A government office should not get the final word on whether the public can scrutinize it. Its description of its own authority deserves examination, especially when that description determines whether transparency law applies.
On October 13, the Supreme Court agreed to hear U.S. DOGE Service v. U.S. District Court, a dispute arising from efforts to obtain DOGE records. The Court’s docket confirms that it granted review. It has not decided that DOGE is exempt from the Freedom of Information Act, or ordered all its records released. [1]
The distinction matters. Before a court can decide what the public may see, it may need to establish what an organization actually does. This case asks how far courts can go to obtain that evidence when the organization operates within the Executive Office of the President.
Citizens for Responsibility and Ethics in Washington, known as CREW, has sought records about DOGE’s early operations during President Trump’s second term. As the Associated Press reported on October 13, this is the Supreme Court’s second intervention in that lawsuit. [2]
The administration describes the U.S. DOGE Service as a presidential advisory body. Its petition challenges discovery—the process of obtaining evidence during litigation—as too intrusive and inconsistent with separation-of-powers protections. The questions presented include whether courts can require such discovery to determine whether FOIA applies in the first place. [3]
CREW disputes that characterization. In its June 22 brief, it argues that the service exercised substantial independent authority and that narrowed discovery is necessary to resolve factual disagreements. Those are the opposing parties’ positions, not conclusions the Supreme Court has now endorsed. [4]
Our view is that courts need a workable path between unrestricted demands for presidential communications and unquestioning acceptance of an office’s account of itself.
The danger is circular reasoning. An office says it only advises, so it argues that disclosure requirements do not apply. A requester needs evidence to challenge that description. If obtaining the evidence is forbidden because the office says it only advises, the claim becomes effectively impossible to test.
That would be a poor foundation for accountability under any president.
There is a serious counterargument. Presidents need space to receive candid advice. Litigation should not become a device for obtaining every internal conversation merely by alleging that an adviser wielded influence. Discovery can impose burdens and expose sensitive deliberations before a court has settled whether a disclosure obligation exists.
Those concerns justify careful limits. They should not automatically eliminate factual inquiry.
A sensible approach would begin with the least intrusive evidence capable of answering the actual question. Courts should distinguish records showing who held decision-making authority from records revealing the substance of confidential advice. Formal delegations, organizational responsibilities and descriptions of approval procedures may help establish the former without opening every discussion of the latter.
This is a proposed approach, not a claim that every such record is available or legally discoverable in this case. The details matter. Any inquiry should be tailored, and the government should have an opportunity to identify specific confidentiality concerns.
But a meaningful process must allow the government’s description to be tested. Otherwise, an organizational label can do the work that evidence should do.
The broader lesson extends beyond DOGE. Imagine a future technology team that helps several agencies change their software, purchasing or data practices. The public should be able to understand where advice ends and operational authority begins. Who recommends a change? Who approves it? Who can execute it? Who can reverse it?
Those questions should have documented answers before a lawsuit starts.
Every new cross-agency initiative should publish a clear statement of its authority and maintain records of consequential decisions. That statement should identify the responsible offices and explain how people can seek records or challenge an action. Internal records should preserve the distinction between a recommendation and an authorized decision.
Such documentation would also protect competent public servants. Clear responsibility makes it harder to blame technical staff for policy choices they did not make, or to attribute agency decisions to advisers who lacked authority to make them.
The Supreme Court’s eventual ruling remains uncertain. We should judge it by whether it protects legitimate executive confidentiality while leaving a practical means to establish the facts.
Questioning power requires more than asking officials to explain themselves. It requires institutions capable of checking the answer. Building better government means making that checking possible from the beginning.