Parsing the latest legal fight over President
“Where is Mr. Musk in all of this?”
The Monday hearing before the veteran Washington jurist marked the latest in a string of cases in which judges have probed the speed and secrecy surrounding Trump and billionaire
The Justice Department attorney appearing before Kollar-Kotelly repeated in response to the judge’s questions that Musk is a trusted Trump adviser. He could not identify the current DOGE administrator — or even confirm if there is one. The lawyer also could not say if DOGE is officially a government agency.
“Based on the limited record I have before me I have concerns,” said Kollar-Kotelly, a Clinton appointee.
Judges managing the flood of lawsuits challenging DOGE have been pressing for reliable information about the project’s personnel, authority and actions amid what one judge recently described as the “chaos” of Trump’s effort to reshape the government.
US government agencies normally create those kinds of records in the course of doing official business, but DOGE’s legal status is being hashed out in courtrooms across the country, as is Musk’s role and responsibility for the effort.
‘Truthful Representations’
Another judge in Washington,
Of the more than 90 lawsuits filed against the Trump administration in the first month, more than 20 directly involve DOGE. These cases challenge Musk’s position, DOGE’s structure and who’s getting access to internal agency systems, some of which include the personal information and sensitive payments data of US citizens.
Lawyers suing the administration have often relied on first-person accounts from federal employees and media reports, the latter of which judges are quick to note they can’t rely on as facts.
In the case on Monday, in which unions are suing to shield members’ personal data at the
Fact Finding
Judges are also playing a key role in establishing at least some of the facts.
Only after questioning from Chutkan, an Obama appointee, did the Justice Department confirm last week that Musk
White House Spokesperson Harrison Fields rebuffed judges’ concerns about openness, saying that DOGE’s “mission and ongoing work” have been outlined in Trump’s executive order, public question and answer sessions, on the DOGE website “and numerous accomplishments in reducing waste, fraud, and abuse.”
He criticized “career politicians and activist judges who are invested in preserving the status quo.”
The DOGE website links to Trump’s executive order as well as social media posts and data describing what team members say they’ve discovered about government spending, staffing and regulations. It doesn’t provide other information commonly available from US agencies, such as names and contact information for the officials and employees associated with its work, an organizational chart or a calendar of past and upcoming activity.
Government court filings have filled in some details about employees working with DOGE, what they’re doing — including a disclosure that an employee at the Treasury Department was “mistakenly” given “read/write” access to a payments database — and the extent of agency spending and personnel cuts.
Even as Musk launched a federal government-wide email over the weekend asking employees “What did you do last week?” the White House hasn’t disclosed who the DOGE administrator is, if not Musk. Fields didn’t respond to a follow-up question about that position. Trump, meanwhile, has reiterated that he put Musk “in charge.”
‘Goldilocks Entity’
Judges are also grappling with contradictions in what lawyers for the Justice Department defending against the lawsuits are representing in court.
When a DOJ lawyer told Moss, another Obama appointee, at a hearing that it was “speculation” that DOGE’s motives were to shut down federal agencies, the judge replied: “But, no, Elon Musk has said it, I mean, unless you don’t take his word for it.”
In a case seeking to block DOGE’s access to multiple agencies’ systems, Bates recently wrote that the Justice Department was arguing on the one hand that DOGE should be considered an agency under one US law — but not under other laws that would subject it to public records requests, privacy safeguards and other limits.
“This appears to come from a desire to escape the obligations that accompany agencyhood,” the George W. Bush appointee wrote, “while reaping only its benefits.”
In the government’s view, DOGE is “a Goldilocks entity: not an agency when it is burdensome, but an agency when it is convenient.”
Trump’s order last month establishing the efficiency push changed an executive branch IT office into the US DOGE Service and directed agencies to establish teams to help modernize technology across government. In early February, Trump expanded DOGE’s role to include oversight of spending and personnel cuts at federal agencies and shuttering some offices altogether.
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‘Unusual Case’
As cases move forward, several judges have signaled they’re open to letting plaintiffs collect information from the administration about DOGE. Such fact-finding, known as discovery, isn’t always part of litigation challenging agency actions because there’s typically an official record of facts that both sides agree on.
Bates denied an immediate temporary restraining order restricting DOGE’s activities but gave the challengers a green light to do “properly-limited” discovery over an objection from the Justice Department.
“This is an unusual case,” he wrote.
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Elizabeth Wasserman
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