The Fight Against Elon Musk and DOGE's Secrecy

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Over a half dozen lawsuits have been filed by nonprofit groups seeking to challenge the intense secrecy surrounding billionaire Elon Musk’s “Department of Government Efficiency” (DOGE) and force the disclosure of records.

At least three of the lawsuits contend that DOGE should be shut down until it “makes records available for inspection by the public,” as required under the Federal Advisory Committee Act (FACA). The other lawsuits ask courts to force officials to comply with Freedom of Information Act (FOIA) requests.

A key selling point for Musk and President Donald Trump is that American people have never been so supportive of proposals to take a chainsaw to government. But if that's the case, why is Musk thwarting transparency in nearly every way possible?

On January 20, when Trump assumed office, he issued an executive order that renamed the United States Digital Service created by President Barack Obama and established DOGE to “maximize governmental efficiency and productivity.” Musk and DOGE administrators immediately took steps to hide the agency’s spending and operations.

The Project on Government Oversight (POGO) sued Trump and DOGE on February 21, arguing that DOGE is not exempt from FOIA.

Danielle Brian, the executive director of POGO, declared, “Elon Musk and the DOGE team have been granted sweeping access to the federal agencies, and the records of their activities should be well preserved and made available to the public. The Trump administration has inappropriately tried to hide DOGE’s actions from the public by declaring it is subject to the Presidential Records Act, and the courts must intervene.”

If allowed to maintain files under the Presidential Records Act, it could be 2034 before public interest information is required to be released. 

Citizens for Responsibility and Ethics in Washington (CREW) filed a similar FOIA lawsuit [PDF] on February 20. The complaint noted “the entity has worked in the shadows—a cadre of largely unidentified actors, whose status as government employees is unclear, controlling major government functions with no oversight,” and DOGE “has provided no meaningful transparency into its operations or assurances that it is maintaining proper records of its unprecedented and legally dubious work.”

“The American people have a right to know how [DOGE] is managing (or mismanaging) their tax dollars and their data, how it is exercising its authority to influence government operations, whether conflicts of interest in [DOGE] leadership are impacting its work, and the extent to which it is operating outside of its slim legal mandate,” CREW added. “And the public interest is heightened by the unprecedented nature and scale of [DOGE’s] operations. [DOGE] must comply with federal transparency laws, regardless of whether it is a fully governmental body or a mix of public and private actors.”

Judge John Bates of the U.S. District Court for the District of Columbia already called out the Trump administration. On February 14, in a separate case [PDF], Bates addressed how Musk and DOGE have tried to “escape the obligations that accompany agencyhood” so that they do not have to respond to records requests. He said DOGE administrators would like it to be a “Goldilocks entity: not an entity when it is burdensome but an agency when it is convenient.” 

Another judge from the D.C. Court, Judge Colleen Kollar-Kotelly, suggested on February 24 that DOGE may be violating the appointments clause of the U.S. Constitution because Musk was not confirmed by the Senate. 

Bradley Humphreys, a U.S. Justice Department lawyer, insisted that Musk was not the DOGE administrator or an employee of DOGE, but merely a “close adviser.” That contradicted a prior statement by Trump and led Kollar-Kotelly to further question the government. 

“It does seem to me if you have people that are not authorized to carry out some of these functions that they’re carrying out that does raise an issue,” Kollar-Kotelly added. “I would hope that by now we would know who is the administrator, who is the acting administrator and what authority do they have.”

The day after 21 government technology staffers resigned from their jobs and shared a letter of protest with the Associated Press. "We swore to serve the American people and uphold our oath to the Constitution across presidential administrations. However, it has become clear that we can no longer honor those commitments.”

In January, CREW sent two letters to the National Archives and Records Administration, the Office of Management and Budget, and DOGE urging them to “investigate the potential unauthorized destruction of federal records of DOGE’s Signal communications and initiate a DOJ [Justice Department] enforcement to recover any records that might have been destroyed.” Yet neither agency responded to CREW’s letters. 

The American Civil Liberties Union (ACLU), American Oversight, the Campaign Legal Center, and the Center for Biological Diversity [PDF] each submitted their own FOIA lawsuits in the past weeks. 

Particularly, the ACLU singled out the fact that DOGE has likely employed artificial intelligence to “analyze government data, raising alarms about the potential for mass surveillance and politically motivated misuse of that deeply personal information.” Beyond the lawsuit, the ACLU also wrote to Congress expressing concern over the “executive branch’s flaunting of long-standing legal requirements and norms” that “undermines Americans’ privacy and Congress’s constitutional role.”

Public Citizen, a consumer advocacy organization, National Security Counselors, a national security law group, and a coalition led by CREW all immediately filed lawsuits against DOGE on January 20. They took a different approach by asserting that DOGE has violated a lesser-known law called FACA. 

According to CREW’s complaint, “Congress enacted FACA in 1972 as a ‘sunshine law’ to curb the Executive Branch’s reliance on superfluous and secretive ‘advisory committees’: ad hoc, non-federal bodies that counsel governmental decisionmakers on federal policy. Congress was particularly concerned that advisory committees 'were often dominated by representatives of industry and other special interests seeking to advance their own agendas.’”

A range of alleged violations are pointed out by CREW: the failure to file a charter, the failure consult with the General Services Administration (GSA), and the failure to incorporate a “fairly balanced” membership, especially by excluding “the perspectives of those connected to the people with the greatest stake in the services, programs, and regulatory protections”recommended for elimination. 

Furthermore, there is a clear requirement for transparency under FACA. 

…records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.

Even if a court sides with groups seeking to force transparency, there will be a major problem. Staff responsible for fulfilling FOIA requests at the Office of Personnel Management (OPM) were fired after CNN submitted a FOIA request for records on security clearances granted to Musk and DOGE staff. It’s possible that other agencies have had the few FOIA staff assigned to them gutted as well, and that could stall the disclosure of files for months.

ProPublica has reported that records that show "most of DOGE's money" apparently has come "in the form of payments from other federal agencies made possible by a nearly century-old law called the Economy Act." If the Trump administration is using the Economy Act, it should be subject to "the same open-records laws that cover most federal agencies, such as the Environmental Protection Agency or the State Department."

Trump has predictably responded to questions about DOGE’s secrecy and potentially unlawful actions by scoffing at the press and public. “The radical left, or whoever it may be, starts screaming about the Constitution, but [it] has nothing to do with the Constitution.”

Back in October, Musk declared at a Trump campaign event in Philadelphia that the “strong bias with respect to government information should be to make it available to the public. Let’s be as transparent as possible. Fully transparent.” He further insisted there was no need for FOIA. “All government data should be default public for maximum transparency.”

Yet the first month of Trump’s second term has proven that Musk’s commitment to transparency is as phony and self-serving as his commitment to free speech.