewhat divorced from the reality, you know, maybe the thought here is that a union, a nonprofit or whatever, is perhaps going to think twice if, properly or improperly, some later court might say: “well, now you're on the hook for, you know, 10 million, 100 million dollars.”

Noah: Notably, as an aside, the US federal government itself is exempt from the civil procedure. So if the US government is trying to get a restraining order on somebody else, they don't need to post any bond at all. As far as the difference this occurs, it seems like the only change that I'm reading here is that the agencies of the federal government itself now actually have to tell, under this memo, under this executive order, have to tell judges what they think the damages will be. And now that all agencies have been staffed with Trump loyalists, I can only imagine that these numbers will be at the maximum level of their credence, if not beyond.

Julian: And, you know, they may be able to prevail upon the judges, even if there's very little chance that the injunction will ultimately be deemed improper. Having a judge who's been pressured to say, well, no, it can't be a nominal security; before the restraining order they've got to be able to post a security in line with some exaggerated estimate of what the cost of an improper order might be. Again, it's because of the situation where — hey, if a federal judge is willing to grant this injunction or this restraining order, even if ultimately the case is unsuccessful, it's unlikely that that order is going to get reversed as wrongly granted. But it might still be enough of an upfront investment to deter the suits from going forward in the first place. You just, you need a litigant with deep enough pockets to be able to post up, even if the odds of their eventually losing the money aren't that high.

Noah: You know who isn't immune for posting security to get a TRO? State governments. And it's just those state governments, specifically their Attorneys General, that have had some success at getting TROs that specifically target DOGE on some of its critical projects. This week, we talked to one of those Attorneys Generals, Attorney General Keith Ellison of Minnesota.

Julian: You may notice, by the way, that this interview, we've got a question in from one of our WatchCats listeners. That came via our new community Discord. If you want to find out how you can become part of that, we'll have more information at the end of the episode.

[MUSIC TRANSITION]

Julian: So first, Attorney General Ellison, thank you so much for making time in what I'm sure is an extremely busy schedule to speak to us here at WatchCats.

Minnesota Attorney General Keith Ellison: Happy to be with you.

Julian: You've been part of a coalition of Attorneys General who have filed a spate of lawsuits challenging a range of actions by this administration. Two of those lawsuits are specifically keyed to the Department of Government Efficiency, one of them challenging access to the Treasury Payment System and one challenging really the legal underpinnings of DOGE itself and Elon Musk's status as a kind of unofficial cabinet member. With respect to the first one, I was wondering if you could give us a quick rundown of what the legal objections there are. In particular, I know those of our listeners who are not professional policy wonks have probably not intimately familiar with the Administrative Procedures Act, but it looms large over a lot of the challenges that have been brought to DOGE's actions. So I was wondering if you could explain for someone who might not have heard of the Administrative Procedures Act, what it is and why it's relevant to what DOGE is doing.

Ellison: No, I think you're right. So, you know, back on February 7th, myself and 17 other state AGs filed a lawsuit against the Trump Administration to stop the unauthorized disclosure of America's private information and sensitive data and to stop this “agency’s”, and I put it in air quotes, unauthorized access to the Department of Treasury's central payment system and therefore to America's most sensitive personal information, including bank account details, Social Security numbers, stuff like that.

Just so you know, on February 8th, a federal judge granted a temporary restraining order barring unauthorized DOGE access to the Treasury payment system and the order was extended on February 14th. And then on February 21st, the court issued a preliminary injunction. So, I just wanted to make sure that we kind of understood what the lay of the land was.

So, the Administrative Procedures Act. This is a piece of legislation that says how and the manner in which administrative agencies will have to operate. They have to operate on a couple of bases, just generally. One is they have to give fair notice and comment, right? You're gonna have, if you're gonna change an administrative rule, you're going to have to say, “we're gonna change the administrative rule.” Everybody gets a say-so: “What do you think? Here's the comment period.” And then those things have to be factored in. That's one thing. People get a right to have a say-so.

Then the other thing is arbitrary and capriciousness. That's the standard. No administrative agency can operate in an arbitrary and capricious manner. If they do, that will be the basis to reverse the action that they took. In this particular case, clearly, there was no opportunity to be heard on this Trump action to allow unauthorized disclosure of Americans' private information. Clearly, it was arbitrary, it was capricious, it wasn't thought out. The government has a responsibility to act rationally and reasonably. And it didn't do either one. So we got no say-so, and it was a whack idea from the jump. And that's why the court has ruled in our favor.

Noah: Where does it go from here now that the preliminary injunction is in place in terms of additional hearings?

Ellison: Well, preliminary is just what it says. You know, there will be other proceedings, other evidentiary matters. We'll see whether... And then the other issue is compliance. You know what I mean? The administration has to do what the court said. I can tell you that another case that we filed, which is regarding federal freezing of monies that have been appropriated by Congress already, so-called impoundment case, we're hearing regularly about how they're not complying. You know, we've had people citing FEMA grants that are frozen. These are people who are dealing with floods and fires, and their money's frozen. And then others as well. And I was hearing about them last night at a community hearing that I had and hearing about them regularly. So there is a compliance issue. What happens with that? Well, you bring a motion to enforce the court's order. Eventually, you get to contempt. And then, of course, everybody wants to know what if he just says, to hell with you, you know, the one finger salute on all of it. Well, then we have what's known as a constitutional crisis.

Noah: Speaking of the Constitution, the other case speaks to that issue as well.

Ellison: Yeah, that little thing.

Noah: That little thing! So key to that second suit is a claim that the administration is violating the Constitution itself right out of the gate. One of the specific elements there is the Appointments Clause, which I'll very briefly summarize. Please correct me, Attorney General. The Appointments Clause says that unless Congress explicitly gives the president sole authority to hire an officer, not an employee, an officer, much higher rank, the president has to go through the advice and consent process of the Senate. And now the Trump administration's counter to that is that Musk isn't an appointee, isn't an officer or anything like that. He's in...

Ellison: Well, that would depend upon the last time you asked him. He's given various answers at different times.

Noah: Yep, we'll get to it. So they claim most of the time he's an advisor. And so when exactly, in your view, does an advisor... President can talk to all kinds of people in different contexts, right? When does an advisor become an appointee and under this clause in their actions?

Ellison: Well, it's very clear that he isn't an appointee in my mind because he is exercising administrative control. He is directing staff. They are engaged. They are literally going into agencies and saying, give us the files, dude, get out of the way. He is exercising the power of a secretary, right? If not greater, maybe secretaries couldn't do what he does. And so if you are exercising the level of control that he is, you're clearly someone who has to be subjected to the Appointments Clause. This is unconstitutional, clearly in my view. And, I don't know, I guess that's the answer to the question.

Noah: I also do wonder if there are any residency issues here, because as Politico broke last night, Musk and his wife are actually sleeping in my old office at GSA.

Ellison: That's interesting. GSA, for those of you listening, is the most powerful agency you've never heard of, General Services Administration. You know, they run all the buildings, and they got a lot of clock over there. And what I mean by that is juice.

Julian: They run all the buildings they haven't sold off yet.

Noah: Especially the Black Site CIA ones. I want to push on this just one more time before we go to the next question, which is follow with me this idea of a conceptual firewall, right? If the Trump administration says, hey, Musk tells a federal officer that Musk thinks that federal officer should do something, do X. But it's the federal officer, it's the agency, it's the secretary or whatever who does it. Now, if they don't follow Musk's advice, Musk can't do anything directly, he has to go back to the president. And in reality, of course, the officer knows Musk is effectively the proxy of presidential power in this context. But on paper, does this, you know, we'll call it the Muppet defense, make it all legal? Does that stand up?

Ellison: No. So, I mean, I can elaborate on that. Please do. Look, look, you cannot— there's nowhere in American jurisprudence that tricksterism and bullshit works. If you're actually doing a thing, that thing is being done, right? I mean, and so it's a subterfuge, it's a pretext, you know, and the court's not going to buy it, or shouldn't. You know, of course, courts have their own political point of view. But so far, you know, in the DOGE too, you know, the court actually in that one, we did argue the AGs who filed that case, that the Appointments Clause was violated. And, you know, they created a new federal department without congressional approval, granting us the powers over federal government. But the court denied the motion for the TRO. That doesn't mean we're not going to get a preliminary injunction. It doesn't mean that we're not going to win that case. It just means that we've got some more things to do before the court will engage in emergency measures.

Noah: And do we know when that next checkpoint is on the DOGE 2 case?

Ellison: Coming up quick, man. I wish I knew the exact date, but it's being litigated vigorously right now.

Julian: So circling back to the first case, I mentioned the Administrative Procedures Act, and you have a range of claims under the Privacy Act, under FSMA, the...

Ellison: Ultra vires… You know, but basically, ultra vires is just Latin for “he exceeded his authority.”

Julian: Right. So on a number of those claims, I think the administration has in a way made things somewhat easy for you, and presumably that's why you've had some success there. By operating in a fairly fast and reckless manner and ignoring a lot of the normal protocols that would apply to this kind of access to sensitive systems.

Ellison: Move fast and break things, isn't that the motto?

Julian: Yeah, exactly. Well, the flip side, it seems like a lot of those claims are essentially procedural.

Ellison: Right.

Julian: And so in theory, the administration could cure those claims by kind of slowing down a little bit and doing the paperwork, at which point you would kind of delay their action by maybe a month or two. I wonder if you could help us understand which of the claims there are basically procedural and something they can cure, and which are sort of more fundamental and would be a more permanent obstacle to the kind of things they're trying to do.

Ellison: What I will say about what you're saying is that there's — I think just about everything that the Trump administration has done through these executive orders could be done through the normal course. I mean, even the birthright citizenship stuff. I maintain the Constitution doesn't allow the president to deprive people who were born in the United States and subject to the laws of the United States to suddenly be not citizens of the United States, but you could change the Constitution. There is a procedure for it. There is a very clear road map if that's what you want to do.

But that's the essence of the problem. Because I don't want anybody listening to your show to say, “oh, that's procedural stuff.” That's democracy! What in the world is democracy other than procedural stuff? Well, we have procedural stuff because if you want to say, for example, give a private oligarch access to Treasury files, maybe you could pass, introduce a bill that says, yeah, he can do that. Maybe you could have it debated in committee. Then you'd have citizens and various people come lobby it on both sides. You'd have to go through. There'd be an amendment process. It would hit the floor. You'd have a vote. And then the Senate would have to pass an identical version. Otherwise, it would flip back and forth until you got one bill. And then the president could veto it if the president didn't like it. We assume that that process will get us to a better result than if some monarch just pulled stuff out of his ear. And so that's the thing. In essence, democracy is a procedural matter. You could get anything you want done, unless it's unconstitutional. But even then, you could change the constitution.

So my point is, the fact that these things, the objections we're making are objections to the procedure, I believe are vitally important. You got to follow the rules. You got to do what you... Let's see if he can get 218 Republicans to say that $3 trillion in federal funds should be frozen. Let's see if he can get that done. Let's figure it out. Let's see if we can get 200... What do you need, two-thirds of the states or something like that to get a constitutional amendment? Let's see if he can get whatever the number is to change the Constitution, get enough states to ratify.

Noah from the Future: Noah from the future here. We did look this up at the end of the episode. While it’s two-thirds of Congress necessary to override a presidential veto, slightly higher threshold to amend the Constitution: Three-quarters of all states must ratify any amendment. Back to Attorney General Ellison.

Ellison: I mean, the reason that he's... That is my fundamental objection to the way this president is operating. He's operating like he's Mohammed bin Salman. He says, be and it is, you know? And no, that's not democracy. That's not how things happen in a country that has three branches of government, supposed to be co-equal, not so much these days, you know? And this is a very big deal because he couldn't do this stuff if he had to go by the rules. And so he's violating the rules.

Noah: Speaking of the rules, it is... Maybe it wasn't a rule. Maybe it's a norm that both in the administrative actions of agencies like the work I used to do and in the judicial sectors, that people should have access to the same information, right? We might disagree on it, but there's a discovery process and everyone's operating from the same set of demonstrable facts. And an obstacle here seems to be consistently that even the Department of Justice under the Trump administration doesn't have good information. DOGE was initially represented as having read-only access to Treasury payment systems, run by the Bureau of the Fiscal Service or BFS. The government did eventually have to admit that they also had read-write access, independent of their ability to copy data and siphon it off somewhere else. Now for a while, DOJ lawyers couldn't even tell the judge who was formerly running DOGE. And frankly, it's not really clear they're being honest about that still. How big is the issue of this overall? How much are you going to have to follow leaks and reporting versus the official representations?

Ellison: Well again, it's the hard... I mean, so this is why I argue that we have entered a phase of American authoritarianism. I do argue that. That sounds inflammatory, but it really is true. Now look, so far, they haven't been cuffing people for criticizing the dear leader yet. So far. Once you can't get information, once the press is intimidated, which it's starting to be, once people can't know things, because everything is a matter of personal choice as to what you want to believe, because facts don't matter, once all these sort of this information sort of like gumbo really gets turned around, now what is truth? You know, who knows, whatever.

And that is the beginning of what I believe is an authoritarian society. I think that other things generally do follow. But we look back, you know, at, I don't know, say Germany during the 30s, from the standpoint of 2025. What did it look like in 1933? What did it look like then? And that's an important question to ask. What do authoritarian societies look like when they begin to become authoritarian? I think they look a lot like this. And we need to be careful and mindful about that. So that's what I have to say about the, this information soup that is being stirred around. And nothing is actually true. Everything is a matter of opinion. Nothing's verifiable. And nobody can really get down to what is really what.

Noah: I'll bounce off your comment around, like, they're not putting people in handcuffs yet for disagreeing with them.

Ellison: Not yet.

Noah: What always resonated me was with what the author Sinclair Lewis said, right? He wrote a book called It Can't Happen Here in 1935, his dystopian political novel. And it was basically trying to argue that when authoritarianism, when fascism comes to America, it will be inherently American. It will manifest here according to our own principles. And to that point, you know, why put people in cuffs when you can sic like the social media laser on them and destroy them that way? Right. It's going to manifest here differently.

Ellison: Well, here's the answer to that. The answer is, so let's say we do get to this point where he's just telling the court, he's just flouting court orders. Because remember, it's only March, right? So, well, so let's just say we're sometime in June, thousands and thousands of federal employees have been fired. Let's say we're in sometime in the not too distant future, and, you know, NIH grants have been cut, US ag grants have been cut. Oh, you know, and the economy is impacting. These tariffs are biting. Inflation is rising. And so people can't afford food. People are out in the street now. People will get cuffed for criticizing the dear leader at that point. I'm not saying it's going to be June; I don't know when it's going to be. I hope it never happens. I hope I'm all wrong. But what I'm telling you is the soft authoritarianism where you just sort of send the Twitter mob after people and, you know, these 1,500 people who were just pardoned, they owe their freedom to one person and one person only. Therefore they owe their loyalty. Now, if the president says, you know, some of these commentators are such an annoyance to me, why doesn't somebody get these pains in the butt out of my life? Oh, I didn't do anything. What are you talking about? All I said is that the guy was the pain in the neck.

Julian: Will no one rid me of these meddlesome AGs?

Ellison: Yeah, hey, so we we don't know what the future is is going to hold. We know that the signals now are not good.

Julian: I actually want to follow up on that. The New York Times on Thursday just published a story about this kind of chilling effect. The fact that in a sort of modern social media era, they don't need to send, you know, the secret police or the FBI to your door anymore. They just need to say “here are the enemies” on social media. And people are flooded with threats from supporters. And they can say, “well, we didn't do it.” And they write about this sort of chilling effect that media and federal workers and even sitting members of Congress are feeling. Because, you know, if they shine the spotlight on you, you get inundated with threats. I'm wondering to what extent that actually weighs on you personally. I mean, is it something you've experienced?

Ellison: It is something I've experienced, but I've experienced it so long that all the bullies can kiss my ass. OK, so that's how I feel about it. My point is, you know, I have no fear of the bullies. I've been living with them my whole life. And let me just tell you, my mother's father was a guy named Frank Martinez. He lived in a county, well, parish called Natchitoches Parish, Louisiana. And he was organizing black voters when it would definitely get you killed. And they would call the house and tell my grandmother: “We got that N-word tied up to a tree. He ain't going to make it home tonight.” Actually, they didn't have him tied up to a tree, but they wanted to terrify my grandmother. “Frank, you got to stop this. Frank, please. I'm so scared.” And they sent my mother to a boarding school in Lafayette, Louisiana, because they thought they were going to bomb the house. And if you looked around the south at those days, that was no idle thing to worry about. So what I'm telling you is, I was born to meet these bullies face to face. I am absolutely not scared of them. I've had al-Qaeda threaten my life. I'm not worried about it. Look, nobody lives forever. And I'm damn sure not backing down from these people. And that's just how it goes. And they can call my office all they want. It's not going to change anything I'm doing.

Noah: One of the things you've asked the court for is a declaration that Trump has violated something that many people who don't recall their civics classes may not remember, something called the Take Care Clause.

Ellison: Right.

Noah: Now, that might seem a little orthogonal to the actual relief being sought, but is it?

Ellison: Okay. Now, for the folks who didn't get—for the non-Yale people, “orthogonal,” what is that?

Noah: [laughs] Tangential! It might be like, what is this about? What's happening there? Right? And is what's happening there, queuing up material for articles of impeachment?

Ellison: Well, what the whole Take Care Clause really means is that the executive's job is to take care that the laws are followed. What does it mean that the executive is doing the opposite of taking care that the laws are followed? When we put that in there, I will tell you this, that, you know, impeachment is a prerogative of the Congress. That's their business. I like to see them doing their jobs. I think I like the vocality I've seen out of some of the Dems, but we need more, more, way more—and some Republicans, too! We need more out of them because I know a lot of them who don't like it. But my point is that to impeach, you know, we tried this. This is the only twice-impeached president ever. I think they should go for it. If you do things, if you commit, well, high crimes and misdemeanors, whatever. If you violate, if you do what impeachment is meant for, then you should be impeached. But at this point, you know, we've got to get back in some majorities. And so I don't know if our pleadings are about impeachment. I think they're more about meeting the immediate need that we see right now. But if some House members or senators, Republican or Democrat, feel like exercising their constitutional prerogative, so be it. I'm all for it.

Julian: This is actually maybe a good place to raise a question that one of our subscribers, Doug from Virginia, sent us over our WatchCats Community Discord. He was just wondering actually about the sort of practical logistics of how you and these 17 other state AG offices managed to coordinate and decide which battles to fight. I was wondering maybe if you could tell us a little thing about the sort of the process by which you coordinate all these folks to decide what are the battles that we need to pick, what are the challenges we need to file?

Ellison: Well, it's a good question. I mean, we're all different. We're all in different states. We all have different levels of experience. And just getting two people to agree on anything is never that easy. But we've been able to agree because we've all recognized for over a year that maybe election would go the wrong way from our perspective. And if it happened, you know, we needed to identify what challenges there were likely to be. So we way back about a year ago, we identified about 50-some things we thought that the administration under Trump would do. Then we looked at Project 2025. They were pretty transparent about it. We looked at Trump 47. We looked at his public rhetoric.

We weren't surprised birthright citizenship was coming. We weren't surprised impoundment was coming. We weren't. I mean, actually, the stuff that he's doing with DOGE is a bit of a curve ball. I didn't exactly see that coming. But when Elon dropped 250 million, his biggest donor, we knew that he was going to have a special role to play. And we knew he had a certain approach to life, particularly after what he did at X and things like that. So that's what we did. We kind of got as ready as we could. People volunteered to take up certain things that they deemed to be more important. And we all like each other, you know. And, you know, look, AGs don't run against each other, right? Not even Republicans, don't run against the other Dems. You know, we run in our own state and there's only one AG per state. So it's not totally hard to get along. We were used to it because a lot of our consumer stuff is multi-state litigation. So a lot of our tobacco, multi-state litigation, opioids, multi-state litigation, again, some of the big tech companies, multi-state litigation. So we are we are in the habit of haggling over, you know, who's going to get what from the, you know, the Purdue settlement.

Noah: And you might have to be doing a lot more of that coming up now that the CFPB has been gutted.

Ellison: So let me say this about the CFPB. It is true that they do consumer financial protection and we do financial protection. It's not true that we can take up all the slack. The sheer volume is so enormous that the CFPB is an instrumental player. Remember, when the Dodd-Frank Act was passed in response to the 2008 financial mortgage back securities crisis, the problem was that we had plenty of consumer protection, but those same agencies that were doing it also had prudential safety and soundness, other responsibilities besides consumer protection. So, what happens when something is everybody's responsibility? It's nobody's responsibility.

Noah: No, I was just saying, I made the launch video for the CFPB to explain to people like why they exist, right? And that's literally a line from our launch video, which they have now deleted, right? They've memory-holed the entire CFPB YouTube, so they don't even want people who like embedded or shared that video to understand why this agency existed to begin with.

Ellison: Right, so 3 million people lost their homes, how many people, and look, here's the thing about the mortgage, the subprime lending crisis, even if you made every payment, never missed one payment. If you lived on a block with a foreclosed property, you lost home value, right? You lost wealth. And most of them, most of them were not first-time home buyers, most of them were refis. So my point is, you know, the CFPB is, okay: “We only do one thing and we do it well. We do consumer financial protection. That's what we do. That's what we're focused on. Call us.” And we work with them a lot as AGs. They're great partners when the agency is not overly politicized. But we cannot keep up the slack. We cannot, you know, fill in the gap for their loss.

And here's another thing, and you know this based on your own experience. There are some things that the CFPB can do that the states cannot do. We cannot regulate federal banks. We can, you know—how’s this for not fair: If you are a community bank, your regulator is the Fed. If you are the banks that are always in trouble—Wells Fargo—then you got no regulator because your regulator is CFPB. The systemically important large institutions, also known as—come on, help me out—too big to fail, right? They're regulated by the CFPB. Now, nobody's regulating them. Look, if you're listening to this show, type in “Wells Fargo scandal.” I'm telling you, there will be independent, separate scandals that will probably pop up. The one with all the accounts that came up. I mean, there's just a lot of problems. I mean, am I right? Y'all did this experiment.

Noah: On the data alone, right? So just in the interest of transparency here, one of the things I was doing at CFPB when I transferred out is I was the technology portfolio manager for supervision, enforcement and fair lending. My team alone, just to handle data and discovery, was at any time like 15 to 30 people. And that's just like 24/7 on staff. I'm not even counting contractors, right? How big is your office, Attorney General?

Ellison: I got 430 employees here and more than half of them are not lawyers at all. And the ones that are the ones that are lawyers, some of them represent state agencies. Some of them do criminal prosecutions. Some of them, you know, do for everything. Even our consumer group doesn't just all do traditional consumer. Some of them do utility rate and enforcement. Some advocate for rate payers. Others do charities enforcement. Others do antitrust. So we cannot keep up the slack, take up the slack. But like my little thought experiment: Am I right that there's plenty of stuff that the Bigs—using Wells, for an example—plenty of trouble they get themselves into? Of course, there is. I'm not even saying it's a bad company. I'm saying that in their pursuit of profit maximization, they come close to the line and sometimes go over it. And they need a regulator to keep on being fair to their competition.

Let me note this. The thing where they kind of had this pace system for their employees, this compensation system where you got this small base pay, but the more credit cards you sold, the more accounts you open, all that kind of stuff, you get more money. That wasn't found by consumer protection people. That was found by the safety and soundness people because the consumer wouldn't know. You wouldn't necessarily know you have five accounts in your name you never authorized. You know, you wouldn't know that. How would you know that? It might come up, but the people who really found the proliferation of it, you know, people at the CFPB, said “hey, wait a minute, this is a problem.” So what I'm saying is there is it's not like, oh, well, you know, the states will just take it up. No, you're going to have fraudsters running amok who will hurt other competitors in the market, who will undermine community banks and smaller banks that play by the rules, who will undermine consumers, who will undermine the workers who work with those financial institutions. It's not going to be good, folks.

Julian: Actually, you mentioned the problem of shaking loose information. I was wondering if we might sort of circle back to something we touched on briefly earlier, which is, right, we have an administration that likes to very loudly proclaim it is uniquely transparent, but, you know, in reality is not operating in as transparent a way as one might hope. I wonder if one of the values of the challenges you've filed is in discovery. Is there information that you think is being hidden that you would like to shake loose?

Ellison: Absolutely. We're trying to get down to brass tacks. Now, you're in an area where I can only kind of affirm your question and say, damn right, you know, but if I get any deeper than that, I'm a little worried that I might start giving out our strategy and stuff like that. So I'm going to just say that getting to the truth of the and down to brass tacks is very much a part of what we hope we can do. And discovery is ongoing and we'll see what we find, you know? But your question is extremely smart. It's just that I can't go there because it's too smart. Now you're getting into it. Now you're getting into what we're cooking up.

Julian: Well, I'll take that. That's fair. I hope you will forgive me. I have a legal dork question that I feel obligated to pose. You know, last year, in Loper Bright v. Raimondo, the Supreme Court overturned Chevron deference, which I think conservatives have sort of wanted to do for a long time, even though Chevron deference was sort of a creation of a conservative court. And progressives saw as a real blow to the efficacy of the administrative state.

Ellison: I'm not sure they're right about that.

Julian: I wonder if in this particular instance, the sort of backing away from the idea that, well, you have to give these agencies deference in how they interpret the law as it governs their own activities, might actually be of some help to these challenges and making courts less willing to say, well, if they think they are complying with the Privacy Act, we're going to give them the benefit of the doubt.

Ellison: Well, let me just say the world can be quite ironic, can it not? They got me talking about states' rights and, you know, challenging what some administrative agency might say is, you know, gospel. You know what I mean? And so I never thought that the end of Chevron deference was some sort of earthquake. And let me tell you, I'm about as progressive as you can get. I was a Bernie person twice. I was the chair of the Progressive Caucus. You know, I'm a progressive. I'm a bleeding heart liberal progressive. Right. And I always thought that what Chevron deference really did is just is sort of just allow the agency to say “because we said so.” And you know what? Prove it. Get some evidence out there. Show what you're saying is right.

And so, you know, Loper Bright, for me— I may live to regret the words I'm about to speak—but Loper Bright I don't think is the hurricane earthquake that we, or the people on the left, might have thought it was going to be, particularly under the Trump administration, who will populate these agencies with people who see the world the way he sees it. Some of them might have wanted to go in and say, oh, well, the agency has “deference,” Your Honor. And nowadays it's like, no, you don't get that. Prove it.

Now, again, it's not a wide open opinion either. I mean, it relies on Congress being somewhat ambiguous in the statute. So you need the ambiguity in the statute. You need a few things down the line before it even kicks in. And then when it does kick in, it just means you're going to have to have a higher level of proof. And the agency's view is not just going to be automatically assumed. I could see how the agency, you know, maybe they do know more about the mating habits of a particular fly, and maybe they know more about water testing. I mean, if it's just truly just sort of an administrative thing, and there's no politics in it, it seems to me that maybe the agency should, you know, we should rely on the fact that they've developed some expertise. But when it's anything that involves some judgment, I think it's all right to question that. So, again, I just spoke some sacrilege, but, you know, that's the way it is.

Noah: Well, I think that's a perfect segue from another community question, this time from Anonymous, which is you talked about how your former role is the stance you took in Congress as a former representative. Do you have any more specific recommendations for what Congress should be doing to hold DOGE accountable? And I don't even just exclusively mean from the minority position the Democrats are in, right? One of the things this Anonymous commented.

Ellison: You mean Congress, not just the Democrats?

Noah: Correct. I mean Congress as a whole.

Ellison: Well, Congress needs to tell Elon he needs to show up at the committee hearing and explain himself. Are you or are you not running things? Because it sounds like one day you are and one day you're not. Let's get some answers to that question. You know, quite honestly, you know, Congress needs to assert its authority on the empowerment of everything, they ought to be mad as hell. They all—I'm talking about the most conservative Republican—ought to say “Wait. A. Second. We're the ones who appropriate money. We appropriate that money. Now, if you want a repealer, send it over and we'll have a hearings on that.” But you're not just going to just say what we did is just whatever, which is what he's doing. So my point is Congress really needs to step up the game. Mike Johnson, you know, quite honestly, he cannot possibly be proud of himself. He must feel like…

In many ways, Congress is the most important branch of government because the likelihood that most people will ever meet the president is low. You might see him at a rally you went to once. But you probably can get to know your congressperson if you want to, right? If you put a little energy into it, you can get to know your congressperson. Now, that person, who has a big say-so about what happens in this country, is just taking their card and handed it to the president, handed it to Elon. And when I say “card,” I mean voting card, right? And so that's just terrible. And so I think there's a lot they can do.

From a dim point of view, I think we need to take the show on the road because at the end of the day, friends, American democracy, such as it is, is not guaranteed in a courtroom. It's guaranteed in the hearts of the people who love it and stand for this country. That's it. So ultimately, you're going to have to see throngs in the street demanding that constitutional order be observed. That's what's going to have to happen because, you know, at the end of the day, that's the only thing that could make the people who operate in our government, from Trump on down to me, do what we're supposed to do. That's why the First Amendment is first. The right to freedom of expression, the right to the freedom of the press. The freedom of the press is not for the press. It's for us who consume news and information. Right to redress grievances, right to freedom of assembly and association. These are the things that guarantee American democracy. And so that's where it's going to ultimately have to go.

And so why not, as a member of Congress, hit the road like Bernie's doing, like AG's are doing? We had a great meeting in Arizona the other day, where we had myself, Raul Torres from New Mexico, Dan Rayfield from Oregon, and we were all rounded up and led by Chris Bays from Arizona. And we're doing more of them. We got one coming up in Minnesota. We got one coming up in Colorado. We're hitting the road to talk to the people.

You know, it was Lincoln, I think, who said public opinion is everything. Without it, you can do nothing. And with it, you can do just about anything. And so we've got to cultivate public opinion. There are people who probably voted for Trump, but who are farmers working on some ag project. I mean, if you're sending soybeans to another country where people really need that food, this USAID thing just screwed you. Are you happy about that? I hope not. You might be some rich conservative doctor living in a four-garage house, and yet your NIH grant just got chopped. I mean, there's a lot of people who this is hurting. And when these tariffs start biting, everybody's going to be hurting.

So I'm just saying, we got to get out in the street. The Dems got to get out to the street. And if you notice, there's a bit of a lot of Republican town halls where they're getting yelled at by their people. I don't know if you noticed that. They cancel them. So now you're not going to stand and be accountable for what you did. And I'm telling you, the midterms are going to be a wipeout unless somebody starts messing with the voting systems even more than they already do. And that's a big worry as well.

Julian: Actually, I wonder, you've raised a series of important issues that are somewhat distinct from the challenges that are already underway. I realize you maybe need to be sensitive to the need to not preview strategy. But I wonder if there are other areas where the challenges haven't yet been filed but that you're kind of keeping an eye on as something that you may need to become active on.

Ellison: No, this is a good question. I mean, all these federal employee dismissals are quite concerning. And there have been some cases filed on some people for some people. But just a broad base, I mean, 70 or 80,000 VA employees. This is really concerning. And summarily, I mean, does the president have the right to just say you out? I don't think so. And then, you know, falsely gave people bad reviews saying your work has been unsatisfactory, hit the brick. I mean, these things are very concerning.

And we've already had some of these VA employees talk to us. One lady was a musical therapist for veterans. And these are veterans who've suffered post-traumatic stress, serious anxiety, serious depression issues. If you know veterans, they have an elevated suicide rates, you know. And this music therapy is extremely important for their mental health and well-being. She got fired so summarily, she couldn't even go to them and say, you know, guys, I won't be back tomorrow, but here's what you should do to take care of yourself. I mean, you know, we're talking about people who got shot up in Vietnam, shot up in, you know, Kuwait or Iraq, or shot up in Grenada. All kinds of people who've, like, given all for their country and lost their arm for it or their spleen for it or their mental health for it. I mean, even if there's not one bruise on your body, if you had an IED blow up in your proximity, your brain just got scrambled, you know, And so these things are important to people. And Trump's like, I don't give a crap. So whatever.

These things are coming up, they're hitting more, they're biting more. And also on this DEI stuff. Now, let me tell you, I know there's been one lawsuit that a private organization brought on DEI that said you can't take adverse action for DEI programs. But DEI programs are broader than people think. It's not just racial minorities, women, and gay people, right? It's actually employee resource groups for single parents. It's disability. It's all kinds of stuff. What the DEI movement is about is saying, look, instead of just not being the victim of discrimination, which you now have to prove, let's try to create a welcoming work environment, right? And it's bigger than just what some folks want to make it out to be. And I think that that's going to have a very negative effect and try to get rid of these programs, I think, is a problem.

What's the opposite of diversity? Singularity. Just one, just one group can be here. What's the opposite of equity? Inequity? That's what we're shooting for? What's the opposite of inclusion? Exclusion? So we want to have a singular, inequitable, exclusionary policy. It just seems that we're going to run afoul. And then, of course, a lot of the immigration stuff hasn't really hit yet either.

So, I mean, there's just a range of, there's a lot of stuff, man. And I'm glad you asked that question. What is still rolling down the pipe? This is something we all better contemplate.

Noah: As both you and I have just now recovered our voice, and we've been strolling through this interview to keep it up, we'll start to wrap up here. Extracting from the answer you gave, as people get released, perhaps illegally, from federal service, or if they're staying in, and they believe they are being given illegal orders, what should they do? Who should they report to? Right? How, go ahead.

Ellison: Well, call your state AG, for one. One of the reasons that we have these community meetings is not just to hear from people, but to meet people who've been adversely affected by these executive orders. Their stories could be part of how we establish standing to bring a lawsuit. So you should contact your state AG. You should also contact your union if you're in one. That's absolutely critical to be able to be in touch with the AFGE, you know, the Federal Employees Union, ASPE, other ones. And then be in touch with like, if you're with the VA, reach out to your American Legion group. I mean, let them know what's going on with you. Do not suffer in silence. That's the one thing you absolutely cannot do. You are not some bad luck accident. You are being affected by a systemic change. So, to hell with the rugged individualism, you know. I mean, Elon wants to tell you about rugged individualism as he's grifting $38 billion federal contracts. You know, just picked up like a $400 million contract a few days ago. And so, you know, don't go in with that. And so, when you say who to reach out to, who to contact, that's who I definitely would say. If you're in Minnesota, call 651-296-3353 or go online and complain online. You can upload documents and pictures and stuff like that.

Noah: Julian, any last questions before we wrap up?

Julian: No, I’d just like to give Attorney General Ellison an opportunity—if there is a point we have not covered or asked about that you'd like to leave our listeners with—give you an opportunity to ask yourself a question.

Ellison: Well, let me just say this. You know, you guys, when we came on, you were kind of joking about how one of you guys was sort of a progressive, the other more libertarian, and you guys were like the union of the Jedi and the Sith. And I thought that was pretty funny. But the reality is that's what we need nowadays, man. Please, folks, do not get into a little box and only talk to people who you agree with. Meet, reach out, talk to people. We can argue about tax policy later. We can argue about whether this is too much regulation, not enough. We all agree that if you believe in free markets, you must believe and know that there are market failures, and you know that there's got to be rules of fair play. We can argue over what they are. What we cannot do is to say that one person can just rule the country through executive order, can make threatening comments, can try to divide Americans every which-a-way.

We haven't even discussed foreign policy at all. To me, that's a whole crazy topic. I mean, to say that we're now, now we're not, we're not with the EU anymore. We're with the other team now. I mean, we're with North Korea, China and Russia now. No, no. Not one of them three can you get up and say, “I don't like what the president's doing today.” Try it. You know, try it. Go over there and say, you know, go to Moscow and say, “Putin is a jerk and I don't like him.” I'm telling you, you're going to find yourself getting some visitors and you're going to get free housing. And when you're in that free housing, and free food maybe too, you may not like the hospitality.

So what I'm trying to say is, what, why, how in the world does the United States of America, you know, the land of the free home of the brave, liberty and justice for all, now on, now against the countries who share those values and with the countries who have contempt for those values? That to me is absolutely shocking. And we've got to do something about it, friends. There's nothing guaranteed around here. We're not going to be a democratic, multicultural, multiracial democracy just because we've been one for the last 60 years. We're going to be one because we will stand up and do something to protect and preserve this democracy with all its flaws, but yet way the hell better than if you were living in North Korea. So there you go. That's all I got to say.

Noah: Attorney General Keith Ellison, thank you so much for spending this time.

MUSIC TRANSITION

Julian: So I thought that was a fascinating perspective from Minnesota Attorney General Keith Ellison. Needless to say, we will be keeping a close eye on all of these lawsuits, and look forward to circling back with updates on those.

Noah: As you heard in this episode, we took some questions from our audience. Those are submitted on our Community Discord, which you get access to if you subscribe to our Substack. That link is in the description below.

Julian: And coming up soon on WatchCats, if you've been following the news, you know a lot of technologists with the federal government are out of work following the DOGE rampage through the federal bureaucracy. A lot of them working at agencies that, frankly, we thought were not doing a bad job at all making government more efficient. So why have they found themselves on the outs? Is this making government more efficient? We're going to talk to some alums of government technology offices in a future episode to try and get to the bottom of that question.

Noah: That's a preview of what's to come on WatchCats. And if you are interested in helping to shape our editorial calendar, well, that's one more reason to jump into our community discord. We'll see you then. This was Noah Kunin.

Julian: And Julian Sanchez.

Noah: And you were listening to WatchCats.