Judicial Complicity in Fraud

President Trump wants to end government waste and fraud. Consistent with Article II and anti-fraud statutes, he reflects the American people’s deep frustration with unresponsive, often corrupt bureaucrats, contractors, and politicians. Now, activist federal judges are getting into the act.

Trump’s efficiency czar, Elon Musk, discusses the links between physics and government. His point is well-taken. He notes that the hardest thing to stop is entropy or the universe’s never-ending expansion, and the second hardest is bureaucracy, the government’s never-ending expansion.

To this, we might add Newton’s First Law, “objects at rest will stay at rest unless acted on by an external force,” the power of inertia. Bureaucracy’s immovable nature is the same. Bureaucrats want to stay right where they are unless forced to move. Some politicians … are like that.

But the shocker is how many activist, ideologically motivated, non-objective federal judges are now surfacing to help the bureaucracy stay unaccountable, wasteful, and misuse federal tax dollars.

Whether motivated by animosity toward President Trump or ideological kinship with Democrats, like those protesting across DC to keep waste and fraud undiscovered, the opinions are laughable.

A few make the point. Certain to be reversed, they seem written to permit more time for scrambling bureaucrats, contractors, and politicians to cover their misdeeds, reprogram money, and delete emails.

Still, that sitting judges would try to halt a president’s use of Article II powers to examine payment records for waste and fraud or to stop ideologically abusive programs, is stunning.

Nevertheless, a Rhode Island judge, John J. McConnell, declared he was unilaterally stopping the president from freezing programs to review them for waste and fraud, saying he found “no legal authority” for him to exercise such powers. Moreover, the “unilateral” executive act offended him.

Let’s re-read Article II. “The Executive power shall be vested in the President of the United States of America…” who has authority over “each of the Executive Departments.” He may appoint “officers of the United States” and “shall take care that the laws be faithfully executed.”

Longstanding caselaw makes clear a president is empowered to enforce laws, conduct foreign policy, and defend the country. Congress makes laws, courts interpret text. This is called “separation of powers,” and is a central feature of our founding structure.

Did the Founding Fathers intend one of some 870 Article III federal judges to assume the mantle of the president, and stop all the constitutional powers expressly given to a president? No, not likely. 

But this judge thinks so and has now gone further. On February 9, he had a virtual breakdown, and said the President was not obeying his sweeping order to restart all federal funding. He was livid, as leftist judges sometimes are, that the President “refused to resume disbursement of appropriated federal funds” in even a few cases. When Justice pointed out suspect programs, the judge did not care.

Before looking at a few other anti-Trump spasms, the irony in this judge’s words is profound, given President Biden’s decision on multiple occasions to ignore orders from the US Supreme Court.

Then we have a New York district judge, Paul Engelmayer, who decided having Trump’s designated examination team would be blocked from looking at federal payment records – including Treasury – in search of any waste, fraud, abuse, or overpayments.

Now there is a novel theory: That a president has the power to stop waste, fraud, and abuse, and an obligation to assure “laws are faithfully executed,” but cannot look at any of the key federal records.

Said the judge, “sensitive data” might exist, so anything collected now must be “destroyed.” Irony on irony. Trump and Musk hold the highest clearances possible, and the Treasury is where bills get paid, including those that may be wasteful, fraudulent, abusive, or overpayments.

Double irony, the Office of Management and Budget, Government Accountability Office, Inspectors General, and other watchdogs have already pointed out nearly a trillion in overpayments. Hmmm.

The judge then said Trump and Musk were out of line since their review might disrupt “health clinics, preschools, climate initiatives…” Maybe those areas are good places to look for fraud.

The judge was, as ideologues are, ready to throw in the kitchen sink. Any review of records – where else do you look for fraud? – “poses huge cybersecurity risks that put vast amounts of funding for the states … in peril,” he wrote.  Hmmm.

News alert: Trump is not going home. Neither is Musk. Neither are Americans who want answers, even if judges put sticks in wheels and Democrats whine, sue, and protest against transparency.

When you think you have seen the extremes, along now comes a federal district judge last week, Mr., Amir Ali. He demands Trump restart all the crazy foreign aid programs, whether wasteful, fraudulent, unaligned with US interests or not. Trump, Rubio, and DOGE were lectured by the judge, who demanded money be spent, Trump could “not suspend or cancel foreign assistance …”

Really? Well, a closing thought. As an Assistant Secretary of State, I ran two billion dollars in programs under Colin Powell and GW Bush, found waste, de-obligated tens of millions, canceled programs, fand orced contractors to write checks back to the American people – all entirely legal.

Bottom line: When leftist judges get pulled into the bureaucracy’s orbit, watch for those rules of physics. Bureaucratic entropy and inertia may be matched by … the power of power to corrupt.

Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC. Robert Charles has also just released an uplifting new book, “Cherish America: Stories of Courage, Character, and Kindness” (Tower Publishing, 2024).