Bulwark Takes - Last Attempt To Save USAID with an 11th Hour Lawsuit

Episode Date: February 7, 2025

Sam Stein is joined by Josh Gerstein, Senior Legal Affairs Reporter at Politico, to talk about the last minute legal efforts to stop Donald Trump and Elon Musk from dismantling USAID.

You set the gold standard for your business. Your website should do the same. Wix puts you at the helm, so you can enjoy the creative freedom of designing your site just the way you want. Want someone to bounce your ideas off? Talk with AI to create a beautiful site together. Whatever your business, manage it from one place

and tie it all together with a personalized domain name. Gear up for success with a brand that says you best. You can do it yourself on Wix. You set the gold standard for your business. Your website should do the same. Wix puts you at the helm so you can enjoy the creative freedom of designing your site just the way you want. Want someone to bounce your ideas off? Talk with AI to create a beautiful site together. Whatever your business, manage it from one place and tie it all together with a personalized domain name. Gear up for success with a brand that says you best. You can do it yourself on Wix. Hey guys, it's me, Sam Stein, here with my good bud, Josh Gerstein, former colleague at Politico.

Josh, thanks for joining. Really appreciate it. Josh, let me set up the story and tell me if I'm getting it wrong, and then you can give us the news. USAID in the Elon Musk, Donald Trump crosshairs earlier this year. We've known for days that they're trying to wind it down and put it inside the State Department. Earlier this afternoon, we get word that this plan is actually coming to fruition. They're going to take an agency that's about 14,000 people globally, reduce it to about 290 people, some of them overseas, but some at home, stuff it inside the State Department, effectively shutting down independent federal agency. And for the week or so that this has been unfolding, everyone who's

in this world, including Inside USA, has been asking me, where are the lawsuits? Why are people not suing to stop this? Well, tonight, you're reporting there are last minute, 11th hour lawsuits to stop this. Can you just explain what is happening? Sure, Sam. I'm good to see you. So, yeah, so the one we know of so far is filed fairly into the evening on Thursday night in D.C. U.S. District Court, which is where we've been seeing a lot of skirmishes over all kinds of Trump executive actions, some other places in the country, but a lot of them happening right in D.C. And this was filed by the American Foreign Service Association, which represents foreign service officers, both at state, I think, and at USAID and AFGE, American, I want to say, Federation of Government Employees. You got it. You got it. Congratulations. Thank you. You got it. You got it. Congratulations. Which represents other, thank you, my acronym training.

You know, they filed this suit. A public citizen is representing them. Another group, Democracy Forward, is involved as well. And they're basically looking to head off this, you know, shutdown, collapsing of the agency into the State Department, what you just talked about. I mean, it sounds like they're trying to do a reduction of what, like 94 or 96. I'm not a mathematician, but it's a fair bit. It's in the 90s. Yes. It's a de facto shutdown, I think, or near shutdown of the agency. And so they're protesting

that. And in a conference call with reporters, they said they're going to ask for a judge to issue a temporary restraining order to sort of block this from kicking in. I think a chunk of it is supposed to kick in tomorrow night at midnight, although even if it takes place, it can't take place that fast. Because as you know, Sam, a lot of these employees, maybe most of them, are scattered around the world. And they're going to have to be brought home even if this plan goes through. So as I understand the plan, the plan is to put these people on administrative leave. And then they have a timeline of like 30 or so days for the people who are abroad to get their stuff together in order and come home.

I don't know how that works logistically. But, you know, people who I've talked to in the agency say it's utter chaos and they can't figure out. On the legal front, though, on what grounds are they asking for a temporary restraining order here? I mean, it's basically a constitutional argument that Congress appropriated a budget, obviously, with a number of more than 10,000 employees, you're talking about a very substantial budget to USAID, and that the president doesn't have just like a unilateral right to not effectively not spend that money or effectively shut down. So this is the impoundment debate, essentially. I think it relates to the impoundment debate. But if it really is a de facto shutdown of the agency, it goes even further than that, right? I mean, there's a statute saying that USAID shall exist.

We looked this up the other day. It was created by an executive order, I think, during the Kennedy administration. But in the 90s, interestingly, Sam, during a very similar fight between Jesse Helms and Bill Clinton about whether USAID should be independent of state and whether the broadcasters that the U.S. government runs overseas should be independent of state. There was actually a statute passed that formalized the law creating USAID. And the argument in this lawsuit is that Trump is effectively defying the law and usurping to himself the power to shut down something that Congress created. I'm not a president. I'm sure the State Department and the Justice Department will argue that he's not totally shutting it down. He's reorganizing it. And of course, he has the right to lay off employees or come up with a more efficient system. But, you know, kicking out 96%

of the staff and the statements, obviously, Elon Musk has said where he said he's shutting it down. Yeah, Elon Musk has been very clear. Yeah. I mean, you're going to get those statements being repeated in court. So whatever the administration tries to say now, you know, they may be stuck with what he said and what Trump said publicly, which is a scene we saw play out over and over again in Trump's last administration. Describe that a little bit, like how these statements, these braggadocious statements, this have come back to kind of haunt them in the legal settings. Well, you know, in the past, it's been a problem. I mean, you go back to Trump's Muslim ban where he was out on the campaign trail being

very clear that he wanted to prohibit Muslims from coming into the United States and maybe even U.S. citizens who are Muslims. It couldn't have been clearer what he was trying to do. And then Rudy Giuliani and other people tried to sort of reframe that as he came into office and they came up with something they call the travel ban. And they thought they could throw in North Korea and sort of solve the problem that way and say it's not a bias against Muslims. And the courts, you know, didn't look too positively at that. And there were a lot of discussions about like Trump's statements. Were they relevant? Were they not relevant? The lawyers had to go into

court and say, don't look at what the president said, only look at the document that he signed. And a lot of judges kind of wrinkled their nose at that. And, you know, I think it protracted a lot, not just that, but a lot of other cases that were bought against the Trump administration where they had to confront what the president had said publicly. And now I guess they can distance him from Elon Musk, who doesn't hold any formal power. But, you know, these judges, it's being brought in Washington. These judges read the press and watch TV, and they know that Elon Musk seems to be wielding a lot of power right now. Also, again, Trump's statements have deputized Elon Musk to wield this power. It's not as if Trump has been saying, I don't know what he's doing. He's saying, I actually want him to go

and do his thing. Let me ask you on the court's timeline here, what are we expecting? Because obviously, these things are moving extremely fast. I mean, nothing's set yet that I know of to happen. The suit was only filed very, very recently. It is possible that they could get in front of a judge by tomorrow afternoon and try to block this. Sometimes temporary restraining orders are issued on a day's notice. And we had a Justice Department lawyer in court in another case today complaining we're being asked for TRO after TRO. So this is something that the judges in Washington especially are really grappling with at the moment as we have, you know, probably in Washington, I want to say, around a dozen suits pending over various Trump actions. And if you look across the whole country, you're probably talking a couple dozen, maybe approaching 30 different lawsuits that the Justice Department has to scramble to respond to with a lot of people who work at the Justice Department, obviously not that excited about having to do that.

And other people having recently been fired and a lot of things going on. So there aren't that many chefs in the kitchen over there to have to monitor all this litigation that's springing up across the country. Yeah. When you put all your government lawyers on the sanctuary cities case, you begin to lose some personnel to handle this stuff. Hey, Josh, thank you so much for walking us through this. Keep us posted on what you discover. We'll get you back on to talk about it. I appreciate it, okay? Happy to do it, Sam. All right, take care, bud. All right, so we just talked to Josh Gerstein about the legal situation involving USAID, a suit brought by two unions to try to essentially put

a temporary restraining order on the shuttering of the agency. Let me tell you a little bit about what I've heard from a reporting standpoint. So as we mentioned, word got out tonight that this 14,000 person agency is going to be reduced to about 290 people. To give you a sense of scope under this new restructuring, there will be reportedly 12 people from USAID in all of Africa. That's crazy considering the footprint that it has had on the continent. I've talked to two people in the agency and the foreign policy apparatus who are deeply familiar with what's going on. I'll just leave it at that. And there's two kind of different takeaways. Well, let's start with the stuff that they agree on, which is one, this is going to have an incredibly damaging

real world consequence. So Atul Gawande, who is the former USAID administrator, has been on Twitter talking about this. He's talked about the costs that it will have. This is what he writes. Kids with drug resistant TB are going to be turned away from clinics. Already, they're not just dying. They're spreading the disease. People around the world with HIV are being denied their medicine. They'll soon start transmitting the virus. The damage is global.

It's going to be well beyond that. And that's just a sliver of it. One person I talked to who was very much of the mindset that this is, well, apoplectic basically about it, was saying, look, people don't really understand USAID is essentially the lifeline for a lot of foreign policy and foreign agencies and people who are operating globally around the world. So like take PEPFAR, the program to combat AIDS and HIV. They depend on USAID personnel and supplies to administer that program. If you suddenly uproot those people from across Africa, it's unclear what good the PEPFAR money does. You're going to have to recreate an entire supply chain and you're going to have to re-find personnel to administer the program. People will die in the interim. AIDS will spread in the interim. All the progress that we've made will go backwards. All right. So this person wrote, USAID does the vast majority of commodities procurement. We're talking about test kits and stuff like that, as well as supply chain management through their partners.

Even for center disease control partners who provide services on the ground, they rely on USAID for supply chain stuff. So that's going to be a huge hit. And no one is denying that. They are wondering if the Trump people are aware of what actually will happen here and how this will harm a lot of the other agencies that are still on the ground. Then I talked to someone else who agreed with the assessment that this is a calamity, but had, I guess, a more hopeful read on the possibilities. They weren't hopeful, but they were holding out hope. Let's put it that way. This person said, look,

what's happening here is 95% of the workforce is being put on administrative leave. So we were left with about 290 people. The hope, and I think this is being conveyed internally to members of the Trump administration by USAID officials, is that eventually those people will be brought back in, or at least a portion of them. Certainly no one thinks it's going to be 14,000 people, but maybe they realize that, in fact, operationally, they need these people back out in the field, and they discover that, okay, 290 is totally not going to cut it, but maybe we can get to 500, 600, something like that. Even that would be a huge, huge, sorry, 5,000, 6,000 or something like that. Even that would be a huge, huge, and I'm sorry, 5,000, 6,000 or something like that.

Even that would be a huge, huge cut. And frankly, this person didn't expect that to be the case. There's the other possibility, and this was even bleaker, which is that the 290 who are being left to handle this transition period are essentially just there to effectively shut the agency down. And that when you close the books and you shut the doors and you turn off the lights and you pay the last bills, you still need someone to do all that. Someone's got to be the last person to turn off the light. And in that case, it's not 290. It's zero. That is the end result. I don't know what to expect, honestly. What I can report is that the case is being made internally to the administration that this could cause real world calamity. matters to them. Because frankly, it's evident that Elon Musk doesn't care, doesn't give a shit about this. In fact, wants to go away, thinks it's a, what do you call it, a ball of worms.

Donald Trump could care less about this stuff. Marco Rubio, we know, does care about this stuff. He's on record supporting USAID. But maybe he's just powerless. So it is an incredibly dramatic evening regarding this agency. People are deeply scared, freaking out, both in D.C. but across the world. It's going to have dramatic, unfathomable ramifications for U.S. foreign policy, the global health community, disease, you name it. We have a lawsuit now. I don't know how that's going to play out. We'll see. But we will keep monitoring the situation, keep reporting on it. And as always, if you hear something, if you're involved in this storyline, if you have stuff to share, just hit us up, please. Thank you.