DOGE structure, authority emerge as biggest DC mystery under Trump

The Department of Government Efficiency’s (DOGE) structure and authority has become a central mystery in the barrage of lawsuits seeking to stymie its operations.

After insisting Elon Musk isn’t the group’s formal leader, the White House under mounting pressure cleared up confusion over DOGE’s leadership Tuesday, naming Amy Gleason as the cost-cutting panel’s administrator.

But how exactly is Musk involved? And is DOGE an agency?

Those open questions became front and center at a series of court hearings this week in some of the roughly two dozen lawsuits challenging DOGE’s operations.

Hanging in the balance is whether the group can enact its ambitious plans without congressional action, access confidential government systems and avoid open records requests.

Elon Musk’s involvement

Questions had been mounting about Musk’s role ever since the administration submitted court filings indicating the Tesla CEO is not a DOGE employee.

“The administration is really trying to, I think, create confusion about what Musk's role is,” said John Pelissero, director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University.

Pelissero suggested that the confusion surrounding Musk’s role has allowed him to skirt typical ethics rules, such as filing financial disclosures or divesting from business interests that pose conflicts.

The White House said earlier this month that the tech billionaire plans to file a disclosure, but it will not be made public, according to The New York Times.

“It's like an elusive object out there that no one seems to be able to rein in because Trump is letting Musk do whatever he wants,” Pelissero added.

Confusion about Musk’s authority also spawned a tiff with Trump’s own Cabinet heads this week, when the tech billionaire asserted that federal employees who failed to respond to a government-wide email asking what they did last week would be fired.

However, several agencies told their staff not to respond to the email, and the White House later walked back Musk’s threat, seemingly siding with Cabinet secretaries.

Judges have grilled government lawyers about Musk’s involvement in DOGE, given that he has publicly projected leadership over the group and promised “maximum transparency.”

Tensions came to a head at a Monday hearing, when U.S. District Judge Colleen Kollar-Kotelly pressed Justice Department attorney Brad Humphreys.

“What is his role? Is he sort of a separate advisor? Is he in the Chief Executive Office of the President? What is he?” asked Kollar-Kotelly, an appointee of former President Clinton.

“I don't have any further information beyond a close advisor to the president,” Humphreys responded.

When Kollar-Kotelly moved on to ask who the DOGE administrator was, Humphreys replied, “I don’t know.”

“Ok. Everybody speak up over there if you know anything else at the table,” the frustrated judge told the other government attorneys in her courtroom.

No answer came.

The next day, the White House announced Gleason as the formal head of DOGE. Gleason, who worked at the U.S. Digital Service in Trump’s first administration, rejoined the office last month.

‘Super cabinet member’ or White House adviser?

The administration maintains that Musk is simply a senior advisor to the president who “has no actual or formal authority to make government decisions himself; rather he can only advise the President and communicate the President’s directives.”

But multiple lawsuits claim Musk instead wields independent authority to the point where he should be deemed a “principal officer,” which would trigger a need for Senate confirmation under the Constitution’s Appointments Clause.

Norm Eisen, an attorney for plaintiffs in one such case, called Musk a “super cabinet member” at a Friday hearing.

“He’s beyond the power of a cabinet member. He's reaching across the government, taking a wrecking ball to our systems. It's clearly an instance of a principal officer,” said Eisen.

Eisen previously served as counsel to Democrats during Trump’s first impeachment and now leads State Democracy Defenders Fund, which has filed multiple lawsuits against the new administration.

Later in the hearing, U.S. District Judge Theodore Chuang called it “highly suspicious” that the government could not produce standard forms establishing Musk’s appointment.

“Given that strange disconnect where he has always referred to himself as administrator of DOGE, not senior adviser to the president, until these lawsuits were filed, having some backup documentation might be beneficial,” said Chuang, an appointee of former President Obama.

Justice Department attorney Joshua Gardner noted that some agencies didn’t oblige Musk’s government-wide email directing employees to reply with five accomplishments from the past week.

“If it’s the case that Mr. Musk has all this authority, then it seems inconsistent for all these agency heads to say we’re not going to do this,” said Gardner.

Is DOGE an agency? It depends, DOJ says

The group’s structure has been a source of confusion since Trump first announced in November that Musk would co-chair the group alongside fellow tech entrepreneur Vivek Ramaswamy, who stepped down just days into the administration.

Trump initially said DOGE would “provide advice and guidance from outside of Government.” However, on his first day in office, he created DOGE from the existing U.S. Digital Service, renaming the office via executive order.

In one recent ruling, U.S. District Judge John Bates, an appointee of President George W. Bush, insinuated the administration was looking to hand DOGE legitimate authority without subjecting it to the transparency requirements agencies normally face.

The judge summed up the government’s position as “a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.”

“I think it's a question that the administration has tried to dance around,” John Lewis, deputy legal director at policy think tank Governing for Impact, told The Hill. “Thus far, it seems to want to have it both ways.”

The administration insists its position is tenable because federal laws define an “agency” differently. So while DOGE is not an agency subject to the Freedom of Information Act (FOIA), the administration argues, DOGE is one under the Economy Act.

The latter provides an avenue for the administration to fund the group’s operations and detail employees across the federal bureaucracy. It has also become crucial in aiding the government as it seeks to fend off numerous lawsuits accusing DOGE employees of improperly accessing sensitive agency data in violation of the Privacy Act.

Meanwhile, multiple groups have sought to persuade judges that DOGE must respond to records requests under FOIA. A hearing in one case is set for Friday.

The Justice Department reiterated in court filings this week that DOGE “is not subject to FOIA” because it “became a free-standing component of” the Executive Office of the President “that reports to the White House Chief of Staff.”

Lewis warned the administration “really can't have it both ways.” He pointed to a recent court ruling, finding that DOGE appears to constitute an agency under the Economy Act.

The ruling allowed DOGE staff to access sensitive data at the Department of Labor, Consumer Financial Protection Bureau (CFPB) and Department of Health and Human Services — seemingly a win for the Trump administration.

However, Lewis said, “The reasoning that court the engaged in is actually very problematic for DOGE, and if adopted more broadly, would suggest that DOGE should be covered by FOIA and other statutes that apply to agencies.”

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