Morning Report

February 10, 2026 — Morning Report

Feb 10, 2026

0210 AM TT·AM YT 0210

The court just denied the government's motion for a protective order that would have shielded Elon Musk from being deposed in the USAID/DOGE case. He's coming in.

Twenty-six anonymous plaintiffs sued over DOGE's dismantling of USAID, seeking to depose Elon Musk and other ranking officials. The government moved for a protective order under the Apex Doctrine — the rule that says you can't drag the highest-ranking government officials into court when you don't actually need them, because they're busy running the government. The court denied it on three grounds: Musk may not even have been a government officer (the administration's own argument for how he could act without Senate confirmation), no privilege attaches to his mental processes in making decisions he supposedly made as a private citizen, and — unlike a case where the lieutenant governor is being asked to read regulations aloud — there is literally no one else who can answer what Elon Musk was told and what he heard. He is the only witness. No protective order.

Administrative law

Constitutional question: Whether someone who acted with de facto executive authority but without Senate confirmation as an officer is subject to the same procedural protections for high-ranking government officials — and what it means that the government's own argument for Musk's authority (he wasn't an officer) undermines its argument for his protection (he was an Apex official).

Dunphy v. Giuliani · NY 65003-23

A Manhattan judge withheld final judgment on Rudy Giuliani's motion to dismiss a sexual harassment case — and noted that even Giuliani's own lawyers seem to agree part of the claim has legs.

The complaint against Giuliani alleges unlawful abuse of power, wide-ranging sexual assault and harassment, wage theft, and other misconduct by Giuliani and his companies. The judge declined to dismiss, noting the case has sufficient basis to proceed. Bryan's editorial aside: between Giuliani's bankruptcy and hundreds of millions in judgments against him, the more pressing mystery is how he's paying for lawyers at all. [NEEDS TRANSCRIPT REVIEW — limited detail in transcript; Bryan treated this as a brief update.]

Civil litigation

Constitutional question: None flagged.

Community Economic Development Center of Southeast Massachusetts v. Bessent · 25-cv-12822

The Trump administration fought hard to keep access to IRS records on undocumented immigrants — because those immigrants had paid their taxes. The court said no.

The administration had been cross-referencing IRS taxpayer data with ICE immigration enforcement, sharing approximately 47,000 records of non-citizen taxpayers with ICE to facilitate deportations. The court enjoined the practice, holding that it made voluntary tax compliance impossible: the government cannot simultaneously require undocumented immigrants to pay taxes and use their tax records to deport them. Bryan framed this as "entrapment territory" — the government encouraging people who are otherwise following the law to break it makes the underlying law unenforceable. The IRS and DHS are barred from further collaboration in the scheme.

Tax lawimmigrationDHS data-sharing for immigration enforcement enjoined.

Constitutional question: Whether using tax return data as an immigration enforcement tool creates a constitutional problem — either a Fifth Amendment compelled self-incrimination issue (filing a tax return leads to deportation) or a due process problem when the government makes lawful conduct functionally impossible.

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