I want to elaborate on the shenanigans pertaining to purported DOGE Administrator Amy Gleason here. (Thanks to LOLGOP for helping me make a video to help explain it.)

For some time, I’ve been talking about the way that DOGE, because it is so bureaucratically incompetent and because it is led by someone easy to villainize, actually provides regime opponents with an auspicious tool we otherwise wouldn’t have had if Trump had implemented his Project 2025 agenda more slowly via Russ Vought’s expert work.

If done competently, existing Article II authority and SCOTUS’ enthusiasm to expand it may well have provided a way to do everything they’re currently doing with complete legal sanction. But they chose not to do it competently, which has provided some means to at least slow things down and possibly to get SCOTUS to overturn this.

To be sure, the damage Elon Musk is doing on the front end is catastrophic. Elon is destroying lives and competencies with his chainsaw.

But because of DOGE’s incompetence, it creates legal leverage that I’m fairly confident Vought could have managed to avoid.

Agent Elon Musk

It has to do with Elon’s agency.

There have been a number of stories on how Elon came to choose USDS as a vehicle for his project — whatever purpose that project has. NPR did an early story on the background of the US Digital Service. Wired did a story on what that takeover looked like from inside. Wired did a more comprehensive piece this week.

There were several important bureaucratic reasons to use USDS as a vehicle for DOGE. By repurposing an already-existing entity, Trump avoided disclosure requirements under Federal Advisory Committee Act; this served to defeat the already-written lawsuits filed the first week of the Administration. And because USDS was a White House agency, it might have protected DOGE from other kinds of transparency, notably FOIA. And keeping it in the White House hypothetically made DOGE an advisory entity firmly under Article II power, not subject to other legal challenges.

It was a brilliant bureaucratic theory.

And then Elon and Trump and Karoline Leavitt kept opening their big mouths, making boastful claims about Elon’s own agency — double entendre intended — in the destruction that undermined the entire bureaucratic logic. For example, Elon’s claim to have put USAID through the wood chipper makes virtually every court filing.

By claiming credit for destroying free-standing agencies, Elon has undermined the entire premise of using USDS as a vehicle, because it has boasted that Elon has more power than USDS is supposed to have. As a result, Trump had to attempt to retcon the reporting structure of DOGE, in an attempt to sustain the bureaucratic benefits of using USDS as a vehicle.

In recent weeks, the intersection of several different lawsuits and several different legal theories opened a significant chink in the entire bureaucratic game.

It has to do with Elon’s agency. If DOGE is an agency and Elon heads it, then many of the bureaucratic benefits arising from using USDS as a vehicle collapse. Plaintiffs will get visibility into DOGE. And they’re likely to make Appointments Clause complaints that SCOTUS is generally amenable to.

OMB accepts a FOIA

One early mistake DOGE made was to accept a FOIA from CREW and grant it expedited processing, only to try to renege on that stance weeks later.

[O]n January 24, 2025, CREW submitted an expedited FOIA request to OMB (“Second OMB Request”) “seeking records related to changes to the operations of the U.S. Digital Service, organizational charts, financial disclosures, and other information relevant to the newly-formed USDS.” Id. ¶ 90; Mot. for PI, Ex. C (copy of Second OMB Request). The second request similarly focused on the time period beginning November 6, 2024, but also requested some records dating back until January 2014. Id. On the same day, CREW contacted the OMB FOIA Requester Service Center to ask how to submit a FOIA request directly to USDS and was directed to submit that request through OMB, too. Mot. for PI, Ex. D at 1 n.1. Accordingly, CREW also submitted an expedited FOIA request directly to USDS (“USDS Request”), which, along with the just-listed information, sought “[a]ll communications between USDS personnel and personnel of any federal agency outside of the Executive Office of the President.” Compl. ¶ 90; Mot. for PI, Ex. D. On January 24, OMB acknowledged receipt of both requests. Id. ¶ 92.

[snip]

Although OMB initially agreed to process the USDS request and granted it expedited treatment, it has since done an about face. After CREW sued, the government suggested that OMB had inadvertently accepted the USDS request. See Opp’n at 8–9 n.2. It further indicated that USDS had been reorganized as a “free-standing component of EOP that reports to the White House Chief of Staff.” Id. “As a result,” the government posits, “USDS is not subject to FOIA.” Id. The government confirmed at oral argument on CREW’s motion that neither OMB nor USDS itself intend to process the USDS request on that ground. Rough Tr. 3:23–4:4.

Normally, the White House, but not OMB, is immune from FOIA. OMB is not immune because it is a separate agency. Because OMB accepted this FOIA it provided CREW a way, within the FOIA context, to argue that DOGE was an agency.

That fuckup is what led Judge Christopher Cooper to grant a limited expedited FOIA response to CREW on March 10.

The narrowed USDS request seeks, in each case from January 20, 2025, to the present: “all memoranda, directives, or policies regarding changes to the operations of USDS”; organizational charts for USDS; ethics pledges, waivers and financial disclosures of USDS personnel; “all communications with the office of the Administrator of the USDS regarding actual or potential changes to USDS operations”; and “all communications between USDS personnel and personnel of any federal agency outside of the Executive Office of the President regarding that agency’s staffing levels (including any effort to reduce staffing), treatment of probationary employees, contract and grant administration, access to agency information technology systems, or the authority of USDS in relation to that agency.”

In granting that limited response, Cooper noted that DOGE never disputed claims that Elon was exercising significant authority.

The Court recognizes that much, though by no means all, of the evidence supporting its preliminary conclusion that USDS is wielding substantial independent authority derives from media reports. Yet, the Court finds it meaningful that in its briefing and at oral argument, USDS has not contested any of the factual allegations suggesting its substantial independent authority. To be sure, USDS claims it declined to make this argument because CREW’s “motion fails for multiple independent reasons.”

That led DOGE to ask for reconsideration of the FOIA order, which CREW calls “a do-over,” attempting to make the arguments about agency that — Cooper noted explicitly — it had declined to make in its first response. Along with that motion, DOGE submitted a declaration from Amy Gleason on March 14 making claims about DOGE’s structure that directly conflict with claims, including sworn claims made by Gleason, made about DOGE elsewhere.

1. My name is Amy Gleason. The following is based on my personal knowledge or information provided to me in the course of performing my duties at the United States DOGE Service (USDS).

2. I currently serve as the Acting Administrator of USDS. I joined USDS on December 30, 2024.

3. I am a full-time, government employee at USDS.

4. In my role at USDS, I oversee all of USDS’s employees and detailees to USDS from other agencies. 5. I report to the White House Chief of Staff, Susie Wiles.

6. Elon Musk does not work at USDS. I do not report to him, and he does not report to me. To my knowledge, he is a Senior Advisor to the White House.

Now, the government strongly implies that it wants Judge Cooper to rule quickly on its motion for summary judgment so it can appeal right away. Maybe that will all happen.

But it doesn’t put Gleason’s materially conflict declarations back in the box.

Elon’s conflicts become an issue

Meanwhile, as soon as DOGE came after the Department of Labor, a bunch of labor unions sued under what would normally be a weak privacy challenge, but to which both their initial and amended filings included the concern that DOGE generally and Elon specifically could access data of interest to Elon’s business or his companies, including data about labor complaints targeting his businesses.

9. DOGE will also have access to Department of Labor records concerning investigations of Mr. Musk’s businesses, as well as records containing the sensitive trade secrets of his business competitors, which are held by the Department of Labor and Consumer Financial Protection Bureau. No other business owner on the planet has access to this kind of information on his competitors, and for good reason.

[snip]

30. Defendant U.S. DOGE Service (“USDS”) is a federal entity situated within the Executive Office of the President in Washington, D.C. Upon information and belief, its work is directed by Elon Musk, who is reportedly serving in the Trump-Vance Administration as a Special Government Employee (“SGE”). Mr. Musk is the wealthiest person in the world, with an estimated net worth of over $400 billion. Concurrent with his tenure in government, Mr. Musk has numerous large business concerns, many of which have substantial ties to the federal government and U.S. politics. They include SpaceX, a space technology company and extensive federal government contractor; Tesla Motors, an electric vehicle company; Neuralink, a neurotechnology startup seeking to embed computer hardware into the human brain; the Boring Company, a tunnel construction company; and X, formerly known as Twitter, a large social media platform.

[snip]

75. The Occupational Safety and Health Administration (“OSHA”) within the Department is responsible for enforcing safety standards at American companies. OSHA has investigated Mr. Musk’s space technology company, SpaceX, over multiple safety incidents, and has fined SpaceX in connection with one worker’s death and seven other serious safety incidents.33

76. OSHA has also investigated and issued fines to Tesla for unsafe working conditions in its factories. 34

77. OSHA also has open investigations into the Boring Company, and has issued it multiple fines for serious citations, according to OSHA’s website.35

78. On information and belief, the Department of Labor also currently has open investigations into one or more competitors of Mr. Musk’s companies.

79. Mr. Musk would ordinarily be unable to access non-public information regarding those investigations. See 18 U.S.C. § 1832(a) (Trade Secrets Act); 5 U.S.C. § 552(b)(4) (FOIA exemption for trade secrets); 5 U.S.C. § 552(b)(7) (FOIA exemption for records or information compiled for law enforcement purposes).

80. In light of the blanket instruction to provide DOGE employees with “anything they want,” Mr. Musk or his associates will be able to access that information simply by asking DOL employees for it.

[snip]

156. There is no public indication that Mr. Musk or DOGE personnel on leave from Mr. Musk’s corporate interests will be recused from access to any of this data, which includes “hundreds of complaints about [Mr. Musk’s] electric car company Tesla.”91

The judge in this case, John Bates, twice rejected their bid for a Temporary Restraining Order on standing grounds. But in plaintiffs’ second bid for one, they argued that DOGE members were prohibited from accessing agency records at Department of Labor, HHS, and CFPB under terms permitted by the Privacy Act because they didn’t work for an agency.

With respect to inter-agency personnel agreements, Congress provided legal authority for exactly that purpose through the Economy Act of 1932, which regulates whether and when federal employees can be temporarily detailed to new agencies. The Economy Act provides that, under certain circumstances, “[t]he head of an agency or major organizational unit within an agency may place an order with a major organizational unit within the same agency or another agency for goods or services[.]” 31 U.S.C. § 1535(a) (emphasis added). For purposes of Title 15 of the U.S. Code, “‘agency’ means a department, agency, or instrumentality of the United States Government.” Id. § 101. Because DOGE is not an “agency or a major organizational unit within an agency” for purposes of the Economy Act, it cannot lawfully enter into agreements to detail its personnel to lawfully established federal agencies.

Bates still denied their TRO. But in his second order rejecting their privacy claims, he relied on defendants’ representations about whether they were an agency or not (they argued they were an instrumentality). They only successfully defeated a TRO request because, Bates opined, they were an agency.

Under those definitions, USDS—which is located with the Executive Office of the President, see First DOGE E.O. § 3(a)—appears to be an agency. In each context mentioned above, an entity within the Executive Office of the President is an agency if it “wield[s] substantial authority independently of the President.” Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 266 F. Supp. 3d 297, 315 (D.D.C. 2017). If instead it serves solely “to advise and assist the President,” it is not an agency. Alexander v. FBI, 456 F. App’x 1, 1–2 (D.C. Cir. 2011) (quoting Kissinger v. Reporters Comm., 445 U.S. 136, 156 (1980)). As plaintiffs themselves insist, USDS appears to do much more than advise and assist the President. USDS’s mission, per the Executive Order, is to “implement” the President’s modernization agenda, not simply to help him form it. See First DOGE E.O. § 1. While the record isn’t crystal clear as to these allegations, it is apparent that USDS is coordinating teams across multiple agencies with the goal of reworking and reconfiguring agency data, technology, and spending. See supra n.3 (describing the duties of the DOGE team members at DOL, HHS, and CFPB; Exec. Order No. 14,210, 90 Fed. Reg. 9669 (Feb. 11, 2025) § 3 (“Second DOGE E.O.”) (ordering that agency heads collaborate with DOGE teams on new appointment hires and prohibiting agencies from “fill[ing] any vacancies for career appointments that the DOGE Team Lead assesses should not be filled”). That is not the stuff of mere advice and assistance. See, e.g., Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995).

Curiously, defendants do not make this argument. They shy away from other, similar statutory definitions of agencies, notwithstanding USDS’s strong claim to agency status under them. This appears to come from a desire to escape the obligations that accompany agencyhood— subjection to FOIA, the Privacy Act, the APA, and the like—while reaping only its benefits. Indeed, at the renewed TRO hearing, defendants’ counsel insisted that USDS is not an agency under any of those three statutes (not to mention two Executive Orders scaffolding USDS, see First DOGE E.O. § 2(a); Second DOGE E.O. § 2(a)), but is under the Economy Act. Defendants insist that the inclusion of “instrumentalities” in the Economy Act definition renders “agency” there broader than its sibling definitions of “agency.” And so USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient.

Plaintiffs leaned into this language when they requested discovery.

Plaintiffs argued that DOGE is not an “agency” for the purposes of the Economy Act, that it exists purely to advise the President and does not possess and organic statutory authority that would permit it to enter into Economy Act agreements with Defendant agencies. ECF No. 29-1 at 34-37. Defendants argue that DOGE is not an “agency,” but does constitute an “instrumentality” that may permissibly enter into Economy Act agreements. See Transcript of TRO Motion Hearing, ECF No. 41 at 32. This Court concluded that, based on the information before the Court about DOGE’s functional activities, DOGE most resembles an agency, but expressly noted the limitations of the current record and briefing to date.

[snip]

The facts about how DOGE is structured are arguably become less clear with time. On February 17, 2025, the White House stated for the first time that Elon Musk is not an employee of DOGE nor is he the U.S. DOGE Service Administrator.

[snip]

Discovery about the functional structure of DOGE–including who has decision-making authority over it–is directly relevant to being able to evaluate its status as an agency or instrumentality to whom Plaintiffs’ sensitive data may be disclosed without causing injury.

That’s part of what led Judge Bates to grant discovery. Another was that defendants’ own claims conflicted with the record.

Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given.

[snip]

It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.

And that’s what led DOGE to take a rash step: To make the woman they had just declared to be their DOGE Administrator an HHS employee, effective March 4, even while they disclaiming being an agency in the CREW suit, and asking Amy Gleason to submit a sworn declaration claiming to be a full time DOGE employee ten days later.

Amy Gleason is on the hook for sworn claims to be an employee of HHS and, at the same time, to be DOGE’s full-time Administrator.

Elon skipped his appointment with Congress

All that this shell game over agency status has gotten plaintiffs so far — if the government can’t reverse these decisions on appeal — is some visibility about what DOGE really is, including visibility about what it’s doing with union members’ data.

But it’s all boxing the government in on what does matter: The at-least three different challenges to DOGE that argue Elon’s appointment violates the Appointments Clause, something that could — and did yesterday, in the Does 1-26 v. Elon lawsuit — require reversing all the actions the government has taken under Elon’s watch.

Does 1-26

New Mexico

Japanse American Citizens

It’s that lawsuit, Does 1-26 v Musk, in which Judge Theodore Chuang made big news yesterday by enjoining Elon and requiring the government to start reversing the effects of what DOGE did. But the lawsuit, and so his order, only apply to Elon and DOGE. Plus, to the extent that Elon can get permission from Marco Rubio or Pete Marocco to do the very same things they’ve already done, they have two weeks under the order to do that.

It’s an important ruling, but the most likely effect it may have, in practice, is to reveal how much DOGE broke when it was dismantling USAID, which may soon become evident to people getting their digital access restored.

In making his ruling, Chuang relied exclusively on the public record, all the instances of Trump hailing Elon for his DOGE work and Elon’s own claims about woodchippers.

In another of these cases, though, one by Democratic Attorneys General (captioned as New Mexico), Judge Tanya Chutkan granted plaintiffs expedited discovery on March 12, meaning barring a successful appeal, the AGs will get more visibility on DOGE by April 2 or thereabouts.

Still, like the Does 1-26 case, the AGs lawsuit only targets Elon (and Trump). It won’t have the ability of rolling back everything DOGE did. It might make DOGE itself illegal barring Congressional action, but it cannot reverse everything.

The third suit, which also names the agencies themselves, might do that.

Presumption of irregularity

None of that is going to happen quickly.

But what is happening quickly is that the conflicting claims before different judges are making it clear that nothing this Administration says can be trusted.

CREW

[docket]

Judge Christopher Cooper

This is a simple FOIA lawsuit.

AFL-CIO

[docket]

Judge John Bates

This is primarily a privacy lawsuit, strengthen by unions’ need to be able to make confidential reports to Department of Labor.

Does 1-26 v. Musk

[docket]

Judge Theodore Chuang

This Appointments Clause challenge only sues Musk, not other government agencies.

New Mexico v. Musk

[docket]

Judge Tanya Chutkan

This Appointments Clause challenge sues Musk and Trump, but not agencies.

Japanese American Citizens

[docket]

Judge Tanya Chutkan

This is the most advanced Appointments Clause challenge, but may be consolidated with New Mexico. It not only sues Musk, but also a long list of agencies.