President-elect Donald Trump listens to Elon Musk as he arrives to watch SpaceX’s mega rocket Starship lift off for a test flight from Starbase in Boca Chica, Texas, Nov. 19, 2024 (Brandon Bell/Pool via AP, File).
The Trump administration is scrambling to keep the internal operations of the United States DOGE Service (USDS) under wraps, asking the U.S. Supreme Court on Wednesday to step in and prevent the “advisory body’s most sensitive workings” from being dragged into the public light after an appeals court signed off on the probing.
“The discovery ordered is … extraordinarily overbroad and intrusive,” wrote Solicitor General D. John Sauer in a 38-page emergency application to the nation’s highest court.
“By requiring a deposition of USDS’s head and much more besides, it will significantly distract from USDS’s mission of identifying and eliminating fraud, waste, and abuse in the federal government,” Sauer said. “Compliance will hamstring USDS in carrying out its mission, and the burdens of responding to these roving requests … are quintessentially irreparable. This Court has rejected similar fishing expeditions into sensitive executive-branch functions, and it should not allow this one to proceed.”
The U.S. Circuit Court of Appeals for the District of Columbia lifted a block last week on efforts to probe DOGE and its internal structure, clearing the way for a government watchdog group to move forward with “limited discovery,” including the disclosure of records reflecting DOGE’s “organizational role, authorities and operational reach,” in an ongoing lawsuit against the agency-adjacent organization.
The appeals court issued a per curiam order, siding with the Citizens for Responsibility and Ethics in Washington (CREW) by letting it move forward with discovery in a federal suit filed against DOGE and Elon Musk earlier this year. The court rejected a petition for a writ of mandamus that was filed by the Trump administration on April 18. The government had asked the court to halt a lower court’s order allowing expedited discovery to take place in the CREW case, along with asking for an emergency stay pending a ruling.
The stay wound up being granted, but was lifted last Wednesday by U.S. Circuit Judges Karen Henderson, a George H.W. Bush appointee; Robert L. Wilkins, a Barack Obama appointee; and J. Michelle Childs, a Joe Biden appointee, in their per curiam order.
The underlying lawsuit from CREW is an effort to enforce Freedom of Information Act (FOIA) requests against the Trump administration’s intra-governmental fraud-and-waste-focused organization. DOGE, in turn, has maintained “it is not an agency subject to FOIA.” U.S. District Judge Christopher Cooper, a Barack Obama appointee, disagreed and entered an injunction requiring expedited processing of CREW’s FOIA requests against DOGE. The plaintiffs then moved for summary judgment on the lawsuit and, seeking a quick bit of finality, moved for expedited discovery.
Sauer on Wednesday asked the Supreme Court to immediately block the lower court’s order, arguing that the reason “is straightforward” and echoing the agency claims.
According to him and the Trump administration, “USDS is obviously not an ‘agency’ for FOIA purposes” because its authority is “purely advisory.” Sauer said there are “presidential documents” outlining DOGE’s responsibilities, which include working to “consult” and “coordinate” with government officials on ways to “identify” solutions for various problems and issues, such as “federal funding for illegal aliens.”
“None of those advisory functions (or functions in support of them) constitute the kind of independent authority that could render a presidential advisory body an ‘agency’ under FOIA,” Sauer said. “The district court and court of appeals instead embraced a test whereby a body that advises the President and formally lacks independent authority might nonetheless qualify as an ‘agency’ for FOIA purposes based on purported ‘practical realities’ regarding how the body performs its work.”
Sauer took things a step further by claiming the lower court “heavily” relied on media reports characterizing Elon Musk as the head of DOGE, when he actually “is not part of USDS” and is instead “a White House advisor,” according to Sauer.
The claim, which has been floated by the Justice Department before, directly contradicts comments made by Trump in the past, including a Feb. 19 statement where he reportedly told attendees at a Miami summit, “I signed an order creating the Department of Government Efficiency and put a man named Elon Musk in charge. Thank you, Elon, for doing that.”
Trump’s deputy chief of staff, Stephen Miller, on Feb. 18 also referred to DOGE as “an agency … that reports into the office of the Executive Office of the President, which reports to the president of the United States,” according to CNN.
Wednesday’s Supreme Court application marks the second time this month the justices have been asked to bail DOGE out. They are currently considering whether DOGE should be given access to probe Social Security Administration records.
