I speak with former FBI Deputy Director Andrew McCabe here:

Back in December, I donated the entirety of my 2025 veteran’s disability benefits to nonprofits supporting LGBTQ+ people and immigrant communities being put directly in harm’s way by this administration. That included a $20,000 gift to It Gets Better.

Then listeners of our GLAAD Media Award-nominated podcast, The Daily Beans, did what they do best. They showed up and helped raise another $14,000.

That kind of generosity goes directly toward helping LGBTQ+ youth build safer, more affirming futures for themselves and their communities through It Gets Better’s work. And today, for Trans Day of Visibility, The Daily Beans Podcast is stepping up again with another $10,000 gift to It Gets Better, and I’m asking you to help me match it by the end of the day.

Because the reality is that trans youth need adult allies to step up more than ever right now.

Your support helps fund youth-led projects through It Gets Better: Changemakers, putting real resources directly into the hands of trans and queer young people who are already doing the work. This includes projects like queer youth conferences, Pride events, inclusive libraries and book programs, gender-affirming community spaces, and school-based efforts that make life better for LGBTQ+ students.

Don’t just take my word for it.

On today’s episode of The Daily Beans, Dana Goldberg and I talk with one of the incredible young people who have seen their advocacy and leadership thrive thanks to It Gets Better. His name is Jay, and he’s the kind of young person who makes you feel a little less cynical about the future. He’s a trans teen, an advocate for his peers, the captain of his school’s Science Olympiad team, helps lead a free hackathon for high schoolers, he’s a Spartan racer, and someone who is constantly finding ways to show up for his community.

And that’s just scratching the surface. In fact, if Jay didn’t already sound busy enough, he’s hosting a Trans Day of Visibility panel with some of his fellow Youth Voices ambassadors this evening on It Gets Better’s Twitch channel.

That’s one kid. There are so many others like him. And with your support, they can see how bright their futures can be.

If you’re able, join me. Let’s show trans youth that visibility is nice, but investing in their futures is better. Donate to It Gets Better today.

Thank you for helping us make it better for the next generation of LGBTQ+ leaders.

Allison Gill

On February 9th ProPublica reported:

A rainbow, a family portrait, a heart. These are the drawings found in handwritten letters from children detained at the Dilley Immigration Processing Center in South Texas.

In early February there were more than 750 families, nearly half of them including children, as well as some 370 single adult women being held at this facility. It is just one of many immigration centers across the country, but the only one holding families. Since the start of the Trump administration, the number of children in Immigration and Customs Enforcement detention has skyrocketed, increasing sixfold.

ProPublica received letters in mid-January from several children at Dilley. All but two of them had been living in the United States when they were detained. In their words and drawings, they convey how much they ache for creature comforts and describe the anguish of being trapped. They write about missing their friends and teachers, falling behind at school, having unreliable access to medical care when they’re sick — some say they’re sick a lot — and feeling scared about what comes next.

Three days later - during a House Homeland Security hearing, Rep. James Walkinshaw read some of the handwritten letters and shared drawings from the children held in ICE family detention — then questioned ICE acting director Todd Lyons about them.

Then on February 17th, Pablo Manríquez with Migrant Insider reported “Staff at the ICE concentration camp in Dilley, Texas have begun raiding the dormitories of kids and their parents to confiscate and destroy letters from the children.”

I’m suing ICE to get them back.

The same day Pablo Manríquez reported that ICE agents had raided the dormitories, Kel McClanahan at National Security Counselors filed a Freedom of Information Act (FOIA) request demanding the letters, but the Department of Homeland Security has not responded. So yesterday, we filed a lawsuit in the Federal District Court for the District of Columbia. We are also suing for the DHS Office of General Counsel memo that purports to legally justify entering homes without a judicial warrant.

National Security Counselors does this work with us pro bono, but you can support them with a tax-deductible donation here.

You can support MSW Media by becoming a free or paid subscriber.

You can read our full complaint here.

And you can watch my brief breakdown of this lawsuit by clicking the link below.

~AG

After the initial denial to share evidence, Minnesota state officials filed formal requests - called Touhy requests - to the Department of Homeland Security and the Department of Justice for access. Those formal appeals were largely ignored. The federal policy and practice of non-cooperation has led to state officials filing a federal lawsuit in the DC District.

Each federal agency has Touhy regulations. What are those? “Many federal agencies, including DOJ and DHS, have promulgated regulations governing requests for testimony or documents for use in litigation or investigations in which the agency is not a party. These regulations—commonly known as “Touhy regulations” after the Supreme Court decision, United States ex rel. Touhy v. Ragen (1951), that recognized their general validity—were promulgated under authority derived from the Federal Housekeeping Act, 5 U.S.C. § 301.

Touhy regulations typically set forth the factors that agency officials should consider in evaluating legal demands, including the applicability of relevant legal protections— such as privileges, confidentiality interests, or law enforcement sensitivities—and the need for appropriate disclosure notwithstanding these legal protections. These factors cannot, however, create any new privileges or substantive bases for withholding information.”

DOJ’s Touhy regulations expressly provide that voluntary disclosure of information to state and local law enforcement and prosecutorial agencies is permitted, without the need for any formal demand and without the need for compliance with the Touhy regulations. But the DOJ’s regulations do not authorize withholding merely because requested information contains sensitive law enforcement information. Instead, the regulations allow the DOJ to disclose such information when necessary for the “administration of justice.”

Like DOJ, DHS also permits agency officials to disclose information to state and local law enforcement authorities in conjunction with criminal law enforcement investigations and prosecutions, without needing to comply with the procedural requirements of the agency’s Touhy regulations.

In practice, and in the absence of voluntary law-enforcement-to-law-enforcement disclosure, Touhy requests operate as the mechanism through which state and local authorities generally must request testimony or documents from federal agencies or federal employees for use in legal proceedings.

In the cases of Alex Pretti, Renee Good, and Julio Cesar Sosa-Celis, the government denied or ignored the Touhy requests, so Minnesota is suing.

Some may ask why it took so long to file this lawsuit. In my experience, if you file a lawsuit without first exhausting all the steps necessary to get what you want, courts will often send you back to the drawing board to do your due diligence. That’s why the state took the time to file its formal Touhy requests, then waited a reasonable amount of time for the government to respond. Today, Minnesota decided it had waited long enough. As the lawsuit explains, “This [submitting formal Touhy requests] was done, notwithstanding Defendants’ demonstrated unwillingness to cooperate with Plaintiffs, to ensure that all avenues of redress were pursued.”

The lawsuit claims that the federal government’s failure to share investigative materials interferes with Minnesota’s sovereign duty to investigate whether federal agents violated the law within its borders - a violation of the Tenth Amendment’s protections of the rights afforded a state to exercise police powers.

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Minnesota is asking the court for the following relief:

1. To declare the government’s policy of refusing to share evidence is arbitrary, capricious, not in accordance with law, and in excess of statutory authority

2. To vacate DHS’s denial of Minnesota’s Touhy requests

3. To order the government to comply with the Touhy requests by furnishing the evidence, records, and testimony for all three matters

4. To declare DOJ acted unlawfully when it ignored the state’s Touhy requests

5. Declare that the government violated the Tenth Amendment

6. To remedy the Tenth Amendment violations by providing the evidence in all three cases

7. To award costs and attorneys’ fees

You can read the entire 43-page complaint here.

Photo by Allison Gill/MSW Media

https://www.miamiherald.com/news/local/crime/article315131144.html

BACKGROUND

On February 11th, 2025 MSW Media filed a Freedom of Information Act (FOIA) request to the USDS (DOGE) for “all emails sent or received by employees of the US DOGE Service between February 7th, 2025, and February 10th, 2025, inclusive.” And on February 25th, the First Amendment Coalition filed a similar FOIA request.

By March 28th, we got no response from the government, and filed a lawsuit for declaratory and injunctive relief for a violation of FOIA. In that complaint, we asked the court to find that DOGE is subject to FOIA, and that they must hand over the emails we seek.

Then in April, First Amendment Coalition amended our complaint to include records from Elon Musk’s cell phone(s), as it was widely reported at the time that Musk had offered his mobile number to Sean Duffy during a confrontation, and that he had offered it to multiple Republican Senators during a closed door meeting about DOGE. The amended complaint also asked the court to find DOGE and OMB in violation of FOIA for refusing to accept electronic FOIA requests through FOIA.gov, and require them to do so.

In June, the court transferred our case out of California to the District of Columbia, and the case was assigned to Judge Boasberg. Then in July, FAC filed a motion to preserve possibly responsive records:

Because the Government maintains that USDS is not an agency subject to FOIA and that, even if it is, Musk was not a USDS employee, USDS has not performed a search for responsive records. Because it has not performed a search for responsive records, it has not identified any responsive records. Because it has not identified any responsive records, it has not excluded any responsive records from destruction. This problem is exacerbated because the Government refuses to answer even basic questions about the matter, such as if the cell phone in question is even in Government custody or if it was Musk’s personal cell phone.

In August, Judge Boasberg granted that motion. However, the government only agreed to preserve communications on Musk’s “EOP” phone - Executive Office of the President. They also reiterated their claim that Elon didn’t work for DOGE, but was a special advisor to the president. They simply didn’t acknowledge that Musk may have used a private phone as well. So we filed another motion to compel the government to preserve comms on that phone, too.

DOJ fought this tooth and nail, saying they shouldn’t have to go on a “wild goose chase” to see if Musk gave a private phone number to Sean Duffy and Republican Senators.

After holding a hearing on the matter, Judge Boasberg issued the following minute order on February 3rd:

As discussed in today's hearing, the Court ORDERS that Plaintiff's 48 Motion to Compel is GRANTED to the extent that Defendants shall make a good-faith inquiry of Secretary Duffy and the applicable Senators whether they have a record of or can recall any telephone number(s) that Elon Musk gave to them between January 20 and May 31, 2025. Defendants shall file a Status Report by February 24, 2026, describing such efforts and results.

The government didn’t like that either, and filed a motion to reconsider - meaning they asked to court to change the order because they didn’t think they should have to ask senators for Elon’s phone number because of the speech or debate clause and separation of powers.

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Tonight, Judge Boasberg ruled on their motion to reconsider. He writes:

USDS’s Motion for Reconsideration asserts multiple objections to the Court’s February 3 Order. For example, it protests that requiring it to ask Senators for information amounts to an end run around Congress’s exclusion from FOIA obligations. It also maintains that such a proactive investigation exceeds what FOIA requires the Government to do when faced with a disclosure request.

It is true that Congress is exempt from FOIA’s disclosure obligations, and that agencies have no duty under the statute to acquire new records of which they do not already retain possession or control. But the Court’s Order is not limited by the reach of FOIA. On the contrary, “[f]ederal courts have the inherent power to issue orders preserving information relevant to the claims and defenses brought before them.” United States ex rel. Staggers v. Medtronic, Inc., 2022. The Court has thus tasked USDS with inquiring about Musk’s number so that the relevant records may be identified for preservation. If Musk did conduct government business on a private phone, the related communications would be equally subject to disclosure — and equally critical to preserve — as any records on his government-issued phone. In this sense, the information USDS is asked to acquire serves a purely intermediate function: identifying Musk’s number helps it preserve the records that are the actual subject of Plaintiff’s FOIA request. That single piece of information the Government would obtain — Musk’s number — need not be disclosed to Plaintiff in the end. USDS’s concerns about the applicability and scope of FOIA are thus misplaced; Musk’s number is not the subject of Plaintiff’s FOIA request, and its acquisition is not governed by the bounds of that statute.

While there may be a limit to what actions USDS can reasonably be expected to undertake in service of a preservation order, that limit would come from this Court’s assessment of the good faith of the Government’s efforts, not the contours of FOIA’s disclosure obligations. In any case, the Court finds that USDS’s efforts so far have not come close to that limit. The Government’s worries about a slippery slope of ever-expanding preservation obligations are therefore premature; there will be ample opportunity in future proceedings for the parties and this Court to carefully consider if further preservation measures are needed and what form those measures may take.

USDS additionally raises vague separation-of-powers concerns with ordering the Executive Branch to contact Senators. In doing so, it provides no relevant case, constitutional provision, or even line of reasoning to support its argument, and the Court remains dubious of the merits of such an objection.

Still, the Court will modify its Minute Order to remove the Senator-inquiry mandate, as it believes a different line of investigation may be equally fruitful while avoiding USDS’s concerns. At the hearing and in its briefing, Plaintiff raised the possibility that USDS could instead review its own records to search for any mentions of Musk’s private phone number. (That’s the thing that the government fought tooth and nail against, saying it was too much work.)

Believing that this course of action is both productive and permissible, and in light of the Government’s objection to its first proposal, the Court will order a review of USDS records instead.

Long story short, the government didn’t want to have to ask Senators for Musk’s phone number, so the judge is ordering the government to do what our lawyer suggested at the hearing: to look through DOGEbro’s phones for comms with Elon’s private phone instead.

Defendant United States DOGE Service shall take the following steps to comply with the Court’s Preservation Order: 1) Make a good-faith inquiry of Secretary Duffy whether he has a record of or can recall any telephone number(s) that Elon Musk gave to him between January 20 and May 31, 2025; and 2) Review USDS devices and records to identify any telephone number(s) Elon Musk may have used to communicate with government officials between January 20 and May 31, 2025; and Defendant shall file a Notice by April 3, 2026, informing the Court of its efforts and any accompanying results.

Our lawyer, Kel McClanahan at National Security Counselors explains it like this:

“We asked the government to search their records and figure out what numbers Musk used. They said no. We asked the judge to make them. They said it would be too much work. So the judge compromised and told them they could just ask a bunch of Senators what numbers he gave them. Then the government came back and said “But we don’t want to ask the Senators; please don’t make us.” And they brought their official government-issued monkey’s paw. So now they have to do the work they didn’t want to do because it was too much work all because they couldn’t leave well enough alone. Congrats DOJ; you’re the MVP of the Plaintiffs’ legal team today.”

BUT THAT’S NOT ALL…

Kel continues: “And all the while, they managed to throw a few more sticks on the bonfire that used to be the presumption of regularity. When was the last time you heard a judge say something like “[DOJ] provides no relevant case, constitutional provision, or even line of reasoning to support its argument, and the Court remains dubious of the merits of such an objection?”

You can read the entire 5-page ruling here.

If you want to support our lawyer, who does this work pro-bono, you can make your tax deductible donation to National Security Counselors here.

~AG