By Matthew Vadum
Contributing Writer
The Supreme Court on Tuesday agreed to decide whether a federal judge improperly ordered broad discovery against the U.S. DOGE Service in a Freedom of Information Act lawsuit that pits a watchdog group’s demand for records against the government’s claim that the order reaches too deeply into internal executive branch advice.
The decision took the form of an unsigned order without comment. No justices dissented.
Discovery is part of the evidence-gathering process in litigation.
DOGE is the Department of Government Efficiency, a White House office formed in early 2025 to reduce federal spending and regulations. It was led by tech entrepreneur Elon Musk until he left in May 2025.
DOGE officially shut down on July 4 after reaching the end of its limited, 18-month term.
DOGE garnered both strong praise from conservatives and fiscal hawks and fierce criticism from liberals and federal employee unions for its recommendations, which included dismantling agencies such as the U.S. Agency for International Development and spending freezes.
More than a dozen lawsuits were filed against DOGE by state attorneys general, federal employee unions, and civil liberties organizations, alleging the agency wielded unchecked power outside its legal authority.
The new case isn’t about DOGE’s policies — it concerns whether the office has to hand over its records under FOIA.
Citizens for Responsibility and Ethics in Washington filed the underlying lawsuit in federal court in Washington in February 2025.
Four days after President Donald Trump created DOGE, CREW filed a FOIA request seeking all communications between the DOGE administrator and DOGE staff and all communications with “any federal agency.” DOGE denied the request, saying that because it reports to the Executive Office of the President and assists the president, it was subject to the Presidential Records Act, not FOIA. Weeks later, the group sued, seeking a preliminary injunction requiring DOGE to produce the requested documents, according to the government’s petition.
U.S. District Judge Christopher Cooper denied the motion for an injunction in April 2025, but found DOGE was probably an agency subject to FOIA. He directed DOGE to comply with the information request expeditiously to help resolve the question of whether DOGE was covered by FOIA. DOGE moved for reconsideration, and the court denied the motion. The U.S. Court of Appeals for the District of Columbia Circuit declined to block Cooper’s order.
In May 2025, the Supreme Court intervened, ordering the D.C. Circuit to scale back the order Cooper issued. The high court asked the lower courts to be restrained and careful when digging into White House communications.
Courts often treat White House communications as sensitive, even when they fail to qualify under a formal claim of executive privilege.
In July 2026, the circuit court declined the Trump administration’s request to block the disclosure, and the government appealed to the Supreme Court.
In the petition, U.S. Solicitor General D. John Sauer said the D.C. Circuit erred.
The lower court’s “cavalier approach” to calling in a senior presidential adviser for a deposition “starkly contrasts with the courts of appeals’ uniform recognition that such depositions would require ‘extraordinary circumstances,’” Sauer said. He cited a recent 4th Circuit ruling that shielded other senior officials from being deposed about DOGE activities.
Sauer said the discovery ordered by the lower courts is unfair to the government, adding it is potentially so broad that it would give CREW much of the information it seeks before any court has actually ruled on whether FOIA covers DOGE at all.
After the Supreme Court’s ruling urging caution, the D.C. Circuit declined to take up whether any aspects of that discovery presented separation-of-powers problems, Sauer said. The separation of powers is a constitutional doctrine that divides the government into three distinct branches to prevent any single branch from holding too much power.
CREW’s attorneys had urged the high court not to take up the case.
The group said in a brief that DOGE exercised substantial authority, that discovery is needed to comply with the Supreme Court’s prior order, and that the government should not be able to shield DOGE from public scrutiny by placing it within the Executive Office of the President.
The government’s proposed rule cannot be squared with FOIA and would invite abuse by allowing “hugely consequential entities” like DOGE to sidestep a key sunshine law, the brief said.
The case has yet to be scheduled for oral argument. That hearing is likely to take place in early 2027.
Jack Phillips contributed to this report.
