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.”
