Ah, Denuvo. It’s been several years since we checked in on this once vaunted DRM tool that billed itself as undefeatable. The end of PC gaming piracy was said to be at hand, at least for any title using Denuvo. Then, predictably, the cracking community saw the target the company had put on its own tool and got to work. They were first able to crack games using Denuvo in months, which turned into weeks, which turned into days, which eventually turned into it being cracked essentially on a game’s launch day.

So, how’s it been going for Denuvo since? Well, it’s essentially been rendered completely useless at this point.

As recently reported by Tom’s Hardware, on April 27, a large Reddit thread tracking which games using Denvuo DRM still needed to be cracked or bypassed officially hit zero. (This list tracks games that don’t require an online server connection, not MMORPGs and other games that do.)  What that means, effectively, is that according to Denuvo modders and hackers, the DRM tech is no longer able to stop pirates from downloading and installing games for free. This milestone for hackers is largely thanks to the MKDev collective and modder DenuvOwO. It was these people who created the hypervisor-based bypass (HVB) that installs a kernel-level driver to bypass Denuvo’s DRM checks.

Technically, Denuvo is still in the game, but it isn’t functioning as it should, and pirates can play without paying. And there is already some evidence that bypassing Denuvo has led to performance improvements in titles like Resident Evil Requiem, which might push some people to use the bypass even if they bought the game legally. We saw this in a previous Resident Evil game when hackers bypassed Denuvo in 2021.

This is always the life cycle of DRM in video games. Whatever audacious claims a DRM company might want to make early on with its product, the technology is eventually defeated to one degree or another and all that is left are the byproducts of the DRM that serve to do nothing other than annoy legitimate customers of a video game. If the technology is so intrusively bad that even legit buyers of a game want to crack it out of their games, and the pirates are completely unencumbered by it as well, then it’s a wonder why anyone would bother including it in their games to begin with.

DRM is pretty much always bad. The desire to protect a game from pirates is understandable, but ultimately pointless. There is almost never enough benefit in terms of generating more sales by trying to fight piracy to be worth pissing off your actual paying customers. And tactics such as what publisher 2K has decided to do in the wake of Denuvo’s complete failure aren’t any better.

2K Games has apparently begun adding 14-day online check-ins to some of its PC games. The check-in has apparently been added to NBA 2K25, NBA 2K26, and Marvel’s Midnight Suns. These games now reportedly use a “fixed offline authorization token” that expires after two weeks. Once that happens, the game will not be playable until you connect to the internet and let the game ping Denvuo to get a new token. Pirat Nation and hackers are claiming this new countdown isn’t properly disclosed on the games’ Steam Store page or in each title’s respective EULA.

I’ll just add that pushing this new requirement out via an update to existing purchases is also a problem. Customers bought these games with the understanding of how they would work or not when offline. 2K suddenly changing the product in a meaningful way after it had already been purchased is a flatly anti-consumer move.

And I have no doubt that this online check requirement will be defeated by the same folks who defeated Denuvo. This arms race continues, but it shouldn’t. Why not focus on making great games and connecting with your paying customers to give them reasons to actually pay instead?

This story was originally published by ProPublica. Republished under a CC BY-NC-ND 3.0 license.

Counterterrorism czar Sebastian Gorka is one of the most controversial figures in the Trump administration, a gate crasher in the buttoned-up world of national security. 

In a field where quiet professionalism is revered, Gorka is loud and mercurial. With a booming, British-accented voice, he describes U.S. operations turning suspected terrorists into “red mist” and stacking bodies “like cordwood.” He wears a lanyard inscribed with “WWFY & WWKY,” referencing a line from President Donald Trump: “We will find you and we will kill you.”

It is a testament to the frenzy of Trump’s first year back in office that even the colorful Gorka had faded into the background as the nation reeled from a mass deportation campaign and sweeping cuts to federal agencies. That changed this February with the launch of the U.S.-Israeli war on Iran, which heightened the risk of retaliatory attacks on American citizens and interests around the world. Overnight, there was renewed interest in who leads White House counterterrorism efforts.

My editors and I decided it was time to break out the Gorka files. For six months, I had monitored Gorka’s public remarks for clues about the status of his long-promised national counterterrorism strategy and updates on deadly U.S. strikes in Africa and the Middle East. It had started as old-fashioned beat reporting; I cover counterterrorism, and he’s the senior director for counterterrorism at the National Security Council.

The trove of details I collected from months of Gorka’s public statements, along with interviews with more than two dozen current and former security officials, were woven into a ProPublica investigation published in April. It’s an in-depth look at Gorka and his role in the hollowed-out national security apparatus after a year of leadership turmoil and personnel loss as Trump shifted resources toward his immigration agenda.

ProPublica reached out to Gorka for comment in multiple ways. He never responded, instead lashing out at me via posts on X before the story published. He told his 1.8 million followers that I was anti-American and accused me of writing a “putrid piece of hackery.”

There went my hopes for a good-faith exchange. After discussion with my editors, ProPublica decided to note the insults in the story. It was another revealing layer to the combustible leader Trump had installed in a sensitive national security role. A former senior official noted the eruption was “Gorka being Gorka.”

Increasingly, journalists are pushing back against attacks on our credibility by “showing the work,” guiding readers through the reporting process to dispel myths and foster transparency. In that spirit, I wanted to take this opportunity to show how basic beat reporting — fact-checking the assertions of a powerful figure — led to a broader story about the state of the U.S. counterterrorism mission at a critical moment.

I’ve covered the post-9/11 counterterrorism apparatus for more than two decades, so Gorka was a familiar presence, an academic known mainly for a well-documented hostility toward Islam, which he has portrayed as inherently violent. Gorka has dismissed criticism of this portrayal as “absurd,” saying his focus is “the war inside Islam” between radicals and Western-aligned Muslim leaders. He also served as an adviser under the first Trump administration but was ousted after just seven months amid White House infighting. 

At the time, dozens of lawmakers had demanded his resignation, and investigative outlets detailed links — which Gorka denies — to the Hungarian far right. After the bruising exit, Gorka waited patiently as the Republican Party swung harder right in the Biden era and eventually returned Trump to office.

Gorka was appointed White House counterterrorism czar — he called it his dream job — in a new era without the “adults in the room,” as some officials referred to the more moderate advisers around Trump in the first term. Privately, national security personnel expressed alarm that intelligence about threats was in the hands of an official who reportedly struggled to get security clearance in the first Trump administration.

To me, Gorka was a weather vane for the administration’s national security thinking: Would his “war on terror” mindset clash with the more isolationist “America First” camp that wanted no more forever wars? How would a vast security apparatus built for the Islamist militant threat reorient toward a new focus on far-left “antifa” militants and Latin American drug cartels newly designated as terrorist organizations?

I was especially interested in the status of a national counterterrorism strategy Gorka had been promising since taking office; such documents typically lay out an administration’s approach to fighting the most urgent threats. Though Gorka had described his plan as “imminent” and “on the cusp” of release, months ticked by without any sign of it.

To glean clues about the strategy, I made it my mission to watch every news appearance, read every interview and listen to every podcast featuring Gorka since December 2024, the month before he entered the White House. It took some digging — he rails against the mainstream news media and prefers to appear (largely unchallenged) on niche pro-Trump news outlets and at conservative think tanks.

I developed a nightly ritual. After dinner with my family, I’d hole up to listen to Gorka, hunting for the scraps of news buried in his over-the-top vocabulary and graphic storytelling. Alongside my note categories for “Trump Anecdotes” and “Militant Death Tolls” was one for “Big Words.” For example, the president calls Joe Biden “sleepy”; Gorka prefers “somnambulant.”

Weeks into the reporting, in February 2026, I realized Gorka’s speech had burrowed into my brain when I watched a silly video and thought, in his voice, “Preposterous!” It was time for a break.

I reread my notes from hours of listening sessions. I interviewed counterterrorism analysts and national security watchdog groups about Gorka and his remit. Veteran national security personnel added context and analysis. Just as my editors and I were discussing how to turn the findings into a story, the Iran war began and the spotlight on Gorka grew brighter.

Much of the material on air strikes and the dismantling of guardrails was first incorporated into a story I reported about the Pentagon moving away from more robust civilian protections, a reversal highlighted by a deadly U.S. attack on a girls’ school in Iran. Other reporting ended up in the story about Gorka’s phoenixlike return to the White House and what it says about the Trump counterterrorism doctrine.

Gorka didn’t respond to requests for comment beyond the hostile posts on X. When I asked the White House for comment, spokesperson Anna Kelly praised Gorka’s “incredible job” but sidestepped questions about his approach. “Anyone attempting to smear him and the President’s national security team is only revealing that they haven’t been paying attention for the past year,” Kelly wrote, “as anyone with eyes can see that our homeland is more secure than ever.” 

As of writing, exactly two months into the Iran war, Gorka’s counterterrorism strategy has yet to appear.

Not this again. For many years now there have been a series of ongoing lawsuits between E. Jean Carroll and Donald Trump, involving a variety of issues, but mainly whether or not he sexually assaulted her back in the 1990s and, separately, whether he defamed her in claiming he’d never met her after she accused him of sexual assault. As I’ve explained previously, I think the defamation claim part of it is pretty weak, but back during the first Trump administration, he had sought to have the DOJ substitute in and take over for him in the defamation case, which would have immediately ended the case, as you can’t sue the government for defamation. Having the DOJ substitute in for a government employee is allowed under the Westfall Act, and is designed to allow the US government to become the party when a government employee is sued for doing something in the course of their job (the normal example is if a government driver hits someone with a vehicle).

Back in 2020, this failed, as the judge pointed out that denying you raped someone is not part of the president’s official job.

Eventually the various cases made it to trial and the two juries that heard the cases awarded Carroll nearly $88.3 million across two verdicts. Since then Trump has continued to try to avoid ever having to pay.

The case has bounced around a bunch, and Trump had asked for a do-over in the Second Circuit in the latest round. In rejecting that, one of the judges, who had been a part of the panel for an earlier ruling, described how freaking exhausting all this is:

These are the third and fourth times our Court has voted to deny en banc rehearing of rulings in this case, which concerns defamation and sexual assault claims brought by E. Jean Carroll against Donald Trump. The two per curiam decisions at issue in this round of en banc voting — the fifth and sixth opinions by our Court in this case — arise from two related suits. The first (“Carroll I”) asserted defamation claims based on statements made by Trump in June 2019 while he was President, and the second (“Carroll II”) asserted a sexual assault claim as well as defamation claims based on statements made by Trump in October 2022 after he left office. Although Carroll I was filed first, Carroll II was tried first; in May 2023, the jury in Carroll II found, following a nine-day trial, that Trump sexually abused Carroll at Bergdorf Goodman in 1996 by digitally penetrating her and that he defamed her with comments he made in 2022 after he left office. The jury awarded Carroll $5 million in compensatory and punitive damages, and this Court affirmed, Carroll v. Trump, 124 F.4th 140 (2d Cir. 2024) (per curiam) (“Carroll 4”), and denied rehearing en banc, 141 F.4th 366 (2d Cir. 2025).

Carroll I was tried in January 2024. The jury awarded Carroll $83.3 million in compensatory and punitive damages. On appeal of the judgment, the panel issued two decisions. First, in April 2025, while the appeal was pending and after it had been fully briefed, Trump moved before us to substitute the United States as the defendant under the Westfall Act, 28 U.S.C. § 2679. The panel denied the motion by order last June, and issued an opinion explaining our reasoning in August. Carroll v. Trump, 148 F.4th 110 (2d Cir. 2025) (per curiam) (“Carroll 5”). Second, in September, the panel rejected Trump’s attempt to reassert a defense based on presidential immunity, and affirmed the district court’s rulings and the jury’s damages award. Carroll v. Trump, 151 F.4th 50 (2d Cir. 2025) (per curiam) (“Carroll 6”). It is these two panel rulings — Carroll 5 and Carroll 6 — that are the subject of these en banc petitions.

Trump and the United States have petitioned for rehearing of Carroll 5, and Trump has petitioned for rehearing of Carroll 6. Neither petition identifies how our decisions conflict with precedent of this Circuit, another Circuit, or the Supreme Court, or pose a question of “exceptional importance” justifying en banc review.

Having lost yet again, Trump has now appealed to the Supreme Court — where he’s presumably hoping the Court that handed him sweeping presidential immunity will ride to the rescue again. After all the only two notable exceptions to the Court backing him were specifically economy-related: blocking the firing of Fed members and striking down the illegal tariffs. Protecting Donald from sexual assault and defamation claims doesn’t fit into that bucket.

And, on Tuesday, the DOJ filed a motion with the Supreme Court saying that it is planning to ask to (once again) substitute itself in for Trump as the party under the Westfall Act. If I’m reading all this correctly, in the same case the DOJ is asking to appeal the earlier failure to be able to substitute itself in under the Westfall Act, it’s also still asserting its intent to actually substitute itself in.

Either way, this is a stunningly egregious move by Trump’s DOJ — once again acting as his personal legal fixer rather than a defender of the Constitution and the rule of law. The appeals court has made clear multiple times that he can’t use the Westfall Act to effectively force the case into a position where it must be dismissed, in part because the government waived the argument years ago and it’s too late to try to bring it back. In its ruling last week it explained:

The typicality ended there, as the Westfall issues were then litigated in three courts over the course of four years. … The critical juncture for present purposes was when the Westfall Act issue was presented on remand before the district court in June and July 2023. At that time, the Attorney General expressly declined to issue a Westfall certification or to otherwise seek substitution, and Trump did not take any action with respect to certification or substitution. … see 28 U.S.C. § 2679(d)(3) (allowing the employee to petition for certification where the Attorney General has declined to certify). The Westfall issue lay settled until April 2025, when the Government and Trump revived their efforts to have the United States substituted as the defendant in the case by moving for that relief in this Court….

The Carroll 5 panel denied the Government’s post-trial motion to substitute for three separate reasons: (1) the Government and Trump had waived substitution by failing to request it before the district court prior to trial; (2) the 2025 request was untimely under the Westfall Act; and (3) as a matter of equity in light of the procedural posture of the case. … These rulings were correct as a matter of law and did not warrant en banc review.

Basically: the Attorney General explicitly declined to seek Westfall certification back in 2023, Trump didn’t push back at the time, and the case went to trial and verdict. The Trump DOJ’s obvious counterargument — that a different administration gets a fresh shot at this — isn’t how it works. The waiver belongs to the United States as a party, not to whoever happens to be sitting in the AG’s chair at any given moment. The courts have said so, repeatedly and clearly.

But now it’s heading to a Supreme Court that has already declared Trump immune from basically anything in court, so who the hell knows where it goes.

There’s so much craziness going on right now that this barely registers as a blip. A jury found the President of the United States liable for sexual assault and defaming his victim. He’s been trying to make that verdict disappear for years. Now he’s got the Justice Department helping him. And it’s not even among the five most alarming things involving Donald Trump that day.

Maybe this isn’t just another vindictive prosecution by the Trump administration. But we’re going to need a lot more evidence to the contrary to abandon this conjecture:

The FBI searched the Virginia state Senate leader’s hometown office and her neighboring cannabis shop Wednesday, bringing into public view what two people familiar with the matter told The Associated Press was a corruption investigation.

One of the people said the investigation into Democratic Sen. L. Louise Lucas was opened during Democratic former President Joe Biden’s administration. Both spoke on condition of anonymity to discuss an ongoing criminal investigation.

While the probe apparently has spanned administrations of different political parties, Democrats viewed it against a backdrop of recent, politically charged inquiries during President Donald Trump’s tenure. Lucas, who has been a senator for 34 years, was a prominent voice in Virginia’s recent redistricting effort, a Democrat-led initiative to counter Republican redrawing pushed by Trump.

If you’re not familiar with why Trump might be targeting L. Louise Lucas, here comes some remedial instruction. In April, Virginia voters approved redrawn voting districts that could conceivably shift the Democratic Party’s Congressional majority from 6-5 to 10-1. This was done in response to the GOP’s unprecedented mid-term gerrymandering — something that’s usually done every 10 years or so as census data begins to trickle in.

The GOP has no problem with redrawing districts to disenfranchise voters, most of them minorities. And the Supreme Court recently gave its blessing to the Second Coming of Jim Crow, which has resulted in red states rushing to maintain GOP supremacy by excluding voters based on their racial makeup. Virginia just did what a lot of red states are already doing, but the party in power went blue. This worked, which made MAGA people angry, resulting in them arguing against the same gerrymandering they’re usually fond of.

Louise Lucas not only helped get this referendum passed, she’s perfectly happy to take shots at federal-level Trump doormats while doing so:

If you can’t see the X.com embed, it’s Louise Lucas responding to Senator Ted Cruz’s whining about Virginia’s “brazen abuse of power and insult to democracy” (keep in mind, Cruz is saying it’s “an insult to democracy” for voters to pass a referendum with a majority of the popular vote) with a splendidly saucy:

You all started it and we fucking finished it.

So, that’s Exhibit A (at minimum!) that suggests this raid wasn’t really about whatever may or may not have been under investigation prior to Trump’s return to office. Trump has already made it abundantly clear he won’t tolerate gerrymandering that doesn’t hand his party more seats in Congress. In the case of Virginia and L. Louise Lucas, this includes attacks on social media targeting the Virginia governor, as well as referring to the Virginia referendum vote as a “RIGGED ELECTION.”

Another point in favor of “vindictive prosecution” is this: it’s being spearheaded by the same DOJ office that has tried (and failed) to convict political enemies of Trump like former FBI director James Comey and New York Attorney General Letitia James.

Then there’s this: somehow Fox News reporter Alex Hogan just happened to be on the scene in Portsmouth, Virginia to cover the FBI’s raid. The coincidence looks even more unlikely when you take into consideration that Alex Hogan is (to quote Fox’s bio page) “a London-based correspondent.” Somehow, magically… she was suddenly an entire ocean away and right in front of the Portsmouth, VA offices being raided.

Fox News seems to know how bad this looks. Whoever’s doing damage control at Fox has hastily rewritten Hogan’s bio page to make it appear as though she was just handling the sort of stuff she’s been doing for an unknown length of time as, um, someone not so “London-based”?

Here’s how this page looked in February 2026, before anybody started asking questions about Fox’s Johnny-on-the-spot raid coverage:

Here’s how it looks now, now that people are asking questions:

There’s more anecdotal evidence out there, including a report that a former interim US Attorney for Eastern District of Virginia had been pushing this investigation because “it would help Trump in the mid-terms.”

Now, there’s still a lot we don’t know about this, other than what’s been said by a couple of anonymous sources. No court documents have been filed. No criminal charges have been brought. And no one at the FBI or DOJ seems willing to share any details with the rest of the nation.

But the odds of this being anything other than a politically motivated effort are next to zero. The DOJ and FBI have shed any pretense of being neutral parties solely interested in seeking justice. For the entirety of Trump’s second term, they’ve done nothing but demonstrate their willingness to do whatever’s demanded of them, even if it’s illegal, unconscionable, or absolutely unprecedented. This looks like more of the same. If this administration wants to prove us wrong, it’s going to have to have to clear the trust hurdles it has spent the last 18 months erecting.

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Back in early 2025, DOGE bros Justin Fox and Nate Cavanaugh were handed multiple government roles with a simple mandate: go find the woke stuff and kill it. Fox and Cavanaugh had zero relevant experience for any of it — at one point Cavanaugh, a twenty-something college dropout whose main prior credential was a patent startup, was put in charge of the United States Institute for Peace. One of their assignments was the National Endowment for the Humanities, which they apparently concluded was irredeemably woke and needed to go.

Their review process for millions of dollars in previously approved grants consisted almost entirely of asking ChatGPT this:

“Does the following relate at all to DEI? Respond factually in less than 120 characters. Begin with ‘Yes.’ or ‘No.’ followed by a brief explanation. Do not use ‘this initiative’ or ‘this description’ in your response.”

And that was it. They then relied on the results of that as a reason to cancel millions of dollars in grants that had already gone through a detailed approval process. You’ll also recall, that these two bros who probably thought themselves masters of the universe in early 2025, flipped out that the plaintiffs in the case against them, the American Council of Learned Societies, put their depositions on YouTube, where you could see them unable to define DEI, and unable to try to defend why they canceled various grants for being woke. Turns out they didn’t like facing any scrutiny themselves.

Judge Colleen McMahon has now dropped a scathing 143-page ruling finding that feeding grants to ChatGPT and relying on its “why this is woke in 120 characters” output meets the “arbitrary and capricious” standard — making these cuts unlawful.

Fox testified that he did not define “DEI” for ChatGPT and that he did not have the slightest idea how ChatGPT understood the term…. Nor did Fox ask ChatGPT to factor in the purpose, methodology or scholarly substance of a project – which would have required familiarity with the underlying grant materials

Because the inquiry was framed only in terms of whether a project “relate[d] at all to DEI” (whatever that might mean to ChatGPT), projects whose abbreviated descriptions contained general references to “history,” “culture,” or “identity” were frequently identified by ChatGPT as relating to DEI. For example, a project to recover and analyze ancient writings attributed to Moses but excluded from the canonical Hebrew Bible and preserved in fragmentary form (e.g., the Book of Jubilees and the Testament of Moses) was classified as DEI because it claimed to “provide important insight into Jewish thought from two thousand years ago, complementary to insight from the Dead Sea Scrolls and the New Testament.”… The project description reflects a highly technical effort involving multispectral imaging, textual reconstruction, and the recovery of deteriorated source materials…. Yet, the assigned rationale consists of a single sentence linking the project to “Jewish thought,” which ChatGPT considered to be aligned with “DEI” goals.

The judge highlights some other whoppers as well:

nother grant supported a study of the Chinese government’s persecution of the Uyghur people. As described in the spreadsheet, the project documented surveillance practices, detention facilities, coercive assimilation policies, restrictions on language, religion, and cultural practice, and the effects of those policies on Uyghur communities in China and in the diaspora. In other words, the project concerned state policy, human-rights conditions, and the preservation of cultural and religious identity under conditions of repression by the Chinese government. Yet ChatGPT classified the project as “DEI,” Dkt. No. 248-11, at 22, apparently because it concerned the threatened erasure of a particular ethnic and religious group, albeit one located in a foreign country. Disfavoring this grant on “DEI” grounds, or any grounds, is especially difficult to square with the United States’ longstanding, bipartisan condemnation of China’s treatment of the Uyghurs, including during the first Trump Administration.

Judge McMahon clearly understands that ChatGPT is a “generate approximately what you want” engine, not a tool for deeply analyzing grant applications.

The record reflects that these ChatGPT determinations were generated without any additional context beyond the cursory spreadsheet descriptions themselves. Given what courts now know about the hallucinatory propensities of ChatGPT and similar generative-AI tools, it would hardly be surprising if ChatGPT inferred, from DOGE’s repeated requests, that Fox and Cavanaugh were looking for reasons why grants could be characterized as DEI – and therefore terminable – and supplied “rationales” simply in order to satisfy the user’s perceived demand. The utter lack of reasoning behind so many of its “rationales” certainly suggests as much.

This is one of the most frustrating things in lots of other stories about LLMs, in which the media and politicians and everyday users insist some sort of actual intelligence, thought, or intent behind outputs. When all any of them do is try to generate a plausible sounding response to your request. Judge McMahon understands that. And either Fox and Cavanaugh are too technically illiterate to understand that or, more likely, they didn’t give a shit. They just wanted to check boxes so they could cancel as many grants as they wanted.

ChatGPT is certainly good at doing your homework for you, though.

The only problem is that the law requires actual reasons and a real process for something like this — it can’t just be arbitrary. But feeding it to ChatGPT to give you the reasons why you can cancel these grants, is absolutely arbitrary.

There can be no serious dispute that the review process implemented by DOGE did not conform to, or even resemble, NEH’s ordinary grant-review process, which itself was designed to comply with the mandates of its authorizing statute. The statutory process contemplates individualized evaluation by subject-matter experts, advisory review, Council involvement, and final action by the Chairperson. See supra Sections I(A), (C). And once grants had been awarded, the Act does not authorize a wholesale post-award revocation based on new ideological criteria. Rather, for awards made under § 956(c), the Act provides for post-award evaluation, financial and project reporting, and potential termination only when the Chairperson determines that a recipient has substantially failed to satisfy the purposes for which the assistance was provided or the applicable statutory criteria.

DOGE’s process, by contrast, rested on abbreviated spreadsheet descriptions and a binary ChatGPT prompt asking whether each project “relate[d] at all to DEI.” Fox then folded the ChatGPT-generated rationales into the final spreadsheets used to identify grants for termination, thereby combining DOGE’s AI-generated classifications with NEH staff recommendations. … Nothing in the record suggests that NEH had ever before employed such a process before March 2025. And nothing in the authorizing statute permitted it.

There’s also the fact that DOGE has no authority to cut off these grants:

DOGE had no statutory authority to terminate NEH grants. And on the undisputed evidence, DOGE – not the NEH Chairperson or anyone else at NEH – effectuated the terminations at issue here.

This is not a case involving a routine disagreement over how to interpret a statute. Nonstatutory ultra vires claims are reserved for extraordinary cases in which “the agency action go[es] beyond mere legal or factual error and amount[s] to a clear departure by the [agency] from its statutory mandate.” … They require a showing that the agency “plainly acts in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory.”….

This case presents something more basic. It is not that DOGE misconstrued a statutory provision conferring authority on it; it is that Congress conferred no authority on DOGE at all with respect to the awarding, continuation, or termination of NEH grants.

The Supreme Court has made it clear that Congress — not the executive branch — has the power here. (Amusingly, the GOP loves to point this out, but only when Democrats are in the White House.)

The Executive Orders and DOGE-directed termination process did not carry out the NEH grantmaking scheme Congress prescribed by law in a duly enacted statute. They displaced it. Congress vested funding authority in the NEH Chairperson. DOGE substituted a presidential policy judgment for a statute duly enacted by Congress. That is not faithful execution of law

Judge McMahon even points out that the Trump administration’s posturing regarding DOGE in other cases is part of what sinks it in this case:

As the Solicitor General represented to the Supreme Court, “USDS [DOGE] is a presidential advisory body within the Executive Office of the President” and “USDS has no organic statute and is not created by Congress.” Appl. to Stay Pending Certiorari or Mandamus and Request for Immediate Administrative Stay at 5, 21, In re U.S. DOGE Serv., No. 24A1122 (emphasis added). If DOGE “has no organic statute and is not created by Congress,” then it necessarily lacks any statutory delegation of authority to terminate NEH grants. And it certainly cannot exercise such authority in derogation of the very purposes that Congress wrote into the agency’s authorizing statute.

The court goes on to explain that an executive order simply cannot overrule Congress, but more to the point, Trump’s executive order setting up DOGE in the first place itself admits that it doesn’t have the powers it sought to exercise in cancelling these grants.

… the Executive Orders, read on their own terms, confirm the absence of any operative grant-termination authority in DOGE. Executive Order 14158, Establishing and Implementing the President’s “Department of Government Efficiency,” first creates the principal DOGE entity by renaming the United States Digital Service as the “United States DOGE Service (USDS)” and providing that it “shall be established in the Executive Office of the President.” Exec. Order No. 14158 § 3(a), 90 Fed. Reg. at 8441. It then separately creates, “within USDS,” a “temporary organization known as ‘the U.S. DOGE Service Temporary Organization’” and states that this temporary organization is created “in accordance with section 3161 of title 5, United States Code.” Id., § 3(b), 90 Fed. Reg. at 8441. But the only reference to a statute in the Order – to 5 U.S.C. § 3161 – attaches to the temporary organization, not to the principal DOGE entity.

Section 3161 itself does not confer any substantive policymaking power on DOGE. It defines a “temporary organization” as an organization “established by law or Executive order for a specific period not in excess of three years for the purpose of performing a specific study or other project,” and grants personnel, detail, compensation, and travel authority to staff such an organization. 5 U.S.C. § 3161(a)–(e). Nothing in that provision authorizes DOGE to exercise independent executive power, direct the functioning of a federal agency, terminate grants, halt payments, or impose binding decisions on statutory officers. At most, it permits the creation and staffing of a temporary body for a “specific study or other project.”

Pointing to another DOGE EO, the judge points out that the federal government has publicly stated that DOGE was only to have an advisory role. But all of the details here show that the two bros were absolutely in charge (frequently overruling the staffers ostensibly in charge).

DOGE Teams – including those in which individuals such as Justin Fox or Nate Cavanaugh serve – are expressly created “within” agencies and function to “advise” agency heads – not to exercise independent decisionmaking authority.

And the evidence is overwhelming that Cavanaugh and Fox were not “advising.” They were ordering.

Any suggestion that DOGE merely advised NEH is belied by the undisputed record. They did not simply provide policy advice for NEH leadership to accept or reject after their review. Before ever meeting with NEH leadership, Fox had already begun reviewing NEH grants using keyword searches and DOGE-generated categories to identify grants he considered objectionable. DOGE then used ChatGPT-generated “DEI” rationales, combined those classifications with NEH staff ratings, and generated the final spreadsheets used to identify grants for termination. See supra Sections I(E)–(G). Cavanaugh and Fox then “both rejected [the NEH Chair’s] recommendation” to continue funding certain grants, Dkt. No. 276-1, Cavanaugh Dep., 181:3–9, and added still more grants for termination – grants that NEH staff had identified as “N/A” – on the eve of the April 2, 2025 mass termination, Dkt. No. 248-32, US-000041206. The appearance of Chairperson McDonald’s name on the termination letters does not alter the substance of what occurred. Fox, not McDonald, drafted and sent the termination notices under McDonald’s name.

Just days before the Mass Termination, Fox told McDonald, “We need a game plan for effectuating . . . final grant terminations and contract cancellations by tomorrow AM. We will carry these plans out before the end of the week. We’re getting pressure from the top on this and we’d prefer that you remain on our side but let us know if you’re no longer interested.” Dkt. No. 248-15, Ex. 15, US-000050717 (emphasis added). That is not the language of an adviser awaiting a decision from the statutory decisionmaker. Fox told McDonald that “we” (i.e., Fox and Cavanaugh) would carry the terminations out, invoked “pressure from the top” (i.e., the White House), and framed McDonald’s participation as simply optional. See Dkt. No. 248-1, Fox Dep., 305:8–17. His reference to whether McDonald was “no longer interested” makes clear that DOGE understood the terminations would proceed with or without him. No reasonable factfinder could read that communication as evidence of a “purely advisory” role. Fox’s message leaves no serious doubt about who was directing the process.

In other words, Justin Fox’s faux tough-guy “I’m in charge here” attitude is a big part of what sank this case. These guys were so full of their own shit, and so uninterested in how government actually works, that they effectively blew up their legal position by simply being assholes.

The record admits of only one conclusion. DOGE was calling the shots. DOGE controlled the lists, DOGE rejected McDonald’s suggestions, DOGE added additional grants for termination, DOGE drafted and sent the notices, and DOGE dictated which previously awarded grants would live or die. McDonald’s one and only decision – to allow his name to appear at the bottom of the termination letters – alters none of that. His signature did not transform DOGE’s decision into an NEH decision; his name was simply a fig leaf designed to make it appear like the official authorized by law to terminate grants was the official who had done so. If DOGE were in fact limited to an advisory role, Fox and Cavanaugh could not have directed NEH to terminate specific grants over the objections of its Chair. But they did. And they did so, without any statutory delegation of power. The challenged conduct cannot be reconciled with the National Foundation on the Arts and the Humanities Act or the constitutional requirement that executive action be grounded in lawful authority. It cannot stand.

Beyond these problems, the Court notes, the grant cancellations also were a clear First Amendment violation, given that the cancelled grants were chosen because of their expression being too woke, which is clearly targeting speech for what it says.

In sum, while the government retains some discretion in administering grant programs, that discretion is bounded by the First Amendment. It may define programmatic objectives and allocate resources accordingly, but it may not deny or withdraw funding because it disagrees with the ideas expressed. “[I]deologically driven attempts to suppress a particular point of view are presumptively unconstitutional[.]” Rosenberger, 515 U.S. at 830. Where, as here, the government funds a program that facilitates private expression, it may not act where “the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

And here, there’s very clear viewpoint discrimination:

DEI is, of course, a viewpoint….

The record establishes that the termination decisions were driven by an expressly ideological method of classification. There can be no genuine dispute about this point. Indeed, the Government has all but admitted as much….

And thus, the cancellations were based on viewpoint, which violates the First Amendment:

Regardless of whether DOGE’s classifications were coherent (obviously, many of them were not), what matters is that it deliberately sought to single out and eliminate grants based on its perception that they implicated disfavored ideas. See Dkt. No. 248-17, Ex. 17, NEH_AR_000013 (“[W]e have only excluded [from termination] the ones that seem not to conflict with the Administration’s priorities[.]”). The Government’s actions cannot stand. It may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.” Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam)

Indeed, the judge notes that the White House literally bragged about cancelling these grants because of their perceived viewpoint:

The Government, for its part, has never claimed that these grants were reviewed for their humanistic merit or that they were terminated for any reason other than the DOGE decisionmakers’ perception that they espoused, reflected, or related to the disfavored “DEI” viewpoint. To the contrary, the Government admits that these grants were terminated because they were deemed to promote DEI…. DOGE itself publicly characterized the terminations as “DEI,” posting from its official account on X (formerly Twitter) that “During the previous administration, the National Endowment for the Humanities (NEH) awarded the following grants to spend taxpayer dollars, all of which have been cancelled ($163M in overall savings). NEH grants will be merit-based and awarded to non-DEI, pro-America causes.”… The Government’s own public statements confirm what the record otherwise makes clear: DEI, the disfavored viewpoint, was the reason why the majority of Plaintiffs’ grants were terminated. The Government engaged in blatant viewpoint discrimination.

Then there was the political discrimination. Apparently the DOGE crew asked to only look at grants from the Biden admin, which the court notes is impermissible. While it correctly states that new administrations are allowed to set their own priorities, it cannot claw back previously granted money entirely on the basis of disfavored speech or political association.

The Court is under no illusion that a new administration may prefer, on a going-forward basis, to fund certain kinds of scholarly programs over others. But lawful priority-setting is one thing; depriving someone of a benefit previously conferred based on viewpoint and perceived political association is something else entirely. Consistent with Regan and Rust, a new administration may pursue lawful funding priorities within the bounds of the NEH statute and the Constitution. But it has no license to suppress disfavored ideas.

Fox and Cavanaugh walked into a federal agency, fired up ChatGPT, and apparently assumed that generating plausible-sounding bureaucratic language was the same thing as following the law. It wasn’t. A 143-page ruling says so in considerable detail. The government can set its funding priorities. It cannot, however, use a chatbot to manufacture pretextual rationales for suppressing ideas it dislikes, hand authority to people Congress never authorized, and then put a fig leaf signature on the termination letters and call it a day.

They were cosplaying as government while dismantling it from the inside. And at least in this court, they didn’t get away with it.

In late 2023, I wrote a feature for The Verge exploring the FCC’s attempt to stop race and class discrimination in broadband deployment. For decades, big telecoms have not only refused to evenly upgrade broadband in low income and poor areas (despite billions in subsidies for this exact purpose), they’ve provably charged poor and minority neighborhoods significantly more money for worse service.

To be clear: the Biden FCC’s plan didn’t actually stop such discrimination. The previous FCC didn’t even have the moral courage to call out big telecoms with a history of such practices (see: AT&T’s “digital redlining” in cities like Cleveland and Detroit). The FCC simply acknowledged that this discrimination clearly exists and set up a complaint process for consumers who had been discriminated against.

I’m not sure the loophole-filled rules would have ever resulted in meaningful accountability for providers, given holding telecom monopolies accountable has never been a serious priority for either party. But it was at least an acknowledgement that this obvious discrimination exists. For the first time ever. Which was important for what I would hope is obvious reasons.

No longer: the Republican-stocked 8th Circuit Court of Appeals has struck down the entire FCC effort in a ruling, stating the FCC exceeded its legal authority by imposing liability for actions resulting in “disparate impact,” instead of merely policing “disparate treatment.” And by extending the complaint process to include subcontractors who help ISPs with deployment:

“[The FCC] exceeded its statutory authority in two respects that are the core of the final rule—disparate impact liability and the definition of covered entities. We therefore vacate the final rule in its entirety, leaving the FCC with an unfinished obligation to ‘adopt final rules to facilitate equal access to broadband Internet access service’ in compliance with 47 U.S.C. § 1754.”

That resulted in the whole effort being discarded.

The FCC could try to re-establish the rules with a new effort, but that new effort likely wouldn’t survive our new reality created by our corrupt courts dismantling Chevron Deference. Republicans and corporate power have made holding large U.S. companies accountable for almost anything illegal, and it’s still somehow not being talked about enough, given the vast (and quite deadly) looming ramifications.

While the Judges and case intervenors like to put on a very serious adult face and pretend they’re engaging in very serious legalese, the goal here really is no meaningful oversight of telecom monopolies. There’s always something they concoct to suggest the U.S. government can’t engage in basic consumer protection oversight of telecoms. If it wasn’t this, it would be something else.

The impact of this assault on the U.S. federal regulatory state is everywhere you look. Especially in broadband access, where dominant regional monopolies and state and federal regulatory capture (read: corruption) result in spotty access, slow speeds, and abysmal consumer service for everyone. Minorities and marginalized communities just get hit hardest, and usually first.

The ruling, issued unanimously by three judges appointed by Republican presidents, is a double win for folks like FCC boss Brendan Carr, who likely enjoys both the racism and protecting lumbering telecom monopolies from accountability for decades of predatory behavior. As usual, Carr insisted in a statement that fighting discrimination somehow discriminates against white people:

“Today’s appellate court decision is another common-sense win for nondiscrimination.

…the FCC’s decision to adopt those illegal rules only made it harder for providers to bridge the digital divide and took the FCC’s focus off of our core mission.

Now, the FCC is focused on advancing our Build America Agenda and ensuring that regulated entities do not discriminate, including through our efforts to end invidious forms of DEI discrimination. I commend the appellate court for correcting the FCC’s misguided 2023 decision. The court’s ruling follows the Supreme Court’s decision last week making clear that intentional discrimination is unlawful.”

That is, well, patently false. And weird. And an extremely dystopian inversion of reality by zealots. Consumer groups fighting for equitable and affordable broadband (like Public Knowledge) were, in contrast, not impressed. From Public Knowledge’s Legal Director, John Bergmayer:

“The practical effect is to eliminate a rule that addresses a documented problem,” he said. “Lower-income neighborhoods and communities of color get slower service, older equipment, and higher prices for the same product their richer neighbors buy. After today, the FCC can act only when it proves a smoking-gun case of conscious bias, which almost never exists in writing.”

This is just one of several efforts by Republicans to destroy efforts to mandate equitable and affordable broadband access, including Trump’s illegal destruction of the Digital Equity Act, the dismantling of programs that provide free Wi-Fi hotspots to rural school kids, and the general destruction of FCC authority to hold telecoms accountable for stuff like spying on you.

This is occurring at the same time that Trump Republicans are leveraging Carr’s same twisted, inverted logic on “DEI” and inverted discrimination to do everything from censor journalists and comedians to gerrymander maps, stripping representation rights away from millions of American minorities.

Great stuff. Thanks again to all the folks (especially rich Silicon Valley CEOs) who decided that a corrupt kakistocracy at the hands of racist zealots was just what an already struggling America needed.