Adept White House legal maneuvering is shielding the new Department of Government Efficiency from Freedom of Information Act transparency regulations and sidestepping onerous federal staffing laws—providing maximum political and operational flexibility to President Donald Trump and Elon Musk, leader of the “DOGE” initiative.
Trump formally established his effort to streamline government via executive order Monday, within hours of assuming office. And by shifting the existing U.S. Digital Service from the Office of Management and Budget to the Executive Office of the President and reconstituting the agency as the U.S. DOGE Service, Trump ensured it would not be subject to the Freedom of Information Act, but rather, the Presidential Records Act. This latter law grants presidents enormous latitude to keep communications and information secret from Congress and the public.
The move was legal—not to mention strategically impressive—some lawyers with government experience have told The Dispatch, because the U.S. Digital Service was born of the executive branch, not created by congressional statute. The U.S. Digital Service was launched in 2016 under President Barack Obama to help modernize government information technology and improve the taxpayers’ experience with that tech.
Also impressive to those lawyers was declaring DOGE a “temporary organization” scheduled to sunset July 4, 2026, which allows it to hire individuals for any length of time and compensation Trump and Musk prefer. The Antideficiency Act generally prohibits the government and committees formed to advise federal officials from tapping individuals on an unpaid, volunteer basis. But housing DOGE in the Executive Office of the President and specifying its end-date allowed the administration to skirt those constraints, making it easier to enlist individuals from the business community who might be interested in participating but do not want to quit high-paying day jobs.
“Very good and clever lawyering on how this is set up,” Don McGahn, a Republican lawyer in Washington who served as White House counsel in the first Trump administration, told The Dispatch on Wednesday. “They clearly thought it through and did their homework.”
White House press officials had not responded to text messages requesting comment.
To lead DOGE, Trump after the November election appointed Musk, the 53-year-old billionaire CEO of Tesla, SpaceX, and X—and a major Trump campaign benefactor—and Vivek Ramaswamny, 39, who made a fortune in pharmaceuticals and sought the 2024 Republican presidential nomination. There was friction between the two wealthy businessmen and Ramaswamy departed the effort this week in preparation to run for Ohio governor in 2026. As late as last week, just days before the president’s inauguration, DOGE organizers were grappling with what legal and organizational structure the department should take, sources have told The Dispatch.
Under consideration was going the route of the political nonprofit, and standing up either a 501(c)3 or 501(c)4.
But there were concerns any such entity would subject DOGE to the Federal Advisory Committee Act. The 1972 statute requires outside advisory committees and commissions to make their communications and deliberations available to the public under the Freedom of Information Act, among other transparency requirements. That would present a dilemma for Musk and other DOGE officials: How might they hold discussions with members of Congress and the Trump administration—especially Trump himself—without those conversations becoming public and possibly infringing upon the president’s executive privilege?
DOGE organizers also worried about satisfying the somewhat arcane Antideficiency Act, originally passed in 1884, as criminal penalties for violators can include jail time.
The Antideficiency Act requires the federal government to pay fair market value for outside services, typically through competitive bidding. The statute additionally prohibits (in most instances) the government from obtaining outside services free of charge. Such sections would have limited Musk’s ability to enlist private-sector individuals uninterested in becoming fulltime government employees to participate in the effort. The law also would have limited Musk’s ability to use his deep pockets to fund the advisory committee’s activities and staff.
The decision to avoid these risks by setting up DOGE as a temporary executive branch agency did not discourage activist groups from filing lawsuits alleging that the Trump administration is nonetheless violating federal transparency and hiring laws.
As ABC News reported, the liberal group Citizens for Responsibility and Ethics in Washington went to court “on behalf of a coalition of teachers and veterans unions, challenges the ‘creation and secret operation of DOGE’ and asks the federal district court in Washington, D.C., to ‘[block] the operation of DOGE until it comes into compliance with the law.’” Also suing were a labor union representing federal employees, the environmental activist group Center for Biological Diversity, and the law firm National Security Counselors, which claims that DOGE is in violation of the Federal Advisory Committee Act.
Craig Holman, government affairs lobbyist for watchdog group Public Citizen, said the concern is both that Musk has incredible access to Trump and that he has managed to avoid falling under the ethics rules that most government officials who work with the president must abide by. “I find this very troubling,” Holman said. “Musk is going to have a great deal of influence over the administration and Congress itself. He’s in a position where he’s going to have more influence than a Cabinet official.”
Legal experts are not ruling out the prospect that some of the action taken against DOGE might bear fruit. But some believe they face an uphill climb, citing Trump’s move to house the department inside an agency created by the executive branch, subject to the Presidential Records Act versus the Freedom of Information Act—and the fact that DOGE is slated to disband after less than just 18 months.
“The clock will run out on DOGE well before litigation, including all appeals, can be concluded,” Bob Bauer, Obama’s White House counsel from 2009 to 2011 and now a professor at New York University School of Law, told The Dispatch. “Complicating these suits [is] the backstop claim that FACA’s limits on how a president gets advice are unconstitutional.”
Meanwhile, there is no mention of cost-cutting in the executive order Trump signed Monday to formalize the Department of Government Efficiency, signaling the president, and Musk, might be jettisoning one of the original goals of the effort, which was to slash government spending by as much as $2 trillion. Rather, DOGE now appears to be focused on modernizing information technology and infrastructure.
“This Executive Order establishes the Department of Government Efficiency to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity,” the order reads.
“The USDS Administrator shall commence a Software Modernization Initiative to improve the quality and efficiency of government-wide software, network infrastructure, and information technology (IT) systems,” the order continues. “Among other things, the USDS Administrator shall work with Agency Heads to promote inter-operability between agency networks and systems, ensure data integrity, and facilitate responsible data collection and synchronization.”
Indeed, the executive order makes no mention of “spending cuts” “waste, fraud and abuse” or other terms indicating cuts to government spending.
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