President-elect Donald Trump is seen listening to Elon Musk as they attend to observe the launch of SpaceX’s massive rocket, Starship, for a test flight from Starbase in Boca Chica, Texas, on November 19, 2024 (Brandon Bell/Pool via AP, File).
The Circuit Court of Appeals in Washington, D.C., has lifted a previous block, allowing an investigation into the Department of Government Efficiency (DOGE) to proceed. This decision permits a government watchdog organization to engage in “limited discovery,” which involves obtaining records that detail DOGE’s “organizational role, authorities, and operational scope” in an ongoing lawsuit against a related agency.
On Wednesday, the appeals court issued a per curiam order, granting the Citizens for Responsibility and Ethics in Washington (CREW) the ability to continue its discovery efforts in a federal lawsuit filed earlier this year against DOGE and Elon Musk. The court dismissed a request for a writ of mandamus submitted by the Trump administration on April 18, which sought to stop a lower court’s order that allowed for quick discovery in the CREW case, and to impose an emergency stay while awaiting a decision.
The stay wound up being granted, but was lifted Wednesday by U.S. Circuit Judges Karen Henderson, a George H.W. Bush appointee; Robert L. Wilkins, a Barack Obama appointee; and J. Michelle Childs, a Joe Biden appointee, in their per curiam order.
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The Trump administration’s argument that “the district court’s order permitting narrow discovery impermissibly intrudes upon the President’s constitutional prerogatives” came too late, the judges found.
“As an initial matter, the government forfeited its primary objection to the district court’s order under [case law] by failing to raise that argument below,” the order says. “At no point during the summary judgment briefing, or in opposing CREW’s discovery motion, did the government argue that the requested discovery posed a separation-of-powers issue or risked intruding into the core functions of the presidency.”
The underlying lawsuit from CREW is an effort to enforce Freedom of Information Act (FOIA) requests against the Trump administration’s intra-governmental fraud-and-waste-focused organization. DOGE, in turn, has maintained “it is not an agency subject to FOIA.” The lower court disagreed and entered an injunction requiring expedited processing of CREW’s FOIA requests against DOGE. The plaintiffs then moved for summary judgment on the lawsuit and, seeking a quick bit of finality, moved for expedited discovery.
U.S. District Judge Christopher Cooper, a Barack Obama appointee, largely gave CREW what it wanted by including a request to make U.S. DOGE Service Administrator Amy Gleason sit for a deposition.
The judges on Wednesday listed several reasons for denying the government the “extraordinary remedy” of a writ of mandamus, which is an attempt to have one court force another entity within the government to do something, or to force itself to correct a mistake.
“On the merits, the government has also not shown that it has no other adequate means of relief,” the order says.
“It does not provide any specific details as to why accessing its own records or submitting to two depositions would pose an unbearable burden,” the judges later add, noting that the CREW request is a “far cry” from a “sweeping discovery request.”
In addition, the order says, the government failed to assert “a clear and indisputable right.”
