US argues for secrecy
A three-judge panel at the appeals court was unswayed by the government’s claim that this process is too burdensome.
“Although the government protests that any such assertion of privilege would be burdensome, the only identified burdens are limited both by time and reach, covering as they do records within USDS’s control generated since January 20,” the ruling said. “It does not provide any specific details as to why accessing its own records or submitting to two depositions would pose an unbearable burden.”
Yesterday, the District Court set a discovery schedule requiring the government to produce all responsive documents within 14 days and complete depositions within 24 days. In its petition to the Supreme Court today, the Trump administration argued that DOGE’s recommendations to the president should be kept secret:
The district court’s requirement that USDS turn over the substance of its recommendations—even when the recommendations were “purely advisory”—epitomizes the order’s overbreadth and intrusiveness. The court’s order compels USDS to identify every “federal agency contract, grant, lease or similar instrument that any DOGE employee or DOGE Team member recommended that federal agencies cancel or rescind,” and every “federal agency employee or position that any DOGE employee or DOGE team member recommended” for termination or placement on administrative leave. Further, USDS must state “whether [each] recommendation was followed.”
It is difficult to imagine a more grievous intrusion and burden on a presidential advisory body. Providing recommendations is the core of what USDS does. Because USDS coordinates with agencies across the Executive Branch on an ongoing basis, that request requires USDS to review multitudes of discussions that USDS has had every day since the start of this Administration. And such information likely falls within the deliberative-process privilege almost by definition, as internal executive-branch recommendations are inherently “pre-decisional” and “deliberative.”
Lawsuit: “No meaningful transparency” into DOGE
The US further said the discovery “is unnecessary to answer the legal question whether USDS qualifies as an ‘agency’ that is subject to FOIA,” and is merely “a fishing expedition into USDS’s advisory activities under the guise of determining whether USDS engages in non-advisory activities—an approach to discovery that would be improper in any circumstance.”
