The lack of transparency surrounding the so-called Department of Government Efficiency is emerging as a target in the courts.
Elon Musk likes to talk about transparency. But a major story my colleagues published today shows how he baked secrecy into his Department of Government Efficiency from the start.
When devising a plan to overhaul the federal bureaucracy, Musk and his advisers deliberately designed an organizational structure that they thought would be outside the purview of federal public records laws, my colleagues wrote:
The operation would take over the U.S. Digital Service, which had been housed within the Office of Management and Budget, and would become a stand-alone entity in the executive office of the president. Mr. Musk would not be named the DOGE administrator, but rather an adviser to Mr. Trump in the White House.
White House advisers, unlike employees at other departments in the executive branch, are covered under executive privilege and typically do not have to disclose their emails or records immediately.
Now that secrecy is emerging as a key legal target in the courts.
Several lawsuits filed in recent weeks are pushing the administration to be more transparent about Musk’s and his initiative’s activities. They argue that the administration is violating the nation’s public records laws, and in some cases they are essentially asking judges to determine that the department is an agency that’s subject to those laws.
“These lawsuits are essentially saying you can’t have an agency that’s this powerful, that’s making these enormous decisions, that’s also entirely secret and cut off from the public,” said Jonathan Shaub, a law professor at the University of Kentucky who advised President Biden on matters of executive privilege.
That privilege is vast, and entities like the National Security Council have successfully drawn protections from it by arguing that their officials simply advise the president, who makes the final decisions. Some legal experts think that could be a harder case to make about the Department of Government Efficiency.
It could all turn on the question of how much power Musk really has — an issue that came up in a hearing in another lawsuit in Washington today — and what his department really is.