A federal judge is allowing President Donald Trump to move forward with his takeover of a federally funded foundation that provides aid to Africa, but he warned the Trump administration Tuesday not to use the short-term victory as a license to dismantle the agency.
U.S. District Judge Richard Leon turned down the temporary restraining order U.S. African Development Foundation President Ward Brehm sought to keep him in his job and prevent State Department official Pete Marocco from taking control of the foundation. Leon’s decision followed the expiration of a brief stay he imposed last week allowing Brehm to remain president of the foundation.
Leon, an appointee of President George W. Bush, said Brehm wasn’t entitled to emergency relief because there was no indication he would suffer irreparable harm if removed from his position.
“Brehm has not identified any cognizable irreparable harm to himself as opposed to potential harm to the agency and its partners,” Leon wrote.
But Leon also hinted that the Trump administration’s victory could be short-lived, noting that there is a substantial question about whether Trump’s effort to install Marocco in the post temporarily overstepped his authority.
The judge raised doubts about an expansive executive power claim the Trump administration leveled in response to the suit: Trump has the authority under the Constitution to name people to vacant positions on a temporary basis even when a law on the books suggests he cannot.
“The court has not found — and the government has not identified — any other statute that provides President Trump with the authority to appoint Marocco as the acting Chairman of the board,” Leon wrote in his 10-page ruling.
During a hearing earlier in the day, a Justice Department attorney argued that the Constitution gives Trump the power to make acting appointments for a “reasonable” period of time.
“It comes from his inherent authority under Article II … to make sure the laws are faithfully executed,” Deputy Associate Attorney General Abhishek Kambli said.
The lawsuit Brehm filed last week rests in part on his rather arcane claim that four members of the foundation’s board were never fired because Trump White House aides sent emails with notice of the terminations to addresses they appear to have simply guessed at — and which the board members contend they don’t use.
Leon declined Tuesday to address the issue of whether the allegedly defective notices were enough to leave the board members in their posts. But he did note that the Trump administration provided no evidence to counter Brehm’s claims the board members were never properly informed about their dismissal.
“The Government has not provided the Court with an authenticating declaration, genuine printouts of the emails, not any sort of attestation or proof that the emails did not bounce back,” the judge wrote, observing that one board member’s name was misspelled in a seemingly improvised email address.
In a Feb. 19 executive order, Trump listed USADF among several other agencies he declared “unnecessary” and targeted to be “eliminated to the maximum extent consistent with applicable law.”
During the Tuesday hearing, Brehm’s lawyer Joel McElvain said members of Elon Musk’s Department of Government Efficiency accessed the foundation’s offices under false pretenses and were certain to cripple the operation.
“There will be no agency … to return to,” McElvain said. “They will destroy the records. They will destroy the database.”
But Leon said Brehm’s lawyers had no solid proof that USADF faced the same fate as the U.S. Agency for International Development, which has been essentially dismantled and folded into the State Department, largely at Marocco’s direction.
“As far as I can tell … this is speculation,” the judge said during the hearing.
Leon said he was accepting the government’s assurances that the Trump administration’s plan was not to shut down the foundation and all of its operations. And he warned that he would call members of the DOGE team into court to explain that under oath.
“This shuttering concern that plaintiff has, I share that concern,” the judge said.
