DOGE is operating within a bubble of lawlessness

Among the more than 90 pending lawsuits challenging the flurry of allegedly illegal and unconstitutional actions President Trump has initiated since Jan. 20, more than 20 involve the so-called Department of Government Efficiency.

So far, no judge has issued an order altogether stopping DOGE which, according to one lawsuit, “has roamed through the federal government unraveling agencies, accessing sensitive data, and causing mass chaos and confusion for state and local governments, federal employees, and the American people.”

A big reason why DOGE has managed to operate within a bubble of lawlessness is that it is doing things that have never been tried before.

DOGE is not an official government agency. It was not created by Congress like other federal agencies. Instead, Trump issued an executive order renaming the already-existing U.S. Digital Service. Elon Musk, a private billionaire, has used it to wield unprecedented power over the federal government writ large under the false pretense of slashing wasteful and fraudulent spending.

Although two judges have found that the Trump administration is already defying court orders halting his domestic and foreign funding freezes, others have taken key steps towards slowing DOGE down — which is more than can be said for Congress.

District Judge Paul Engelmayer in New York issued an injunction on Feb. 8 blocking DOGE from accessing Treasury Department data. On Feb. 18, Rep. Derrick Van Orden (R-Wisc.) responded by filing articles of impeachment against Engelmayer, claiming his ruling showed “bias” against Trump. (Three days earlier, Musk had called for “activist” judges to be impeached.)

Last week, District Judge John Bates in Washington, D.C. ordered that the government produce basic information, known as “discovery,” about how DOGE is structured. The order gets to the most core and confounding problem with DOGE: Nobody seems to know what Musk and his small staff, which he’s called his “demolition crew,” are actually doing behind closed doors or how they literally wrested from career federal employees the unprecedented power to do it.

Compounding the problem is the government’s inconsistent positions on what DOGE is and who is in charge of it. White House official Joshua Fisher filed a sworn statement last month with another D.C. federal judge, Tanya Chutkan, claiming that Musk is not actually running DOGE and “has no actual or formal” decision-making authority, but is merely an adviser to the president.

This is obviously not true. Last month, Musk publicly called for the U.S. to “delete entire agencies” from the federal government. The Trump administration now expects judges, litigants and the American people to believe that the black box of DOGE — which has already negatively affected the lives of tens of thousands of federal employees and their families (there are no official figures) — actually isn’t doing anything illegal or even acting at Musk’s direction.

On the one hand, the administration claims that everything is being done by the book, using federal contractors and “special government employees.” On the other hand, it has argued that DOGE is not subject to basic oversight laws like the Freedom of Information Act, while the very identities of its staffers — many of whom reportedly communicate on the encrypted platform Signal — and the details of its work are mostly not public.

In the case before Judge Bates, the plaintiffs sued to stop DOGE from accessing personal information within the Department of Labor that is protected under the federal Privacy Act. In his order granting discovery, Bates pointed out the government’s inconsistent positions. Lawyers for DOGE submitted affidavits, he wrote, that “introduced before-unknown information — some of which conflicted — on how [DOGE] is operating at the defendant agencies: from the number of [DOGE] employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given.”

Under the circumstances, Bates reasoned, “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 through very limited discovery.”

If the Trump administration complies with Bates’s order, it will have to produce documents on issues as basic as the “information about the extent of access to sensitive systems agencies have given [DOGE] employees, who at the agencies authorized such access, and any training [DOGE] employees received.” It must also offer up four people to answer questions in depositions regarding how “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.”

All of this is vital information for the public to know. Hopefully upon seeing what, if anything, the government produces in response to Bates’s order, other federal courts will demand much more.

Bear in mind that, over the last 10 years, Musk’s companies Tesla and SpaceX have reportedly secured $18 billion in federal contracts. Now that Musk is apparently cutting contracts and programs elsewhere, it is impossible to know whether any of his actions are actually saving taxpayers money, and if so, where that savings is going. The DOGE website has been riddled with errors and misstatements, including taking credit for stopping contracts that expired years ago.

DOGE has also been dismantling agencies, firing top officials and career employees who have reportedly been engaged in at least 32 investigations or enforcement actions into Musk’s companies. According to White House Press Secretary Karoline Leavitt, Musk is somehow self-policing for these blatant conflicts of interest.

That’s not how our system of laws work. Trump knows it. Musk knows it. And, thankfully, the federal courts know it too.

Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”

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