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The Trump administration may soon be forced to answer central questions about its Department of Government Efficiency and about major other actions by government agencies that are now being challenged in court, as the quick-moving legal proceedings to the next phase.
In multiple cases, President Donald Trump’s legal foes are making somewhat extraordinary requests for judges to order the government to turn over internal documents, explain its decision-making and even require depositions from administration officials.
Some judges have already signaled openness to such requests, remarking upon the lack of public clarity about who is behind the major decisions that have upended the federal government – and about how DOGE in particular is operating.
“The things that I’m hearing are concerning indeed and troubling indeed,” Judge Tanya Chutkan said during a hearing last week in a lawsuit brought by Democratic state attorneys general making broad constitutional claims against Elon Musk’s role in the administration.
“But I have to have a record, and I have to make findings of fact before I issue something,” Chutkan added.
While the administration’s foes have sometimes lost in their bids for immediate court intervention, getting more information about the administration’s actions could put them on better footing as their cases continue. It is nonetheless unusual for challengers to make the requests now – and for some judges to be proactively inviting more fact-finding at this early phase in the litigation – as discovery is often avoided in cases challenging agency action.
“One cost for a president and agency of doing things quickly even if it means breaking laws is that if courts don’t trust agencies, they will want to look behind the curtain rather than take agency claims at face value,” Matthew Lawrence, a former Justice Department attorney who now teaches administrative law at Emory Law, told CNN via email.
Judge John Bates, who is overseeing a lawsuit filed by federal employee unions over access granted to DOGE representatives at several agencies to sensitive government data, said in an order last week that he was considering ordering discovery because “this is an unusual case,” and because part of the dispute is whether the Trump officials have taken the actions they’re being accused of.
“There’s no way for the Court to decide that question – or the follow-up question of whether those policies were in accordance with law – without some evidence of defendants’ decisionmaking process,” Bates said. He’s ordered more briefing on what kinds of evidence the challengers should be entitled to and signaled he’d make a ruling by the end of the week.
Previously, Bates rejected the request by the plaintiffs for a temporary restraining order that would have restricted DOGE data access at the Department of Labor, the Consumer Financial Protection Bureau, and the Department Health and Human Services.
How Bates rules could help guide how other judges navigate the environment, including in similar DOGE data cases in Maryland and New York, where the discovery issue is also being set up.
The FBI agents who are suing over the Justice Department’s demands that the agency survey and identify the bureau employees who worked on January 6 Capitol probes have also sought discovery. The Justice Department must respond by Wednesday.
And in a case challenging Trump’s freeze on foreign aid, the judge signaled Saturday that live testimony and other discovery may be needed to settle disputes over whether the administration is following his court orders restoring some of the funding.
The Justice Department, which has been resisting the challengers’ push for discovery, did not respond to a CNN request for comment for this story. But the department lawyers have warned judges in court hearings that ordering discovery would significantly slow down the litigation, and court filings have even resisted the invitation to file an administrative record – a more limited type of factual record that is assembled internally at agency to explain why it decided to move forward with the challenged policy.
‘Uncertainty’ and ‘inconsistencies’
In the case before Bates, the unions are pointing to “uncertainty” about DOGE’s access to data “inconsistencies” in the court filings the administration has submitted so far, which include declarations from a handful DOGE representatives and other government officials.
They’re seeking answers from the administration about who is accessing the data systems, who authorized access at each agency and any software installed on the systems by DOGE. They also want internal documents, such as non-disclosure agreements and other employment-related agreements for DOGE employments and the guidelines and training they received on data cases. And the unions argue they’re entitled to depositions from government officials to ask about the procedures around the data, and about DOGE’s structure and operations writ large.
To buttress their demands, the unions are pointing to contradictions – even in the court declarations submitted by the Trump administration – in the basic assertions the administration has offered, like how many DOGE affiliates are at each agency, as well as how the Trump and administration has seemingly flip-flopped about who is in charge of the whole initiative.
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“Defendants have wielded that uncertainty as a tool to question the harms Plaintiffs are or will suffer from DOGE’s access to sensitive records,” the union argued.
“This is an emergent and concerning situation,” said Skye Perryman, the president of the legal advocacy group Democracy Forward, which is representing the unions. “Courts have a range of tools to deal with that situation. In some instances, courts grant emergency relief. In other instances, courts want to learn more.”
Similarly, the FBI agents suing the Justice Department want to know who designed a survey that FBI employees were required to complete about their involvement in the January 6 probes, and who – including at DOGE and at the White House – now has access to its results. They also want any internal documents and communications that would shed light on what the administration is intending to do with the list of employees involved in that investigation.
Norm Eisen, a former Obama White House ethics czar and the co-founder of the group State Democracy Defenders Action, which is involved in the FBI case and in other Trump challenges seeking more fact finding, said the “discovery questions are coming to the fore as judges themselves raise legitimate and penetrating inquiries about what the heck is going on here and whether it has been properly documented.”
“We will see,” Eisen said, “but if the government doesn’t produce those materials, that speaks volumes.”
CNN’s Devan Cole and Hannah Rabinowitz contributed to this report.