Judge Tanya Chutkan’s ruling that the Department of Government Efficiency is required to turn over records and answer questions about its modus operandi is another legal defeat for the world’s richest man, Elon Musk.

DOGE’s courtroom headwinds appear to be picking up even as Republicans double down on their support for the cost-cutting enterprise. This week a California Republican, Congressman Tom McClintock, declared, “In DOGE we trust.” Speaker Johnson explains that the DOGE “efforts … are very important for the American people.” 

Those efforts are still unfolding, but they have already yielded significant results. As of March 3, DOGE claimed savings of $105 billion — this number is contested — stemming from lease terminations, contract cancellations, and the firings of federal employees. It has effectively dismantled the Agency for International Development and appears behind deep cuts at the Department of Education.  

Courts, though, appear to be looking at Mr. Musk’s efforts with more gimlet eyes. This week another judge at the District of Columbia, Casey Cooper, ruled that DOGE is likely covered by the Freedom of Information Act. That suit was brought by Citizens for Responsibility and Ethics in Washington, which in 2023 persuaded the Colorado supreme court that President Trump was disqualified from the presidency under the 14th Amendment. The Supreme Court unanimously rejected the CREW’s 14th Amendment claim.

While the administration can appeal Judge Cooper’s ruling, he has ordered that the documents requested by CREW be preserved. That raises the possibility that if DOGE does not comply, contempt charges could follow. Judge Cooper determined that DOGE must be responsive to FOIA requests because it is endowed with “substantial authority independent of the President” and it wields “decision-making authority.” The Trump administration insists DOGE is merely advisory.

Judge Cooper, though, reasoned that DOGE’s influence “across the federal government and the dramatic cuts it has apparently made with no congressional input appear to be unprecedented.” He also reckoned that the “unusual secrecy” with which DOGE operates compels the release of internal documents. Judge Cooper held that DOGE’s pace of activity “requires the quick release of information about its structure and activities.”  

DOGE’s legal standing has long been a subject of speculation. It was created via executive order on the day Mr. Trump was sworn in and is technically a transformation of the United States Digital Service with a mandate to modernize “federal technology and software to maximize governmental efficiency and productivity.”

Mr. Musk is a “special government employee,” a position created by Congress in 1962 that can be either paid or unpaid. Statute mandates that special employees are allowed to work for no more than 130 days out of a 365-day period and “perform important, but limited, services to the government.” Mr. Musk has not been nominated by Mr. Trump nor has he been confirmed by the Senate as is required for all, as the Constitution puts it, “Officers of the United States.”

The Supreme Court has held that confirmation by the Senate is required for officials who hold “continuing” positions and who exercise “significant authority.” When Judge Aileen Cannon disqualified Special Counsel Jack Smith, she reasoned that the “Appointments Clause is a critical constitutional restriction stemming from the separation of powers.”

Judge Chutkan’s ruling on Wednesday is a win for 14 Democratic state attorneys general who sued Messrs. Trump and Musk as well as DOGE. The 14 allege that the initiative has harmed their states. Judge Chutkan gave DOGE three weeks to produce records that delineate the “parameters of DOGE’s and Musk’s authority.” Judge Chutkan clarified that her ruling “shall not apply to President Trump,” who is protected by presidential immunity and executive privilege.

Judge Chutkan has a long history with Mr. Trump. She presided over Mr. Smith’s prosecution of the 45th president for election interference, and ruled in favor of the special counsel on presidential immunity, a decision that was eventually reversed by the Supreme Court. She also handed out harsh sentences to January 6 rioters. She reasoned that Mr. Trump did not possess the “divine right of kings” to avoid prosecution.

DOGE’s time in federal court has not been entirely fruitless. Last week another district court judge, Colleen Kollar-Kotelly, rejected a request from the Alliance for Retired Americans and a host of other unions to block DOGE from accessing a payment system at the Department of the Treasury. She ruled that the plaintiffs failed to show that they would be irreparably harmed by that access.