Feb 26 (Reuters) – On social media and at political rallies, Elon Musk has taken credit for leading the team that is cutting allegedly wasteful U.S. government spending, even waving a chain saw on stage at a conference.
In court, it’s a different story.
During a hearing on Monday in a case trying to block access by the DOGE cost-cutting team to Treasury Department systems, a federal judge repeatedly pressed a government lawyer to clarify who is running things. “Where is Mr. Musk in all of this?” asked U.S. District Judge Colleen Kollar-Kotelly.
“I don’t have any information beyond close adviser to the president,” responded Bradley Humphreys, an attorney for the Department of Justice.
“You can’t tell me what role he has?” the judge persisted.
Kollar-Kotelly did not say if she would block DOGE and Musk from the Treasury Department information systems as requested.
Questions about Musk’s role and the activities of the team, known as the Department of Government Efficiency, are at the heart of multiple lawsuits seeking to block them from accessing government systems and slashing programs.
MUSK’S ‘SPECIAL’ STATUS
Many of the suits allege that Musk and DOGE are violating the Constitution by wielding the kind of vast power that only comes from agencies created through the U.S. Congress or appointments made with confirmation by the U.S. Senate.
Despite Musk’s public assertions to the contrary, the Department of Government Efficiency operates in great secrecy.
The initial executive orders signed by President Donald Trump setting up DOGE described it primarily as an outfit to modernize software, not an agency. The Trump administration designated Musk a “special government employee.”
Musk has been the face of DOGE since its inception, but White House Office of Administration Director Joshua Fisher said in a February 17 court filing that Musk is not the outfit’s administrator or even a DOGE employee.
On Tuesday, the White House identified Amy Gleason as DOGE’s “acting administrator.” She did not immediately respond to a request for comment made to the Trump administration.
‘DELIBERATE OR NOT’
The scant information presented in court about who is ordering the cost-cutting and how it is working has led some judges to rule in favor of Musk and DOGE, at least for now.
To block Musk’s efforts with a temporary restraining order, or TRO, plaintiffs must show they will suffer imminent, irreparable harm without one, a high legal bar to clear.
At a hearing last week in a case brought by unions and Democratic state attorneys general, U.S. District Judge Tanya Chutkan in Washington said DOGE’s lack of transparency made it difficult to show it was on the verge of causing irreparable harm.
“I don’t know if that’s deliberate or not, but I will concede that it is difficult to see what’s happening next and to predict that and come in with a concrete harm,” Chutkan said at the February 17 hearing.
The states presented her with extensive news reporting about DOGE and Musk shuttering programs, accessing confidential data, slashing funding and firing personnel.
“It’s an understatement to say there’s a lot of news reports out there,” said Chutkan. “But the courts can’t act based on the media reports.”
She denied a temporary restraining order to prevent DOGE from accessing sensitive information at seven agencies. The case will continue and the attorneys general will seek evidence to support a more permanent injunction.
THE GOLDILOCKS AGENCY
In some cases, however, despite noting concerns about DOGE’s opacity, judges have found there is sufficient evidence to pause its activities.
U.S. District Judge Jeannette Vargas on Friday temporarily blocked DOGE from accessing Treasury systems responsible for trillions of dollars of payments because she found there was a realistic danger that confidential information was going to be disclosed.
She was particularly troubled that the government did not know what information was accessed by Marko Elez, a former software engineer for Musk’s companies who resigned from DOGE on February 6.
“Even now, weeks after his departure, the Treasury Department is still reviewing his logs to determine what precisely he accessed and what he did with his access,” Vargas wrote in her Friday ruling.
Government lawyers have even used shifting definitions for DOGE, which in one instance worked in their favor.
U.S. District Judge John Bates in Washington denied a request by the unions for a temporary restraining order against Musk and DOGE.
In doing so, Bates noted that the Trump administration argued DOGE was an agency in order to comply with a law known as the Economy Act that allowed DOGE to detail its staff to various government agencies.
But Trump created DOGE as part of the Executive Office of the President and therefore not as an agency that is subject to the Freedom of Information Act, an open records law known as FOIA.
The judge described DOGE in fairytale terms: “A Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.”
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Reporting by Tom Hals in Wilmington, Delaware; Additional reporting by Jack Queen in New York; Editing by Noeleen Walder, Amy Stevens and Sandra Maler
Our Standards: The Thomson Reuters Trust Principles.
Legal correspondent specializing in politically charged cases.
