Trump Administration Tells Supreme Court DOGE Can’t Be FOIAed

Legal Issues

from the schrodinger's-government-agency dept

The destructive force that is DOGE still somehow manages to exist, despite it not being (depending on which claim is made and when) an official federal agency and/or overseen by anyone specifically identifiable as the head of DOGE.

Until recently, everyone — including Donald Trump — knew (and said as much in public) that DOGE was both a government agency and headed by Elon Musk. When the lawsuits started flying, the backtracking began by the administration, which apparently thought it could cover its tracks by walking backwards in its golf-cleated clown shows.

Trump’s love for DOGE has managed to undercut the protections DOGE hoped it would be able to avail itself of when the FOIA requests began pouring in and the discovery demands started hitting federal dockets.

The administration is now attempting a Hail Mary play, albeit one that hails Thomas and Alito (and possibly, Roberts), rather than the patron saint it’s named after. Given the makeup of this current court, it probably has a far better chance of success than simply hurling the ball into the air and hoping someone on their own team manages to come down with it. (And, indeed, it has already scored a temporary stay, thanks to an emergency order issued by Chief Justice John Roberts.)

Citizens for Responsibility and Ethics in Washington (CREW) has been suing DOGE ever since it rejected its FOIA requests for the agency’s operational documents. The Trump Administration is now fighting back, albeit with at least one hand inadvertently tied behind its back, as Josh Gerstein and Kyle Cheney report for Politico:

The Justice Department filed an emergency appeal Wednesday urging the high court to put a hold on a judge’s orders giving a watchdog group access to documents detailing firings, grant terminations and other actions proposed by the so-called Department of Government Efficiency, which was overseen by Tesla and SpaceX founder Elon Musk.

Solicitor General John Sauer is also asking the Supreme Court to block a deposition of the obscure official the Trump administration has identified as the leader of the budget-cutting drive: DOGE administrator Amy Gleason.

The crux of the administration’s opacity argument [PDF] is this: DOGE is nothing more than an advisory entity that lacks the power to make independent decisions. Obviously, everything about DOGE says otherwise, as it has propelled massive staffing and funding cuts across multiple agencies, participated in extremely careless (and possibly illegal) data exfiltration, and done pretty much whatever it wants since it materialized as the barely-sentient wet dream of a guy who insists on wearing a baseball cap to every Oval Office meeting.

But that has been undercut by Trump himself, who has stated the agency definitely can do everything the administration is now claiming in court it can’t do, as well as thrown someone under the DOGE bus to act as the recipient for the negative attention (and FOIA requests, and deposition demands) Trump managed to successfully shield his fascist-saluting man-child from since his return to the Oval Office.

This trouble has been brewing for a few months:

U.S. District Judge Christopher Cooper found there were strong indications that DOGE was actually directing cuts and layoffs at numerous federal agencies. That substantive operational role suggests DOGE’s activities fall under the Freedom of Information Act, the judge wrote.

Now that a judge is saying stuff we’ve all been able to clearly observe since DOGE’s inception, the administration now wants the Supreme Court to declare that the public (and multiple litigants) shouldn’t be allowed to believe their own eyes.

Making matters worse for the administration’s anti-transparency efforts is the fact that it has finally decided to put someone’s name on the top of the department’s letterhead: DOGE administrator Amy Gleason. (From what’s known about Gleason, it seems clear she’s being used to catch bullets meant for Trump/Musk, rather than actually direct DOGE operations.)

While this will probably keep Musk and his mouth out of court, it does make it clear that DOGE not only acts on its own impulses (rather than just offer mass termination “guidance”) but that someone will ultimately have to answer questions about DOGE’s actions in court, should discovery requests manage to secure some depositions.

Obviously, the normal court processes and determinations in litigation against DOGE cannot be allowed to stand. That’s why the administration wants the judges it bought to give it a free pass on destroying the federal government while simultaneously preventing the public from learning anything more about the salt-the-earth tactics being spearheaded by DOGE. And it really doesn’t matter whose name is currently at the top of the org chart in terms of destruction. But it does matter when it comes to FOIA litigation and the administration’s insistence DOGE is limited to simply suggesting moves the administration might want to make.

There’s no telling how this desperation move will work out. The Supreme Court has played both sides of the encroaching fascism line in recent weeks, giving Trump some free passes while occasionally shutting down the administration’s efforts to vanish constitutional rights into the anti-immigration cornfield.

Let’s hope this will end up being one of the latter. What’s already known about DOGE and its operations is extremely disturbing. Perhaps the exposure of more internal information will help more people realize the government they chose to elect is actively trying to destroy many of the things they still hold dear and propel some opposition from citizens who never thought they’d be #NeverTrump. We can only hope.

Filed Under: 1st amendment, doge, donald trump, elon musk, foia, lawsuit, public records, supreme court
Companies: crew