President-elect Donald Trump listens to Elon Musk as he arrives to watch SpaceX’s mega rocket Starship lift off for a test flight from Starbase in Boca Chica, Texas, Nov. 19, 2024 (Brandon Bell/Pool via AP, File).
The District of Columbia Circuit Court of Appeals has lifted a block on efforts to probe the internal structure of the Department of Government Efficiency (DOGE), clearing the way for a government watchdog group to move forward with “limited discovery” — including the disclosure of records reflecting DOGE’s “organizational role, authorities and operational reach” — in an ongoing lawsuit against the agency-adjacent organization.
The appeals court issued a per curiam order Wednesday, siding with the Citizens for Responsibility and Ethics in Washington (CREW) by letting it move forward with discovery attempts in a federal suit filed against DOGE and Elon Musk earlier this year. The court rejected a petition for a writ of mandamus that was filed by the Trump administration on April 18. The government had asked the court to halt a lower court’s order allowing expedited discovery to take place in the CREW case, along with asking for an emergency stay pending a ruling.
The stay wound up being granted, but was lifted Wednesday by U.S. Circuit Judges Karen Henderson, a George H.W. Bush appointee; Robert L. Wilkins, a Barack Obama appointee; and J. Michelle Childs, a Joe Biden appointee, in their per curiam order.
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The Trump administration’s argument that “the district court’s order permitting narrow discovery impermissibly intrudes upon the President’s constitutional prerogatives” came too late, the judges found.
“As an initial matter, the government forfeited its primary objection to the district court’s order under [case law] by failing to raise that argument below,” the order says. “At no point during the summary judgment briefing, or in opposing CREW’s discovery motion, did the government argue that the requested discovery posed a separation-of-powers issue or risked intruding into the core functions of the presidency.”
The underlying lawsuit from CREW is an effort to enforce Freedom of Information Act (FOIA) requests against the Trump administration’s intra-governmental fraud-and-waste-focused organization. DOGE, in turn, has maintained “it is not an agency subject to FOIA.” The lower court disagreed and entered an injunction requiring expedited processing of CREW’s FOIA requests against DOGE. The plaintiffs then moved for summary judgment on the lawsuit and, seeking a quick bit of finality, moved for expedited discovery.
U.S. District Judge Christopher Cooper, a Barack Obama appointee, largely gave CREW what it wanted by including a request to make U.S. DOGE Service Administrator Amy Gleason sit for a deposition.
The judges on Wednesday listed several reasons for denying the government the “extraordinary remedy” of a writ of mandamus, which is an attempt to have one court force another entity within the government to do something, or to force itself to correct a mistake.
“On the merits, the government has also not shown that it has no other adequate means of relief,” the order says.
“It does not provide any specific details as to why accessing its own records or submitting to two depositions would pose an unbearable burden,” the judges later add, noting that the CREW request is a “far cry” from a “sweeping discovery request.”
In addition, the order says, the government failed to assert “a clear and indisputable right.”
Colin Kalmbacher contributed to this report.
