The Law Might Finally Catch Up to DOGE

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Believe it or not, it’s been over a year since Elon Musk’s Department of Government Efficiency tore through the U.S. government, infamously shuttering the U.S. Agency for International Development while falsely claiming it had saved America $52.8 billion. Throughout its 10-month run, DOGE was dodging a Freedom of Information Act request from a public interest group, which eventually led to a lawsuit that sought to force the agency to hand over internal records that would reveal how it was making decisions. The dispute has been simmering for over a year now, ping-ponging between lower courts, appeals court panels, and the Supreme Court as the Trump administration has been pushing to protect DOGE from any public disclosures. But now, this fight might finally be coming to an end, as the Supreme Court agreed this week to consider the case, for a second time—the first time, SCOTUS sided with the Trump administration by forcing a lower court to reevaluate its order forcing it to hand over DOGE’s records—and Its decision stands to impact what responsibility all federal agencies have to the public—if any.

On Tuesday, the Supreme Court agreed to hear arguments in U.S. DOGE Service v. U.S. District Court for the District of Columbia, where the justices will weigh in on whether DOGE should be classified as a federal agency, and therefore subject to FOIA requests—a federal mandate that gives any person the right to access records from federal executive branch agencies. The Trump administration has been insisting for the past year that DOGE was not a federal agency, but a presidential advisory body, and therefore not subject to FOIA. However, Citizens for Responsibility and Ethics in Washington, the watchdog group suing, is calling foul, noting that DOGE was given taxpayer dollars to the tune of $41 million to fund its operations. DOGE also incorrectly sought to apply the Cheney standard—a 2004 case that shielded the executive branch from complying with public records requests—in order to maintain autonomy of its office and safeguard confidentiality of its communications, the lawsuit argues.

This case will be critical in holding DOGE accountable for not just the utter destruction it caused within the U.S. government, but in setting a clear precedent for how U.S. presidents can or cannot bypass federal disclosure laws. For decades, journalists in particular have relied on FOIA to unearth waste, abuse, and ethics violations committed by the U.S. government, something that’s become alarmingly common under Trump.

CREW first filed FOIA requests with DOGE in January 2025, around the time President Donald Trump established the agency via executive order. The watchdog group noted that Musk was tasked with running DOGE even though he never received official congressional approval and was operating “seemingly unchecked, with no clarity on its structure, staffing, budget or operations, including whether it is following federal ethics and transparency laws or even acting within its legal authority,” CREW said in a statement. The group’s goal was to arm Congress with critical information that could inform its upcoming appropriations cycle. However, things did not go to plan.

The Trump administration flatly refused to comply with CREW’s records request, while DOGE fired tens of thousands of federal employees, collected Americans’ most sensitive data, and dismantled core agencies like USAID, the Consumer Financial Protection Bureau, the Department of Education, and more. By February 2025, CREW had filed a lawsuit in order to force DOGE’s cooperation. In court the Trump administration argued DOGE was not legally required to comply with FOIA requests because it was not technically a federal agency. U.S. District Judge Christopher Cooper disagreed with that assessment and concluded that DOGE was likely subject to FOIA “because it is endowed with and is apparently exercising ‘substantial authority independent of the President.’ ”

Unsatisfied, the Trump administration tried to appeal Cooper’s order but was rejected by the D.C. appeals court panel. Come May 2025, the administration decided to knock on the Supreme Court’s door, asking the justices to stay Cooper’s order, and they agreed. In an unsigned order, they said Cooper’s order was overly broad and needed to “counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.” In response, CREW amended its FOIA request to exclude any information about recommendations DOGE staffers made directly to the White House. Lower courts declined to block its records request, effectively forcing the Trump administration to hand over the bulk of CREW’s original FOIA request.

Still dissatisfied with having to give even an inch, the Trump administration did not comply with that ruling, and instead came back to SCOTUS this year, asking the justices to consider the case on its merits and assess all of CREW’s FOIA requests of federal agencies, from DOGE and beyond. It accused Cooper of continuing to approve “intrusive discovery against a presidential advisory body without adequate consideration for the separation of powers, the FOIA statute,” and the Supreme Court’s order from last year. The administration wants SCOTUS to apply the Cheney standard, while CREW has argued “this case looks nothing like Cheney,” and if it did it would effectively foreclose discovery in this case, which is not what SCOTUS said in last year’s order.

The Trump administration’s position in this case comes as no surprise, as the president is openly hostile toward the press and every other body that seeks to hold his administration accountable. Plus, he likely wants to protect the man singlehandedly bankrolling GOP campaigns for this year’s midterm elections, and beyond.

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Elsewhere in Jurisprudence

• In this week’s Amicus episode, Dahlia Lithwick talks with Julie Suk, Fordham law professor, about her new book and how the Supreme Court isn’t just making bad decisions—it’s working exactly as designed. Suk argues that America needs a shadow court to issue advisory opinions on the same issues SCOTUS decides, giving way to a concrete alternative to judicial supremacy

• In the Amicus bonus episode, Dahlia sits down with Madiba K. Dennie of Balls and Strikes to discuss Supreme Court Justice Samuel Alito’s new book and the court’s new term. A critical climate case is on the docket and the justice’s record on the death penalty was on full display with the botched execution of Christa Pike; they discuss it all.

• In honor of Slate’s 30^th anniversary, there is an additional Amicus bonus episode this week in which Dahlia recounts her most-read article ever: “Chaos Theory: A Unified Theory of Muppet Types.” She’s joined by Slate alumna June Thomas.

• Friend of Slate Jessica Pishko writes about a disturbing murder case in Arkansas and how it’s coming to light in time for this year’s midterm elections. Pishko explains the story of Aaron Spencer, a 38-year-old Army veteran who was nearly put on trial for murdering a man but is now running for local sheriff.

•  Secretary of Defense Pete Hegseth has been making international headlines for his decision to livestream the execution of Nidal Hasan, a former member of the U.S. military charged with killing 13 soldiers. Austin Sarat, professor of law at Amherst College, argues this isn’t about educating the public about serious crimes, but gives way to a circus-like atmosphere tinged “with the brutal white supremacy of the Jim Crow South.”

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