Tesla and SpaceX CEO Elon Musk, left, and Republican presidential nominee former President Donald Trump attend a campaign event at the Butler Farm Show, Saturday, Oct. 5, 2024, in Butler, Pa. (AP Photo/Alex Brandon).
The nation’s largest federation of labor unions on Thursday won a significant victory against the Trump administration in their efforts to peel back the curtain on the activities of the Elon Musk-helmed Department of Government Efficiency (DOGE).
In a 16-page order, U.S. District Judge John Bates, a George W. Bush appointee, ordered four members of the “opaque” cost-cutting group to sit for depositions on a series of “properly-scoped topics.” The under-oath testimony will total eight hours, the court ruled.
The judge’s move to enforce a certain measure of transparency on DOGE comes in response to an expedited discovery request from the AFL-CIO, several other unions, and a progressive economic think tank. Filed earlier this month, the underlying lawsuit aims to bar the often-evasively-defined group from accessing nonpublic Department of Labor information and accuses DOGE of violating “multiple laws.”
“Although this in an Administrative Procedure Act case, the discovery plaintiffs request is proper because it is necessary to determine the contours of the agency actions that plaintiffs challenge,” the order reads. “The limited expedited discovery plaintiffs request is also reasonable.”
In the order, Bates describes the relief granted to the plaintiffs as “very limited” and says it is based on submissions the defendant administrative agencies have already submitted in the case.
In a series of attestations, Trump administration officials aimed to give the impression that DOGE’s activities were generally aboveboard – with an eye toward the broader goal of refuting the claims advanced by the unions and the Economic Policy Institute.
“Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues,” the court observed. “It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues.”
More Law&Crime coverage: ‘The entity has worked in the shadows’: Trump admin and DOGE unlawfully refusing to comply with public records requests despite vow of ‘maximum transparency,’ lawsuit claims
In other words, the plaintiffs are now simply being allowed to follow-up on those declarations, according to the court’s order.
Moreover, Bates noted, the government more or less invited in such questioning because the statements “introduced before-unknown information” about DOGE’s activities within several agencies. And, the judge added, some of that information “conflicted.”
The court describes such subject matter as including “how [DOGE] is operating at the defendant agencies” including “the number of [DOGE] employees working at each defendant agency” as well as “training and agreements put in place for those employees” and “access those employees are given.”
The judge, in a lengthy footnote, elaborates further on how the government put itself in the position it now finds itself in:
The Court also notes that defendants have thus far not relied solely on legal arguments, but also on facts they put in the record. And this evidence goes to the very issues they seek to address in their motion to dismiss. For example, the declarations submitted with defendants’ opposition to plaintiffs’ second [temporary restraining order] motion indicate how many [DOGE] employees, if any, are at each agency, the scope of their work, the procedures, policies, and agreements surrounding their purported detail, and their chain of command. As noted, these facts go to plaintiffs’ harm—implicating not only irreparable harm, but Article III standing and final agency action. In other words, the evidence defendants have thus far put in the record goes to the very issues on which plaintiffs seek discovery. … [T]his all indicates that, while defendants intend to make legal arguments in their motion to dismiss, there is a possibility that defendants’ motion to dismiss could rest on facts outside the pleadings, making discovery both beneficial and necessary.
As for the unions and the think tank, the judge says they made a more convincing argument based on the current state of the litigation.
“They explain that, as elucidated through the litigation on their two [restraining order] motions, the facts that bear on irreparable harm remain opaque,” the order continues. “These include the structure of [DOGE] and the scope of its authority, which the Court has said are not only unclear on the current record, but also critical to deciding the question of whether [DOGE] is an agency within the meaning of the Economy Act of 1933—and thus whether its employees are permitted by the Privacy Act to view individual information.”
The plaintiffs are seeking a preliminary injunction to cut DOGE off from government data systems. An effort to block such access with a temporary restraining order was previously rejected by Bates – which prompted Musk to post favorably on X (formerly Twitter). Musk has also joined a chorus of pro-Trump voice calling for Bates to be fired.
Now, as the court mulls whether a lengthier kibosh on access should be granted – which would likely last while the entirety of the lawsuit plays out, Bates says the information gained from the depositions “would be vital to resolving” whether or not to grant the injunction.
In sum, the plaintiffs will now be allowed to depose one administration-provided DOGE staffer in the White House-based U.S. DOGE Service, the Department of Labor, the Department of Health and Human Services, and the Consumer Financial Protection Bureau.
Their questions will be strictly cabined.
“[P]laintiffs here have put forward three specific topics to which each deposition will be limited,” the order goes on. “For the agency defendants, the [discovery] topics focus on how, if at all, the agencies’ systems-access procedures changed following [DOGE’s] creation, the role of [DOGE] employees at the agencies, and those employees’ use of sensitive systems.”
The plaintiffs are also allowed to submit a more extensive set of written questions and document requests. Here, the judge says those asks “largely” concern “individuals’ identities, dates, and names of systems, as well as documents that defendants’ own declarations have referenced.”
The government has until March 24 to comply with the order.
