Turns out DOGE can't beat FOIA by shouting NOT AN AGENCY LAWSUITS EXPLAINED
Turns out DOGE can't beat FOIA by shouting NOT AN AGENCYJudge tells Musk to cough it up!
🚘 💨 🛣️ With corporate outlets obeying in advance, supporting independent political media is more important right now than ever. Public Notice is possible thanks to paid subscribers. If you aren’t one already, please click the button below and become one to support our work. 🚘 💨 🛣️ Back in November, Elon Musk professed his abiding belief in open government. “There should be no need for FOIA requests. All government data should be default public for maximum transparency,” he tweeted. “We post our actions to the DOGE handle on X and to the DOGE website,” he boasted in the Oval Office last month as his young child wandered randomly around the room full of reporters. “I don’t know of a case where an organization has been more transparent than the DOGE organization.” That was a lie. At that time, the DOGE website had virtually no information on it. And DOGE’s public pronouncements are often either mathematically impossible, or, like the $50 million “condoms for Gaza” claim, simply false. In fact, DOGE staffers have taken great pains to obscure their identities, with Musk calling it a crime to dox them. The agency even spent a month refusing to say in court or anywhere else who the DOGE administrator was. Who is the administrator of DOGE? Yesterday, Taylor Popielarz of Spectrum News asked White House Press Secretary Karoline Leavitz to answer that question. But she wouldn’t say.  Thu, 20 Feb 2025 04:36:48 GMT View on BlueskyAs a practical matter, this makes it impossible for the public to see what DOGE is doing. From a legal standpoint, it allows the administration to take a strategically ambiguous stance in hopes of shielding DOGE from judicial interference. But the jello against the wall strategy has largely failed in court, and Monday a federal judge ordered DOGE to pony up and begin complying with a Freedom of Information Act (FOIA) request filed by Citizens for Responsibility and Ethics in Washington (CREW).
An agency by any other name …While Elon Musk was preaching the gospel of transparency, the Trump administration was taking deliberate steps to hide what DOGE was doing. Specifically, Trump signed an executive order inserting DOGE into the skin of an existing agency, the United States Digital Service, and then redesignating it as part of the Executive Office of the President (EOP). The order specified that DOGE is not a federal agency, a legal distinction which turns out to be critical in at least three pending lawsuits. Because if DOGE is not an agency, then it doesn’t have to comply with federal records laws or have its leader confirmed by the Senate. But only an agency can claim authority to shut down great swathes of the federal bureaucracy — something Musk brags about doing on the daily. And so the Justice Department has tried to situate itself in the cut, arguing that DOGE is simply an “instrumentality” of the president. A note from Aaron: Working with brilliant contributors like Liz takes resources. If you aren’t already a paid subscriber, please sign up to support our work. In a case called AFL v. Department of Labor, a consortium of labor unions sued to block DOGE personnel from rifling through sensitive personal and financial information on the DOL’s servers. They argued that, if DOGE is not itself an agency, then it can neither park employees at agencies under the Economy Act of 1932 nor access sensitive government records under the Privacy Act of 1974. Judge John Bates denied the unions’ request to lock DOGE out of the database, ruling that entity was pretty clearly an agency since it’s engaged in a wholesale reshaping of the federal government. “[P]laintiffs have not shown a substantial likelihood that USDS is not an agency,” he wrote, adding that “it follows that plaintiffs have not shown a substantial likelihood on the merits of their Privacy Act claim, for without the argument that USDS employees may not be detailed under the Economy Act, the Privacy Act claim all but disappears.” But he called out the government for its “desire to escape the obligations that accompany agencyhood — subjection to FOIA, the Privacy Act, the APA [Administrative Procedures Act], and the like — while reaping only its benefits.” “And so USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient,” the judge observed drily.
Judge Bates’s colleague Judge Tanya Chutkan came to much the same conclusion in a case called New Mexico v. Musk. There a coalition of states argued that DOGE is a federal agency, and thus Trump needed to nominate Musk as its director and submit him for Senate confirmation under the Constitution’s Appointments Clause. The judge denied the states’ motion for a temporary restraining order barring DOGE from wreaking havoc on the federal government, finding that the states had failed to demonstrate the requisite danger of imminent, irreparable harm to justify a TRO. But she made it clear that she agreed that DOGE is definitionally an agency.
On the face of it, both sets of plaintiffs lost, but the failure to secure emergency relief shouldn’t obscure the importance of the courts’ rulings. Because if DOGE is a federal agency, it’s subject to FOIA, the Privacy Act, and the APA — which is exactly why President Trump tried to preemptively declare it a non-agency by fiat. … would still be subject to FOIA.As Judge Bates pointed out, designating DOGE as part of the EOP was an obvious attempt to exempt it from multiple federal laws. Indeed, spokesperson Katie Miller acknowledged as much on Twitter when 404 Media reported that DOGE was getting off Slack to evade FOIA. “Per the Executive Order [DOGE] was reorganized under the Executive Office of the President and subject to Presidential Records,” she wrote. This is like Joe Biden hosting a Hunter Biden art exhibition with his paintings for sale at the White House, only Hunter is actually the unelected co-president and not just a private citizen Tue, 11 Mar 2025 19:38:48 GMT View on BlueskyUnder the Federal Records Act (FRA), documents generated by federal agencies are presumptively public and subject to FOIA. But under the Presidential Records Act (PRA), presidential records are not subject to FOIA, and the president can functionally lock up them up for five years after he leaves office. Worse still, if the president refuses to comply with the PRA and destroys documents, as Trump did routinely, there’s essentially no remedy. Not every document created in the EOP is a presidential record immune from FOIA. The DC Circuit ruled that the Office of Science and Technology and the Council on Environmental Quality, both of which are part of the EOP, are subject to FOIA because they exercise substantial independent authority. But the administration takes the position, at least as a legal matter, that Musk and his minions are simply “advising” President Trump, and lack any authority of their own. It’s a preposterous stance in light of multiple executive orders giving DOGE hiring and firing authority, as well as access to databases at every government agency. But when CREW filed FOIA requests for DOGE documents, they got no response. And so on February 20, the nonprofit sued and filed a motion for preliminary injunction forcing the government to cough up the data by March 10 so that Congress could be informed of DOGE’s activity before passing a budget.
The DOJ tried mightily to duck the agency issue, leaning instead into CREW’s demand for expedited processing and complaining in their opposition memorandum that “the primary effect of granting a preliminary injunction would be to disadvantage other requesters who would be pushed further back in the FOIA processing queue.” But at the hearing, the government admitted it was refusing to complete the FOIA request on any timeline because it believes that DOGE is not an “agency” susceptible to FOIA. And like Judge Bates and Judge Chutkan, Judge Christopher Cooper wasn’t buying it. The judge pointed to DOGE’s “substantial authority independent of the President” as laid out in the executive order and later confirmed in public statements by both Musk and Trump. Trump on his cabinet members: "We're gonna be watching them. And Elon and the group are gonna be watching them. And if they can cut, it's better. And if they don't cut, then Elon will do the cutting."  Thu, 06 Mar 2025 20:45:51 GMT View on BlueskyAnd the judge noted that DOGE is actually exercising that independent authority: After Musk tweeted that he’d spent the weekend “feeding USAID to the wood chipper,” the agency was functionally shut down. “For all these reasons, the Court concludes that USDS likely qualifies as an agency for the purposes of FOIA,” he wrote. Judge Cooper also tweaked the government for playing games with regard to DOGE’s status. “The Court finds it meaningful that in its briefing and at oral argument, USDS has not contested any of the factual allegations suggesting its substantial independent authority,” he wrote, referring back to Judge Bates’s “Goldilocks” comment. And while Judge Cooper wasn’t willing to enforce the March 10 deadline, he did order expedited processing, with rolling production to begin immediately.
FOIA requests often take years, but, as the court notes, DOGE is used to moving fast when it comes to burning down the government. “In the less than two months since President Trump’s inauguration, USDS has reportedly caused 3% of the federal civilian workforce to resign, shuttered an entire agency, cut billions of dollars from the federal budget, canceled hundreds of government contracts, terminated thousands of federal employees, and obtained access to vast troves of sensitive personal and financial data,” Judge Cooper wrote, adding that, “given that [DOGE] is apparently not processing any other requests, the Court doubts it would impose much of a burden on the department to expediently process CREW’s request.” He ended by ordering DOGE to preserve all documents, in light of multiple media reports that DOGE employees are communicating via Signal and non-government emails. The ruling is a total loss for the Trump administration, which will doubtless appeal in hopes of continuing to hide what Musk is doing. But, barring intervention by a higher court, we’ll soon see the results of CREW’s pared-down query:
And perhaps more importantly, the unanimous rulings that DOGE is an agency may provide a handle for outside litigants and Congress to grab hold of it before it succeeds in decimating the entire federal government. Let the FOIA and APA cases begin! That’s it for todayWe’ll be back with more tomorrow. If you appreciate today’s newsletter, please support our work by signing up. Paid subscribers make PN possible. |
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