(WASHINGTON) — U.S. District Judge Amir Ali denied the Department of Justice’s request to push the midnight deadline by which the Trump administration needs to pay more than $1.9 billion in foreign aid.
The case is now in the hands of a panel of three appellate judges – each nominated to the bench by Democratic presidents – who will decide whether to issue an emergency stay of the deadline.
In his decision denying the request to stay his deadline, Judge Ali criticized the Trump administration for waiting until Tuesday to raise the argument that they lack the ability to restart the funding.
“This is not something that Defendants have previously raised in this Court, whether at the hearing or any time before filing their notice of appeal and seeking a stay pending appeal. That is so even though Plaintiffs’ motion to enforce explicitly proposed compliance on this time frame,” Ali wrote.
Ali ordered the Trump administration on Tuesday to dole out delayed payments that could total nearly $2 billion, according to a USAID official, to multiple nonprofit groups, determining the Trump administration violated the terms of a temporary restraining order issued two weeks ago regarding freezing foreign aid.
A top official with the United States Agency for International Development claims that complying with Tuesday’s court order would require paying foreign aid groups nearly $2 billion, arguing the payments “cannot be accomplished” in the timeframe set by the court.
Lawyers with the Department of Justice asked Ali in a late-night filing on Tuesday to issue a stay of his order that requires the Trump administration to pay by Wednesday at 11:59 p.m. any outstanding debts to foreign aid groups for work completed prior to Feb. 13. The Trump administration initially tried to freeze the payments via an executive order before Judge Ali ordered the payments to resume two weeks ago.
DOJ lawyers argued that fulfilling the payments is not only technically impossible but would also prevent the Trump administration from ensuring the payments are “legitimate.”
“The order apparently requires the Government to expend taxpayer dollars without regard to any processes for ensuring that the expenses are legitimate—even though Executive Branch leadership harbors concerns about the possibility of waste and fraud and is in the process of developing revised payment processing systems to address those concerns,” DOJ attorney Indraneel Sur wrote in a late-night filing.
According to Peter Marocco, the deputy administrator of USAID and director of foreign assistance at the State Department, complying with the court order would require dispersing $1.5 billion between 2,000 payment requests at USAID and an additional $400 million in payments at the State Department.
Judge Amir Ali, a Biden-era appointee, excoriated Trump administration attorneys during a lengthy hearing on Tuesday over its failure to pay the groups for work they conducted prior to President Trump’s Jan. 20 executive order, which froze all foreign aid for 90 days. Ali also signed an order to enforce a temporary restraining order he signed on Feb. 13, ruling the groups must be paid by 11:59 p.m. Wednesday.
“Plaintiffs submitted evidence that defendants have not lifted the suspension or freeze of funds as the [temporary restraining order] required. Defendants have not rebutted that evidence, and when asked today, defendants were not able to provide any specific examples of unfreezing funds pursuant to the Court’s TRO,” Judge Ali said after a two-hour hearing today.
Lawyers with the Department of Justice acknowledged that the Trump administration ignored the temporary restraining order, which prohibited them from freezing foreign aid funds since the order was issued. Instead, they argued that they should not be required to pay back the money because of “sovereign immunity.”
During an extended exchange with Ali, a DOJ lawyer struggled to answer basic questions about the Trump administration’s compliance with the temporary restraining order, which prevented the administration from freezing funds.
“I’m not sure why I can’t get a straight answer from you on this. Are you aware of an unfreezing of the disbursement of funds for those contracts and agreements that were frozen before February 13?” Ali asked. “Are you aware of steps taken to actually release those funds?”
“I’m not in a position to answer that,” DOJ attorney Indraneel Sur said.
“We’re 12 days in and you’re here representing the government…and you can’t answer me whether any funds that you’ve kind of acknowledged or covered by the court’s order have been unfrozen?” Judge Ali responded.
“All I can do, really, is say that the preparations are underway for the joint status report on compliance,” Sur said.
At one portion of the lengthy court hearing, Sur attempted to offer a legal justification for the Trump administration’s noncompliance, prompting a stern response from the judge about his order, the terms of which he said were “clear as day.”
“The purpose of this hearing is to understand and to hear arguments on the motion to enforce TRO. It is not an opportunity to re-litigate the TRO,” Ali said.
The DOJ filed a notice of appeal Tuesday.
A lawyer representing the nonprofits who brought the case argued that the lack of a response from the Trump administration amounts to defiance of the court order.
“What the court’s colloquy with the government has revealed is that the government has done nothing to make the flow of payments happen,” he said. “As far as we are aware, there’s been zero directives from the agency with respect to the unfreezing of funds.”
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