Can the Supreme Court examine DOGE without exposing presidential advice?

CREW says DOGE is a federal agency subject to the law. Its remaining requests seek information about DOGE’s structure, possible directives to cancel contracts and fire workers, and examples it says demonstrate independent authority. That fact-finding would help a court decide what DOGE is for FOIA purposes; it is not the same as ordering all of the requested material released to the public.

That distinction matters. The public interest is strongest in records that could illuminate who had authority to shape federal operations and how that authority was exercised. If a government body can affect contracts or workers, its role cannot be evaluated fairly on its label alone. CREW has warned that letting consequential entities avoid scrutiny simply by being placed in the president’s office could create a route around public-records oversight. Courthouse News Service has described the dispute.

Confidential advice deserves protection, not a blanket shield

The administration’s concern is serious: presidential advisers need room to offer candid advice, and courts should not turn that process into open-ended litigation. Justice Department attorneys argued that “Subjecting advisory bodies to intrusive discovery triggers the very concerns that Congress sought to avoid by excluding presidential advisory bodies from FOIA’s reach,” as PBS News reported in an AP wire story.

The Supreme Court has already recognized the need for restraint. On June 6, 2025, it set aside the earlier discovery order and sent the case back to the D.C. Circuit, directing it to narrow requests that could expose the substance of DOGE recommendations within the executive branch and whether officials followed them. The Court’s filing reflects a proper concern: inquiry into confidential advice must be restrained and carefully targeted.

On remand, CREW withdrew requests concerning recommendations, and the D.C. Circuit allowed its remaining discovery requests to proceed. The administration then returned to the Supreme Court to challenge them. The choice is not between unlimited access to private deliberations and no scrutiny at all. Courts can protect the content of advice while permitting focused questions about an office’s structure and whether it exercised authority independently.

The Court should preserve a path to fact-finding

The administration argues that even the remaining discovery risks intrusion and burdensome litigation. That position deserves consideration, but confidentiality cannot settle the threshold question by itself. If courts cannot examine an entity’s structure or role before deciding whether it is an agency under FOIA, the claimed exemption risks becoming self-validating: the government’s description would block the very inquiry needed to test it.

We urge the Court to uphold narrowly tailored fact-finding into DOGE’s structure and exercise of authority, while keeping discovery into the substance of internal recommendations off limits. That is a workable line between executive confidentiality and the public’s interest in understanding how federal power is organized and used.

The justices have agreed to review both the scope of the lower court’s discovery order and how courts may gather evidence when an executive-office body’s FOIA status is disputed. Their ruling will not answer every question about DOGE’s work. It will help determine whether the public can seek evidence about the operation of government before a court decides whether that work falls under a law meant to open agency records to scrutiny.