DOGE in court Trump admin tells Supreme Court: DOGE needs to do its work in secret DOJ complains of "sweeping, intrusive discovery" after DOGE refused FOIA requests. Jon Brodkin – May 21, 2025 5:08 pm | 88 A protest over DOGE's reductions to the federal workforce outside the Jacob K. Javits Federal Office Building on March 19, 2025 in New York City. Credit: Getty Images | Michael M. Santiago A protest over DOGE's reductions to the federal workforce outside the Jacob K. Javits Federal Office Building on March 19, 2025 in New York City. Credit: Getty Images | Michael M. Santiago Story text Size Small Standard Large Width * Standard Wide Links Standard Orange * Subscribers only   Learn more The Department of Justice today asked the Supreme Court to block a ruling that requires DOGE to provide information about its government cost-cutting operations as part of court-ordered discovery. President Trump's Justice Department sought an immediate halt to orders issued by US District Court for the District of Columbia. US Solicitor General John Sauer argued that the Department of Government Efficiency is exempt from the Freedom of Information Act (FOIA) as a presidential advisory body and not an official "agency." The district court "ordered USDS [US Doge Service] to submit to sweeping, intrusive discovery just to determine if USDS is subject to FOIA in the first place," Sauer wrote. "That order turns FOIA on its head, effectively giving respondent a win on the merits of its FOIA suit under the guise of figuring out whether FOIA even applies. And that order clearly violates the separation of powers, subjecting a presidential advisory body to intrusive discovery and threatening the confidentiality and candor of its advice, putatively to address a legal question that never should have necessitated discovery in this case at all." The nonprofit watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed FOIA requests seeking information about DOGE and sued after DOGE officials refused to provide the requested records. US District Judge Christopher Cooper has so far sided with CREW. Cooper decided in March that "USDS is likely covered by FOIA and that the public would be irreparably harmed by an indefinite delay in unearthing the records CREW seeks," ordering DOGE "to process CREW's request on an expedited timetable." Judge: DOGE is not just an advisor DOGE then asked the district court for a summary judgment in its favor, and CREW responded by filing a motion for expedited discovery "seeking information relevant to whether USDS wields substantial authority independent of the President and is therefore subject to FOIA." In an April 15 order, Cooper ruled that CREW is entitled to limited discovery into the question of whether DOGE is wielding authority sufficient to bring it within the purview of FOIA. Cooper hasn't yet ruled on the motion for summary judgment. "The structure of USDS and the scope of its authority are critical to determining whether the agency is 'wield[ing] substantial authority independently of the President,'" the judge wrote. "And the answers to those questions are unclear from the record." Trump's executive orders appear to support CREW's argument by suggesting "that USDS is exercising substantial independent authority," Cooper wrote. "As the Court already noted, the executive order establishing USDS 'to implement the President's DOGE Agenda' appears to give USDS the authority to carry out that agenda, 'not just to advise the President in doing so.'" Not satisfied with the outcome, the Trump administration tried to get Cooper's ruling overturned in the US Court of Appeals for the District of Columbia Circuit. The appeals court ruled against DOGE last week. The appeals court temporarily stayed the district court order in April, but dissolved the stay on May 14 and denied the government's petition. "The government contends that the district court's order permitting narrow discovery impermissibly intrudes upon the President's constitutional prerogatives," the appeals court said. But "the discovery here is modest in scope and does not target the President or any close adviser personally. The government retains every conventional tool to raise privilege objections on the limited question-by-question basis foreseen here on a narrow and discrete ground." US argues for secrecy A three-judge panel at the appeals court was unswayed by the government's claim that this process is too burdensome. "Although the government protests that any such assertion of privilege would be burdensome, the only identified burdens are limited both by time and reach, covering as they do records within USDS's control generated since January 20," the ruling said. "It does not provide any specific details as to why accessing its own records or submitting to two depositions would pose an unbearable burden." Yesterday, the District Court set a discovery schedule requiring the government to produce all responsive documents within 14 days and complete depositions within 24 days. In its petition to the Supreme Court today, the Trump administration argued that DOGE's recommendations to the president should be kept secret: The district court's requirement that USDS turn over the substance of its recommendations—even when the recommendations were "purely advisory"—epitomizes the order's overbreadth and intrusiveness. The court's order compels USDS to identify every "federal agency contract, grant, lease or similar instrument that any DOGE employee or DOGE Team member recommended that federal agencies cancel or rescind," and every "federal agency employee or position that any DOGE employee or DOGE team member recommended" for termination or placement on administrative leave. Further, USDS must state "whether [each] recommendation was followed." It is difficult to imagine a more grievous intrusion and burden on a presidential advisory body. Providing recommendations is the core of what USDS does. Because USDS coordinates with agencies across the Executive Branch on an ongoing basis, that request requires USDS to review multitudes of discussions that USDS has had every day since the start of this Administration. And such information likely falls within the deliberative-process privilege almost by definition, as internal executive-branch recommendations are inherently "pre-decisional" and "deliberative." Lawsuit: “No meaningful transparency” into DOGE The US further said the discovery "is unnecessary to answer the legal question whether USDS qualifies as an 'agency' that is subject to FOIA," and is merely "a fishing expedition into USDS's advisory activities under the guise of determining whether USDS engages in non-advisory activities—an approach to discovery that would be improper in any circumstance." CREW, like others that have sued the government over DOGE's operations, says the entity exercises significant power without proper oversight and transparency. DOGE "has worked in the shadows—a cadre of largely unidentified actors, whose status as government employees is unclear, controlling major government functions with no oversight," CREW's lawsuit said. "USDS has provided no meaningful transparency into its operations or assurances that it is maintaining proper records of its unprecedented and legally dubious work." The Trump administration is fighting numerous DOGE-related lawsuits at multiple levels of the court system. Earlier this month, the administration asked the Supreme Court to restore DOGE's access to Social Security Administration records after losing on the issue in both a district court and appeals court. That request to the Supreme Court is pending. There was also a dispute over discovery when 14 states sued the federal government over Trump "delegat[ing] virtually unchecked authority to Mr. Musk without proper legal authorization from Congress and without meaningful supervision of his activities." A federal judge ruled that the states could serve written discovery requests on Musk and DOGE, but the DC Circuit appeals court blocked the discovery order. In that case, appeals court judges said the lower-court judge should have ruled on a motion to dismiss before allowing discovery. Jon Brodkin Senior IT Reporter Jon Brodkin Senior IT Reporter Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry. 88 Comments