SCOTUS places judge's discovery order under microscope after Trump DOJ claims 'intrusive' command can't touch 'presidential advisors'

After the Trump administration asked the U.S. Supreme Court for another “intervention,” the justices agreed to review a case against the United States DOGE Service (USDS), which may insulate “presidential advisors” from a judge’s discovery order.

The high court’s orders list on Tuesday featured U.S. DOGE Service v. U.S. District Court for the District of Columbia at the top of its certiorari granted section.

U.S. Solicitor General D. John Sauer, who is President Donald Trump’s former personal attorney, in a March petition blasted U.S. District Judge Christopher “Casey” Cooper and the U.S. Court of Appeals for the District of Columbia Circuit for allowing “wide-ranging and intrusive discovery” into “a body within the Executive Office of the President tasked with advising the President,” namely Elon Musk’s Department of Government Efficiency.

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Cooper, a Barack Obama appointee presiding over the Kennedy Center case, sided with Citizens for Responsibility and Ethics in Washington (CREW) and permitted expedited discovery, while rejecting the argument that DOGE “is not an agency subject to” the Freedom of Information Act (FOIA).

In its pitch to the justices, the DOJ noted it previously went to the Supreme Court, won a stay and a “limited narrowing of the discovery,” but said the D.C. Circuit has only “continued to approve intrusive discovery against a presidential advisory body without adequate consideration for the separation of powers, the FOIA statute, and this Court’s previous order.”

The government posed two questions for the justices to answer, relying on “critical separation of powers principles” that the Supreme Court “articulated” in support of then-Vice President Dick Cheney in 2004:

1. Whether the court of appeals’ order departed from this Court’s instructions and the separation-of-powers principles that this Court articulated in Cheney v. United States District Court, 542 U.S. 367 (2004).

2. Whether a court may order broad discovery against an Executive Office advisory body—potentially providing much information sought on the merits of a plaintiff’s FOIA claims—to determine whether FOIA’s disclosure requirements apply in the first place.

The Trump administration argued that an “advisory body’s most sensitive workings” are off-limits, and Cooper’s order is what deserves scrutiny.

“The Court could either grant plenary review of both the separation-of-powers issues concerning discovery into part of the Executive Office of the President and the statutory question of how to tell whether a body counts as an ‘agency’ for FOIA purposes,” the DOJ said. “Or the Court could summarily reverse on the separation-of-powers issue alone because the order below so seriously departs from Cheney’s principles.”

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