Elon Musk and the trouble he’s courting

I was amused on Sunday morning, February 9th, when I conjured up the image of Elon Musk running through the White House West Wing muttering the name “Engelmayer” in disgust, something he surely was doing.

The Engelmayer he was referring to — and apparently cannot stop plotting revenge against — is the Hon. Paul Engelmayer, a United States District Court judge for the Southern District of New York (otherwise known as the Second U.S. Court District). He is a distant cousin. As a youth, I did meet members of his family, but he and I have never met. Nevertheless, I have followed his judicial career ever since the Senate unanimously confirmed him in 2011 (on my birthday, no less) and I have taken great familial pride in his career on the federal bench ever since.

Musk’s muttering followed a ruling Engelmayer issued the night before, in a suit brought by 19 state attorneys general, all Democrats, citing cybersecurity and privacy concerns in seeking to block Musk and his Department of Government Efficiency from accessing the Treasury Department’s sensitive payment information database. Engelmayer, the on-call judge that night, temporarily blocked DOGE’s access, leaving it to the federal judge assigned to hear that lawsuit, the Hon. Judge Jeannette A. Vargas, to make the final decision. (On February 14, she extended Engelmayer’s ruling while she considers the issues involved.)

A former federal prosecutor with a distinguished record, Engelmayer was appointed to the highly influential Second District Court by President Barack Obama, a nomination the American Bar Association rated “Unanimously Well Qualified.”

Engelmayer rates very high on the website therobingroom.com, where attorneys and others go to “judge the judges” before whom they appear. He is a greatly respected jurist, known for his scholarship, temperament, evenhandedness, and meticulousness in handling complex litigation, and for rendering decisions that are clearly understandable and soundly reasoned.

Most pleasing to me of all is his reputation for being a true mentsch. Among the 10-star comments on therobingroom.com is this one: “Upon appearing before this Judge for the first time, he extended his hand for a handshake and said ‘Hi, I’m Paul Engelmayer.’ I was astonished (in a good way), as the Judge’s conduct demonstrated a sense of humility that often gets lost when a human being becomes a ‘judge.’”

This is the judge Elon Musk keeps muttering about, the judge he wants the House to impeach and the Senate to convict and remove, and all because Engelmayer temporarily blocked Musk from getting his hands on highly sensitive Treasury Department records and data systems. That access, Engelmayer ruled, belongs only to specialized Treasury employees “who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations.” (On Sunday, it was learned that Musk now demands access to the IRS system that contains our tax return data.)

As of this writing, no articles of impeachment have been filed with the House, although Rep. Eli Crane (R-Ariz.) is preparing to do so because Engelmayer is “an activist judge trying to stop the Trump administration from, you know, executing their, you know, Article 2 powers to make sure that the laws are faithfully executed.” (Article II of the Constitution says nothing about a president being able to grant untrained outsiders the right to access sensitive government data. Doing so, in fact, may violate personal privacy and other provisions of the 1946 Administrative Procedure Act as those were amended by the 1966 Freedom of Information Act.)

Impeachment by the House is possible but doubtful. Impeachment merely requires a one-vote majority to pass — but getting that majority in this and similar cases against other jurists may be hard to come by. Because conviction requires a two-thirds vote of the Senate, it is not considered even a remote possibility.

What should concern all of us, however, is the very real possibility that Trump and Musk will attempt to defy court orders regardless of who issued them, including the Supreme Court of the United States.

It would not be the first time a president thumbed his nose at court rulings, from SCOTUS especially. Following a ruling in Worcester v. Georgia in 1832, Andrew Jackson famously (although perhaps apocryphally) exclaimed, “[Chief Justice] John Marshall has made his decision; now let him enforce it!” Jackson persisted in defying the court’s ruling in that case, which upheld the sovereignty of the Cherokee Nation and overturned a Georgia state law that gave it authority over Native American lands.

In effect, that ruling also nullified the Indian Removal Act of 1830, which Jackson had signed and the execution of which he continued to pursue over his remaining five years in office, and which his successors, Congress, and several states also ignored. That defiance led to the Trail of Tears, one of the darkest blots on this country’s history, when 60,000 Indigenous peoples were forced to march from their ancestral homelands in Georgia, Tennessee, Alabama, North Carolina, and Florida to areas in Kentucky. At least 15,000 Indigenous peoples died from various causes along the way. The court was powerless to do anything substantive to back up its ruling.

Jackson’s refusal to enforce the SCOTUS decision set a dangerous precedent for the rule of law because, if such defiance is allowed to stand, it renders moot the Constitution’s checks-and-balances system considered to be so crucial to our democracy.

President Abraham Lincoln also ignored SCOTUS and got away with it. After the Civil War began, he suspended the writ of habeas corpus in order to allow the arrest of anyone suspected of aiding the Confederacy, even in the absence of any evidence. In 1861’s Ex Parte Merryman, the court declared that Lincoln’s suspension was unconstitutional because only Congress was given the power to do so. Lincoln simply ignored the ruling.

Jewish law has much to say about showing disrespect to judges and their decisions. Deuteronomy 17:8-12 is very clear on this. Once “the magistrate[s] in charge at the time” have rendered their decision in a matter before them, it says, we must “carry out the decision…scrupulously,” and we “must not deviate from the decision that they announce” in any way.

The Torah takes refusing to follow court rulings so seriously that the penalty it prescribes for doing so is death. The Talmud, for its part, debates when and where the execution is to take place. Rabbi Akiva argued that the offending litigant had to be arrested by the defied court wherever it was located but then had to be taken to prison in Jerusalem, there to be executed during the very next pilgrimage festival — Passover, Shavuot, or Sukkot — when the city would be overflowing with people. In that way, “the people will hear [of the execution] and be afraid and will not act presumptuously again,” in the words of Deuteronomy 17:13.

Rabbi Yehudah, on the other hand, ruled that the offender had to be executed immediately in the place where the court sat. To accommodate Deuteronomy 17:13, he also ruled that messengers had to be sent throughout the country announcing the execution and the reasons for it. After all, as he said to Rabbi Akiva, the verse says that “the people will hear” of the execution, not that they had to witness it.

Fortunately, the death penalty ceased to be the punishment when the Sanhedrin (Israel’s high court and legislature rolled into one) ceased to exist — and it was rarely enforced even while it did exist. In its place, the most severe penalty was being whipped up to a maximum of 39 lashes depending on the gravity of the offense.

There are 365 negative commandments out of the Torah’s 613. Maimonides, the Rambam, lists cursing a judge, which includes defying a judge’s ruling, as Negative Commandment 315. The number of lashes depended on how serious the defiance was deemed by the court.

Torah law is also very insistent on who is qualified to be a judge and how a judge must exercise that role. Judging by therobingroom.com accolades, the ABA’s “Unanimously Well Qualified” rating, and other sources, U.S. District Court Judge Paul A. Engelmayer fits perfectly all of the Torah’s requirements.

Fortunately for Elon Musk, this country does not operate based on Torah law, so the best we can hope for is a severe tongue-lashing.

Unfortunately for this country, however, tongue-lashings alone will not deter him and his clearly fearless leader from their efforts to turn the Constitution into a piece of worthless parchment. That job falls to all of us who are eligible to vote.

Two special elections will be held in Florida on April 1 to fill seats vacated by Rep. Matt Gaetz, who resigned when he was tagged by Trump to be attorney general (he later withdrew his nomination in disgrace), and by Rep. Michael Waltz, Trump’s national security advisor. A third special election will be held in upstate New York, assuming that the Senate confirms Rep. Elise Stefanik as U.N. ambassador, which seems likely.

All three are Republicans. Democratic wins in two of the races would put the House back in Democratic hands, effectively putting up a one-vote majority roadblock to the efforts of Musk and Trump to undermine our democracy. The midterm elections in 2026 could then turn that roadblock into a mighty wall for Musk to bang his head against, another image I would love to conjure up.

Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.

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