The structure and authority of the Ministry of Government Efficiency (DOGE) has become a central mystery in the barrage of lawsuits that seek to hamper its operations.
After claiming Elon Musk is not the group's official leader, the White House on Tuesday cleared up the confusion over Doge's leadership and named Amy Gleason the manager of the cost-cutting panel.
But how exactly is Musk involved? And is Doge an agency?
These unresolved questions have been frontline and centered in several of the roughly 20 cases challenging Doge's operation during this week's string of court hearings.
The balance is whether the group can enact ambitious plans without legislative action, access a sensitive government system, and avoid open records requests.
Elon Musk's involvement
There have been an increasing number of questions about the role of masks since the administration filed a court application indicating that Tesla's CEO is not an employee of Doge.
“They're working hard to understand,” said John Pericero, director of government ethics at the Markcla applied ethics Center at Santa Clara University.
Pericero suggested that the confusion surrounding the role of masks could potentially skirt typical ethical rules, such as filing financial disclosures and selling from business interests that result in disputes.
The White House said earlier this month that the tech billionaire is planning to file disclosures, but the New York Times said it would not be public.
“It's like an elusive object that no one can hold back because Trump is making Musk do anything he wants,” added Pericero.
The confusion over mask authority produced a tiff with Trump's own Cabinet Chief this week when last week claimed that federal employees who failed government-wide emails asking what they did would be fired.
However, some agencies instructed staff not to respond to emails, and the White House later appeared to walk through the threat of Musk and view it as Cabinet Secretary.
The judge burned government lawyers over Musk's involvement in Doge.
Tensions came to mind during Monday's hearing when US District Judge Colleen Coller Coterry sued Justice Department attorney Brad Humphries.
“What is his role? Is he a kind of another advisor? Is he the president's chief executive? What is he?” asked former President Clinton appointor, Coller Cotery.
“We have no information other than a close advisor to the president,” Humphries replied.
When Kollar-Kotelly moved to ask who the Doge admin was, Humphreys replied, “I don't know.”
“Okay. If you know anything at the table, everyone will talk over there,” the annoyed judge told other government lawyers in her court.
There was no answer.
The next day, the White House announced Gleason as the official head of Doge. Gleason, who worked for US digital services in Trump's first administration, rejoined his office last month.
“Super Cabinet Member” or White House Advisor?
The administration argues that Musk is “a senior adviser to the president who has no actual or formal authority to make government decisions himself. Rather, he can only advise the president and pass on the president's orders.”
However, several lawsuits argue that Musk should consider independent powers as “primary officers,” and that it should pose the need for a Senate confirmation under the provisions of the constitutional appointments.
Norm Eisen, the plaintiff's lawyer in such a case, called Musk a “super cabinet member” during a hearing Friday.
“He's beyond the power of the members of the cabinet. He's reached the entire government and has a destructive ball in our system. It's clearly an instance of the principal,” Eisen said.
Eisen previously served as a Democrat attorney during Trump's first blast each and now leads the State Democracy Advocates Fund, which has filed multiple lawsuits against the new administration.
Later in the hearing, US District Judge Theodore Chuan called it “very suspicious” that the government could not create a standard form establishing mask appointments.
Chuan, former President Obama's appointee, said:
Justice Department attorney Joshua Gardner said some agencies were not obligated to direct Musk's government-wide email to employees to return five outcomes from last week.
“It seems contradictory to say that if Musk has all of this authority, all of these agents aren't going to do this,” Gardner said.
Is Doge an agency? That depends, DOJ says
The group's structure has been a source of confusion since Trump first announced Musk would co-chair the group in November.
Trump initially said Doge would “provide advice and guidance from outside the government.” However, on his first day in office, he created Doge from existing US digital services and renamed the office through an executive order.
The recent ruling hinted that US District Judge John Bates, appointing President George W. Bush, was trying to hand over legitimate powers without exposing the administration to the transparency requirements agencies that it normally faces.
The judge summed the government's position as “Goldilock organizations: convenient institutions, not agents when it is burdensome.”
“I think it's questionable that the administration tried to dance,” John Lewis, assistant legal director at a policy think tank that manages for impact, told Hill. “So far, it seems they want to have it in both ways.”
The administration argues that the position can be maintained because federal law defines “agents” differently. So, although Doge is not an agency subject to the Freedom of Information Act (FOIA), the administration argues, Doge is one of the economic laws.
The latter provides a pathway for the administration to fund the group's operations and provide employee details among federal officials. It has also become important in supporting the government as it seeks to fend off a number of lawsuits accusing Doge employees of inappropriate access to sensitive institutional data in violation of privacy laws.
Meanwhile, several groups are trying to convince judges that Doge must respond to a record request under the FOIA. The hearing in one case is set for Friday.
The Justice Department reiterated this week that Doge was “not covered by FOIA,” and that it was “not covered by FOIA” because it “has become an independent element” of the president's executive office that “reports to the White House Chiefs of Staff.”
Lewis warned the administration that “we really can't have that in both ways.” He pointed to a recent court ruling, finding that Doge appears to constitute an institution under economic law.
The ruling gave DOGE staff access to sensitive data from the Ministry of Labor, the Consumer Financial Protection Bureau (CFPB), and the Ministry of Health and Human Services.
However, Lewis stated: “The reason the courts are engaged is actually very problematic for Doge and suggests that if adopted more widely, Doge should be covered by FOIA and other laws that apply to the institution.”
