Amicus Curiae Brief — U.S. Doge Service, et al., Petitioners v. Citizens for Responsibility and Ethics in Washington

No. 24A1122

In the Supreme Court of the United States

___________________________________

In re U.S. DOGE Service, et al.,

___________________________________

BRIEF OF GOVERNMENT TRANSPARENCY SCHOLARS IN

OPPOSITION TO APPLICATION TO STAY THE ORDERS OF THE

U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PENDING CERTIORARI OR MANDAMUS AND REQUEST FOR

IMMEDIATE ADMINISTRATIVE STAY

___________________________________

Bruce V. Spiva

Counsel of Record

Daniel S. Lenz

Katherine Hamilton

Kunal Dixit

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

Tel: (202) 736-2200

Fax: (202) 736-2222

bspiva@campaignlegalcenter.org

dlenz@campaignlegalcenter.org

khamilton@campaignlegalcenter.org

kdixit@campaignlegalcenter.org

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii

STATEMENT OF INTEREST ...................................................................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 3

ARGUMENT .................................................................................................................. 4

I.

The Government’s formalistic position is contrary to the text and purpose

of the Freedom of Information Act and would permit the executive branch

to create exemptions from FOIA at will. ...................................................... 4

A. The text, history, and purpose of FOIA demonstrate that Congress did not

envision unilateral, residential authority to exempt certain entities. ........ 4

B. The Government’s argument, if accepted, would fundamentally

undermine FOIA. ........................................................................................... 9

C. The Government’s position would upend the separation of powers. ......... 13

II.

There is no adequate substitute for the transparency and accountability

mandated by FOIA. ..................................................................................... 15

III.

The Government’s position, if accepted, would further enable shell games

to avoid transparency laws.......................................................................... 20

IV.

The Government’s Reliance on Cheney is misplaced. ................................ 23

CONCLUSION............................................................................................................. 25

ii

TABLE OF AUTHORITIES

Cases

America First Legal Foundation v. United States Department of Agriculture,

126 F.4th 691 (D.C. Cir. 2025) ............................................................................... 24

Armstong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996) ............ 10

Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) ..................................................... 16

Associated Press v. Budowich, No. 1:25-cv-00532-TNM, 2025 WL 1039572

(D.D.C. Apr. 8, 2025) .............................................................................................. 20

Carney v. U.S. Department of Justice, 19 F.3d 807 (2d Cir. 1994) ............................ 12

Cheney v. United States District Court for the District of Columbia,

542 U.S. 367 (2004) .................................................................... 3, 14, 20, 23, 24, 25

Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995) ...................................................... 10

CREW v. DHS, 532 F.3d 860 (D.C. Cir. 2008) ............................................................ 23

Department of Air Force v. Rose, 425 U.S. 352 (1976) ................................................ 13

Electronic Privacy Information Center v. Internal Revenue Service,

261 F. Supp. 3d 1 (D.D.C. 2017), aff'd, 910 F.3d 1232 (D.C. Cir. 2018) ................. 6

Judicial Watch, Inc. v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir. 2013) ............... 11

Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) . 6, 14

Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) ........................................................... 11

National Archives & Records Administration v. Favish, 541 U.S. 157 (2004) .......... 11

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) .................................... 5, 12

Porter v. United States Department of Justice, 717 F.2d 787 (3d Cir. 1983) ............. 13

Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976) .......................................................... 10

Rojas v. Federal Aviation Administration, 989 F.3d 666 (9th Cir. 2021) .................... 5

Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980) .................................. 10

Schaffer v. Kissinger, 505 F.2d 389 (D.C. Cir. 1974) .................................................. 13

Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) ........................................ 7, 10, 11, 13

iii

Trump v. Hawaii, 585 U.S. 667 (2018) ....................................................................... 15

Trump v. Mazars USA, LLP, 591 U.S. 848 (2020) ..................................................... 17

United States v. Nixon, 418 U.S. 683 (1974) ............................................................... 25

Washington Post Co. v. United States Department of State,

840 F.2d 26 (D.C. Cir. 1988) .................................................................................. 14

Watkins v. United States, 354 U.S. 178 (1957) ........................................................... 17

Statutes

5 U.S.C. § 552 ................................................................................................................. 1

5 U.S.C. § 552(a)(8)(A) ................................................................................................. 14

5 U.S.C. § 552(b)(5) ...................................................................................................... 24

5 U.S.C. § 1001(2)(A) ................................................................................................... 21

44 U.S.C. § 2203(f) ....................................................................................................... 16

44 U.S.C. § 2905(a) ...................................................................................................... 16

44 U.S.C. § 3101 ........................................................................................................... 17

44 U.S.C. § 3106 ........................................................................................................... 17

28 C.F.R. § 50.10 (2022)............................................................................................... 19

Other Authorities

Alan Feuer, Judge Orders F.B.I. to Disclose Some Materials in Trump Classified

Documents Case, N.Y. Times (Feb. 10, 2025), https://www.nytimes.com/2025/02

/10/us/politics/trump-classified-documents.html .................................................. 22

Alexandra Ulmer, Marisa Taylor, Jeffrey Dastin, and Alexandra Alper, Exclusive:

Musk’s DOGE Using AI to Snoop on U.S. Federal Workers, Sources Say, Reuters

(Apr. 8, 2025), https://www.reuters.com/technology/artificial-intelligence/musksdoge-using-ai-snoop-us-federal-workers-sources-say-2025-04-08. ....................... 22

Charlie Savage, Additional Documents Found at Biden’s Wilmington Home, White

House Says, N.Y. Times (Jan. 14, 2023), https://www.nytimes.com/2023/01/14/us/

biden-classified-documents-delaware.html ........................................................... 22

Compl., Am. Fed. of Gov’t Empl., AFL-CIO v. Trump, No. 3:25-cv-03698

(N.D. Cal. Apr. 28, 2025), ECF No. 1 ..................................................................... 12

iv

Compl., Japanese American Citizens League v. Musk, No 1:25-cv-00643

(D.D.C. Mar. 5, 2025), ECF No. 1 .......................................................................... 12

Compl., New Mexico v. Musk, No. 1:25-cv-00429

(D.D.C. Feb. 13, 2025), ECF No. 2 ......................................................................... 12

Congressional Oversight of the White House, 45 Op. O.L.C. __ (Jan. 8, 2021) .......... 18

David A. Fahrenthold, Two Watchdogs Were Rebuffed from Joining Trump’s CostCutting Effort, N.Y. Times (Jan. 16, 2025), https://www.nytimes.com/2025/01/

16/us/doge-trump-watchdogs.html?searchResultPosition=2. ............................... 21

David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257 (2010) ................................. 4, 6, 9

Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) ............... 8

Employment Act of 1946, Pub. L. No. 79, 60 Stat. 23 .................................................. 7

Exec. Order No. 12291, 46 Fed. Reg. 13193 (Feb. 17, 1981) ........................................ 8

Exec. Order No. 14036, 86 Fed. Reg. 36987 (July 9, 2021) .......................................... 7

Exec. Order No. 14052, 86 Fed. Reg. 64335 (Nov. 15, 2021) ........................................ 8

Exec. Order No. 8248, 4 Fed. Reg. 3864 (Sept. 8, 1939) ........................................... 6, 8

Exec. Order No. 8441, 90 Fed. Reg. 8441 (Jan. 20, 2025) .................................... 12, 21

H.R. Conf. Rep. No. 93–1380 (1974).............................................................................. 6

H.R. Rep. No. 89-1497 (1966) ........................................................................................ 5

Heidi Kitrosser, Like “Nobody Has Ever Seen Before”: Precedent and Privilege in the

Trump Era, 95 Chi.-Kent L. Rev. 519 (2021) ........................................................ 18

Heidi Kitrosser, National Security and the Article II Shell Game,

26 Const. Comment. 483 (2010) ............................................................................. 20

Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited,

92 Iowa L.R. 489 (2007)............................................................................................ 5

Heidi Kitrosser, The Shadow of Executive Privilege, 15 Forum 547 (2017) .............. 19

Hillel Italie and Seung Min Kim, Deputy attorney general who defended Trump in

hush money trial is named acting librarian of Congress, Associated Press (May

12, 2025), https://apnews.com/article/trump-library-congress-todd-blanche-carlahayden-cc2154fa8644a5c29d196e505e4faa51. ...................................................... 16

v

Jeffrey Goldberg, The Trump Administration Accidentally Texted Me Its War Plans,

Atlantic (Mar. 24, 2025), https://www.theatlantic.com/politics/archive/2025

/03/trump-administration-accidentally-texted-me-its-war-plans/682151 ............ 22

Jenny-Brooke Condon, Illegal Secrets, 91 Wash. Univ. L.R. 1099 (2014) ................... 5

Jonathan David Shaub, The Executive’s Privilege, 70 Duke L.J. 1 (2020) ................ 18

Jonathan David Shaub, White House Inspection, 103 Wash. Univ. L. Rev. __

(forthcoming 2026),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5152566. ........................... 17

Letter from Pat A. Cipollone, Counsel for President Donald Trump, to Members of

Congress (Oct. 8, 2019), https://perma.cc/6X43-28FF ........................................... 18

Mandamus Petition Response, In re U.S. DOGE Service (No. 25-5130)

(D.C. Cir. Apr. 25, 2025) ......................................................................................... 23

Margaret B. Kwoka, FOIA, Inc., 65 Duke L.J. 1361 (2016) ......................................... 4

Margaret Kwoka & Bridget DuPey, Targeted Transparency as Regulation,

48 F.S.U. L. Rev, 385 (2021) .................................................................................. 22

Mark Fenster, The Transparency Fix: Advocating Legal Rights and Their

Alternatives in the Pursuit of a Visible State, 73 U. Pitt. L. Rev. 443 (2012) ........ 4

Memorandum from Attorney General Pam Bondi for All Department Employees,

Updated Policy Regarding Obtaining Information From, or Records of, Members

of the News Media (Apr. 25, 2025), https://perma.cc/PFG9-GYXM ..................... 19

Memorandum in Support of Motion to Dismiss, Public Citizen v. Trump

(1:25-cv-00164) (D.D.C. Apr. 11, 2025), ECF No. 33-1 .......................................... 21

Mike Karpman, The FOIA Improvement Act of 2016: A New Era of Government

Openness?, Media Freedom & Info. Access Clinic, Yale L.S. (Nov. 14, 2017),

https://law.yale.edu/mfia/case-disclosed/foia-improvement-act-2016-new-eragovernment-openness#. .......................................................................................... 14

Mitchel A. Sollenberger & Mark J. Rozell, The President’s Czars: Undermining

Congress and the Constitution (2012) ...................................................................... 8

National Environmental Policy Act of 1969, Pub. L. No. 91, 83 Stat. 852 .................. 7

National Science and Technology Policy, Organization, and Priorities Act of 1976,

Pub. L. No. 94, 90 Stat. 459 ..................................................................................... 7

vi

National Security Act of 1947, Pub. L. No. 80, 61 Stat. 495 ........................................ 7

Reorganization Act of 1939, Pub. L. No. 76, 53 Stat. 561 ............................................ 6

Trade Expansion Act of 1962, Pub. L. No. 87, 76 Stat. 872 ... Statement by Presidentelect Trump Announcing That Elon Musk and Vivek Ramaswamy Will Lead the

Department of Government Efficiency (Nov. 12, 2024), https://perma.cc/6YHF37UN ......................................................................................................................... 7

vii

STATEMENT OF INTEREST

Amici 1 are professors of law across the country whose research, teaching, and

writing focus on information and transparency law, including media law,

congressional oversight, government secrecy, executive privilege, government

accountability, the First Amendment, freedom of speech and association, and

separation powers, among many other topics. Amici have an interest in the outcome

of this case and the important issues facing the Court, as well as the potential effects

of any decision on the interpretation and enforcement of the Freedom of Information

Act, 5 U.S.C. § 552 and the law of government information and transparency, as well

as the Constitutional separation of powers. Amici include:

1. Jonathan D. Shaub is the Norman & Carole Harned Associate Professor

of Law and Public Policy at the University of Kentucky Rosenberg

College of Law, where he teaches courses in constitutional law, federal

courts, and executive power. Professor Shaub’s research focuses on the

Constitutional separation of powers, executive privilege, presidential

power, government accountability, transparency, and congressional

oversight.

2. Christina Koningisor is an Associate Professor of Law at U.C. Law San

Francisco. Professor Koningisor’s teaching and research focuses on

administrative law, media law, and state and local government law.

1 Pursuant to Supreme Court Rule 37.6, amici curiae state that no party’s counsel authored this brief

in whole or in part, and that no one other than the amici curiae, their members, or their counsel

contributed money that was intended to fund preparing or submitting the brief.

1

3. Heidi Kitrosser is the William W. Gurley Professor of Law at

Northwestern Pritzker School of Law. Professor Kitrosser’s work focuses

on the constitutional law of federal government secrecy and on

separation of powers and free speech law more broadly.

4. Margaret Kwoka is the Lawrence Herman Professor in Law at The Ohio

State University Moritz College of Law. Professor Kwoka’s research

focuses on government transparency, accountability, and the Freedom

of Information Act.

5. Rebecca Wexler is the Hoessel-Armstrong Professor of Law & Faculty

Co-Director at the Berkeley Center for Law & Technology, U.C. Berkeley

Law. Professor Wexler’s teaching and research focus on data,

technology, and secrecy in the criminal legal system.

6. G.S. Hans is a Clinical Professor of Law and founding director of the

Civil Rights and Civil Liberties Clinic at Cornell Law School. Professor

Hans’s work focuses on speech, privacy, civil liberties, and technology

policy.

None of the amici is a corporation, association, joint venture, partnership, syndicate,

or other similar entity.

2

INTRODUCTION AND SUMMARY OF ARGUMENT

The Freedom of Information Act (“FOIA”) is the cornerstone of the United

States’s commitment to open and transparent governance. Both as originally enacted,

and as amended in the wake of Watergate and in the face of expanding presidential

power, FOIA enables members of the public to access government information and

stands as a bulwark against corruption and abuse. To achieve these goals, and to

avoid the gamesmanship that would result if the executive were able to determine

without review which aspects of the federal government are subject to the law, courts

have consistently applied the type of functional approach reflected in the lower courts’

analysis in this case. The Applicants (hereinafter the “Government”), however, would

have this Court adopt a strictly formalist test, looking only to the “President’s

executive orders” delineating the “responsibilities that the President has assigned to”

the U.S. DOGE Service (“DOGE”) and not its actual functions in the government.

Appl. at 5, 14-15. Such an approach would undermine the purposes of FOIA and other

transparency laws and incentivize gamesmanship to evade the public’s expectation

of open governance. Furthermore, the Government’s heavy reliance on this Court’s

opinion in Cheney v. U.S. District Court, 542 U.S. 367 (2004) is profoundly misplaced

and does not reflect the narrow circumstances of that case.

3

ARGUMENT

I.

The Government’s formalistic position is contrary to the text and

purpose of the Freedom of Information Act and would permit the

executive branch to create exemptions from FOIA at will.

The Government asserts that the sole basis on which courts may rely to

determine whether DOGE—or any other entity established by the Executive—is an

agency subject to the Freedom of Information Act is the language of the order

establishing the entity. See Appl. at 14-15, 18. The Government’s interpretation

would enable the President to carve out exceptions to statutory transparency

mandates by the mere stroke of his pen whenever he wished.

Such unfettered

presidential power over the scope of statutorily mandated transparency is

antithetical to FOIA.

A. The text, history, and purpose of FOIA demonstrate Congress did not

envision unilateral presidential authority to exempt certain entities.

FOIA represents not only a turning point in legislatively mandated

transparency, but also the culmination of a hard-fought campaign to vindicate core

principles of self-governance. The United States “led the modern movement in favor

of transparency laws” when it enacted FOIA in 1966 and, at the time, was only the

second country to have such a legal regime. 2 FOIA represents Congress’s response to

“dramatic government abuses” and the work of “widespread social movements.” 3 In

the lead-up to its passage, members of the news media in particular 4 successfully

2 Margaret B. Kwoka, FOIA, Inc., 65 Duke L.J. 1361, 1367 (2016).

3 David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257, 314 (2010).

4 Mark Fenster, The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit

of a Visible State, 73 U. Pitt. L. Rev. 443, 451 (2012).

4

attached the concept of a “free press as an American ideal” and the media’s duty to

“present information to allow for informed political participation” to that of public

access to the government. 5 This public campaigning aligned with influential

academic theories regarding the importance of access to government information as

a tool “to improve democratic governance.” 6 Congressional statements regarding

FOIA reflected this understanding, with the House of Representatives Report stating:

“A democratic society requires an informed, intelligent electorate, and the

intelligence of the electorate varies as the quantity and quality of its information

varies.” H.R. Rep. No. 89-1497, at 12 (1966). This Court has long recognized that

Congress’s intent in passing FOIA was to “to ensure an informed citizenry, vital to

the functioning of a democratic society, needed to check against corruption and to

hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber

Co., 437 U.S. 214, 242 (1978) (citations omitted).

FOIA’s second goal—transparency as a bulwark against corruption and

abuse—is a concept which dates back to the framers, who envisioned “popular

oversight” of the President by an informed electorate, as well as Congress. 7 This was

also particularly important to Congress when it expanded the law in 1974 in the wake

of the Watergate scandal, “the most notable American example of secrecy's capacity

to enable and shield executive misconduct.” 8 See Rojas v. Fed. Aviation Admin., 989

5 Kwoka, supra note 2, at 1369.

6 Id. at 1368.

7 Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 Iowa L.R. 489, 525-

526 (2007); see also Jenny-Brooke Condon, Illegal Secrets, 91 Wash. Univ. L.R. 1099, 1109-10 (2014).

8 Condon, supra note 7, at 1110.

5

F.3d 666, 687 (9th Cir. 2021). The 1974 amendments included adding the Executive

Office of the President (“EOP”), excluding only certain staff and units, to the list of

agencies FOIA covers. See Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 156 (1980). By expanding the meaning of “agency,” Congress specifically

sought to “broaden applicability” of FOIA. H.R. Conf. Rep. No. 93–1380, p. 15 (1974).

The post-Watergate, “modern form” of FOIA “has commanded deep public loyalty,

taken on a quasi-constitutional valence, and spawned a vast network of imitator laws

at all levels of United States government and in democracies around the world.” 9

Congress passed the 1974 amendments against the backdrop of not only

Watergate, but a growing EOP—growth that has only accelerated in the five decades

since. The EOP was initially created by President Franklin D. Roosevelt pursuant to

the Reorganization Act of 1939. Pub. L. No. 76-19, 53 Stat. 561 (authorizing

reorganization plans); 4 Fed. Reg. 2727, 53 Stat. 1423. President Roosevelt’s

implementing executive order made clear that the President’s core cadre of

assistants, those within the “White House Office,” “shall have no authority over

anyone in any department or agency” and “[i]n no event shall . . . be interposed

between the President and the head of any department or agency.” Exec. Order No.

8248, 4 Fed. Reg. 3864, 3864 (Sept. 8, 1939). The order also created four additional

divisions outside the White House Office. Id. In the next decade, Congress created

two more advisory bodies within the EOP: the Council of Economic Advisers, see

9 David E. Pozen, Deep Secrecy, 62 Stan. L. Rev. 257, 314 n.204 (2010); see also Elec. Priv. Info. Ctr. v.

Internal Revenue Serv., 261 F. Supp. 3d 1, 6 (D.D.C. 2017), aff’d, 910 F.3d 1232 (D.C. Cir. 2018)

(quotations omitted) (“Congress enacted FOIA with a ‘broadly conceived’ purpose ‘to pierce the veil of

administrative secrecy and to open agency action to the light of public scrutiny.’”).

6

Employment Act of 1946, Pub. L. No. 79-304, 60 Stat. 23, and the National Security

Council, see National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495. 10

Over time, the EOP grew to include not only advisory bodies that provided

recommendations to the President, but also implementation entities that provided

direction to agencies. In 1976, Congress created the precursor to today’s Office of

Science

and

Technology

Policy.

National

Science

and

Technology

Policy,

Organization, and Priorities Act of 1976, Pub. L. No. 94-282, 90 Stat. 459. Its

functions included not only “advis[ing] and assist[ing] the President” but also

“evaluating federal programs.” Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971).

In recent decades, executive orders, rather than acts of Congress, have been the

primary mechanism expanding the EOP’s reach. President Biden issued an executive

order creating, within the EOP, the White House Competition Council and charged

it with “implement[ing] the administrative actions identified in [the] order” and

“identify[ing] and advance[ing] any additional administrative actions necessary to

further the policies set forth [in the order].” Exec. Order No. 14036, 86 Fed. Reg.

36987, 36990 (July 9, 2021). President Biden similarly created the Infrastructure

Implementation Task Force within the EOP and tasked it with “coordinat[ing]

effective implementation of the Infrastructure Investment and Jobs Act and other

related significant infrastructure programs.” Exec. Order No. 14052, 86 Fed. Reg.

64335, 64335 (Nov. 15, 2021).

10 Congress also appended to the EOP the Office of the U.S. Trade Representative, see Trade Expansion

Act of 1962, Pub. L. No. 87-794, 76 Stat. 872, and the Council on Environmental Quality, see National

Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852.

7

Meanwhile, existing offices like the Office of Management and Budget—whose

precursor, the Bureau of the Budget, was part of President Roosevelt’s original EOP,

Exec. Order No. 8248, 4 Fed. Reg. 3864—have taken on new roles and powers. At the

beginning of his presidency, President Reagan issued an executive order requiring

agencies to submit major rules to OMB for review, greatly expanding the EOP’s

control over agency decision-making. See Exec. Order No. 12291, 46 Fed. Reg. 13193

(Feb. 17, 1981). Subsequent administrations continued such muscular exercises of

supervision, in one form or another. 11

The accumulation of power within the EOP is not without potential

advantages, 12 but “[a] strong presidential role,” standing alone, “does not ensure

strong accountability.” 13 Rather, “the degree to which the public can understand the

sources and levers of bureaucratic action” is “a fundamental precondition of

accountability in administration.” 14 The Government’s approach in this case would

grant the executive a forceful means to stymie this precondition. Specifically, it would

enable the President simply to draft orders that define EOP entities in ways that

remove them from the reach of FOIA and other transparency measures. Such a

system carries all the ills of concentrated power, with none of the accountability

advantages that transparent administration provides. Indeed, it runs directly

counter to a major goal underlying FOIA’s 1974 extension to the EOP:

11 See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2277-82 (2001).

12 Nor is the EOP the only way in which presidents have expanded executive power in ways that create

transparency concerns. See generally Mitchel A. Sollenberger & Mark J. Rozell, The President’s Czars:

Undermining Congress and the Constitution (2012).

13 Kagan, supra note 11, at 2332.

14 Id.

8

counterbalancing the dangers that EOP’s growth poses to executive transparency and

accountability.

B. The Government’s argument, if accepted, would fundamentally

undermine FOIA.

The Government’s argument in support of its Application, if accepted, would

be in fundamental opposition to FOIA’s role as a “remarkably, even radically, potent

tool for transparency” 15 and against abuse. If courts and parties could look only at

the “plain text of the executive order governing [DOGE],” Appl. at 34, as the sole basis

for determining whether DOGE—or any similar entity—is an agency subject to FOIA,

it would permit the President to authorize an end-run around FOIA at will. Yet this

is the position the Government continually presses, arguing that FOIA litigants and

courts may only review the “governing statutes, regulations, or executive orders.”

Appl. at 14; see also id. at 18 (quoting Gov’t C.A. Mandamus Reply at 8-9) (“whether

FOIA applies to an entity in the Executive Office of the President is determined by

interpretation of the orders, statutes, and documents that created the entity or

specified its responsibilities”). Were this true, the President could escape

transparency law by claiming that, on paper, all bodies within the EOP are

“presidential advisory bod[ies] within the Executive Office of the President”—and by

creating new entities with extraordinary power, locating them within the EOP, and

casting them as “advisory.” Id. at 1, 19.

Instead of unquestioningly accepting the government’s determination as to

whether DOGE is an agency for purposes of FOIA, the district court appropriately

15 Pozen supra note 9, at 313.

9

applied the relevant precedent to determine that, given the substantial questions

regarding the nature of the entity’s authority, discovery was appropriate. App. 7a10a. Resolving this question requires looking not only at whether an entity “could

exercise substantial independent authority” but also whether it “does in fact exercise

such authority.” Armstong v. Exec. Off. of the President, 90 F.3d 553, 560 (D.C. Cir.

1996) (emphasis added); see also App. 7a (same). The D.C. Circuit accordingly rejected

a formalist analysis in answering this question, instead employing the “fact-specific

functional approach” which predates even the 1974 amendments. See Cotton v.

Heyman, 63 F.3d 1115, 1121 (D.C. Cir. 1995); Soucie, 448 F.2d at 1073.

The Government’s attempts to avoid this framework are unavailing. Appl. at

14-19. While a responding entity’s legal authority is an “important consideration” in

determining agency status under FOIA, it is not the only consideration, and courts

have looked well beyond an entity’s stated authority. See Soucie, 448 F.2d at 1076

(noting in FOIA analysis that the Office of Science and Technology published

information in the Federal Register, indicating agency status); see also Rocap v.

Indiek, 539 F.2d 174, 177 (D.C. Cir. 1976) (looking past “mere presence of a federal

charter” to whether there was “substantial federal control over its day-to-day

operations.”); Ryan v. Dep’t of Just., 617 F.2d 781, 788 (D.C. Cir. 1980) (“The logical

conclusion from the FOIA language and from Soucie is that, depending on its general

nature and functions, a particular unit is either an agency or it is not.”). Meyer v.

Bush, on which the Government relied below, see Gov’t Mandamus Pet. at 3, 22, 28,

supports rather than undermines this functional approach. See 981 F.2d 1288, 1301

10

(D.C. Cir. 1993) (“These cases teach us that whether an establishment is an ‘agency’

for FOIA purposes hinges primarily on its functions.”); id. (“determining whether the

Task Force is an agency requires a careful examination of both its authorized and

actual functions.”) (emphasis added). The D.C. Circuit’s long-standing and more

searching functional approach is consistent with decisions of this Court rejecting

strictly formalistic arguments in FOIA litigation. As this Court has explained,

citizens’ rights “to know what their Government is up to . . . should not be dismissed

as a convenient formalism. It defines a structural necessity in a real democracy.” Nat’l

Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004) (internal quotations

omitted); see also Jud. Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 218 (D.C. Cir.

2013) (four-part test for determining whether an agency was “in control” of a

document”). The Government’s position, however, reads “functional” to mean what

the President says the function of any given part of the EOP will be, regardless of the

actual activities of the entity. As such, it asks courts and the public to accept, without

recourse, the President’s decision as to whether such an entity is subject to FOIA.

Courts must look at the actual functioning of the entity, which is precisely

what the district court’s order granting discovery permits. Faced with prima facie

evidence that DOGE is and was wielding substantial authority “across vast areas of

the federal government,” App. 10a, as well as ambiguity from the executive orders on

which the Government heavily relies, the district court appropriately assessed that

limited discovery was needed to resolve the critical questions regarding DOGE’s role.

App. 10a-11a. The district court’s approach accords with FOIA’s purposes of

11

promoting an informed public and protecting against abuses, Robbins Tire & Rubber

Co., 437 U.S. at 242, by not permitting the President to establish de facto exemptions

by fiat, simply through the formulation of executive orders. It is the only way that the

Court, litigants, and public can be assured that parts of the EOP established by

executive order—like DOGE 16—are actually advisory in nature and not carrying out

other roles in the federal government without the transparency that Congress,

through FOIA, required. It is also consistent with how courts address other FOIA

questions—deferring to agencies under limited circumstances but permitting

discovery to probe agency representations where there is “some tangible evidence” to

the contrary. See, e.g., Carney v. U.S. Dep’t of Just., 19 F.3d 807, 812 (2d Cir. 1994);

Porter v. U.S. Dep’t of Justice, 717 F.2d 787, 791-93 (3d Cir. 1983) (affidavits included

conflicting information); Schaffer v. Kissinger, 505 F.2d 389, 390-91 (D.C. Cir. 1974)

(per curiam) (inadequate reasons stated for application of national security

exemption). This Court should affirm the district court’s approach to these questions.

16 The nature of DOGE, as revealed through public reporting, underscores the importance of a more

searching inquiry. While courts may generally accept that entities are operating within their legal

remit, that does not appear to be the case with DOGE. Nor do the executive orders seem to limit DOGE

to advice, rather establishing that DOGE will do things like “moderniz[e] Federal technology and

software” and provide advice to agency heads. Appl. at 4-5 (quoting 90 Fed. Reg. 8441, 8441 (Jan. 29,

2025) and 90 Fed. Reg. 8621, 8621-8622 (Jan. 30, 2025)); see also id. at 4 (describing DOGE’s “mission

of identifying and eliminating fraud, waste, and abuse in the federal government.”). DOGE’s activities,

many of which appear to be well outside of the scope of the executive orders, have given rise to several

cases arguing that DOGE is acting ultra vires. See Compl., ¶¶362-368, Am. Fed. of Gov’t Empl., AFLCIO v. Trump, No. 3:25-cv-03698 (N.D. Cal. Apr. 28, 2025), ECF No. 1; Compl., ¶¶264-271, 322-325,

Japanese Am. Citizens League v. Musk, No 1:25-cv-00643 (D.D.C. Mar. 5, 2025), ECF No. 1; Compl.,

¶¶261-272, New Mexico v. Musk, No. 1:25-cv-00429 (D.D.C. Feb. 13, 2025), ECF No. 2. Given

substantial reporting that DOGE operates well outside its authority, and the ambiguity in that

authority described by the district court, looking beyond the mere wording of the executive orders is

all the more appropriate.

12

C. The Government’s position would upend the separation of powers.

Despite the Government’s protestations, it is their argument, not the district

court’s order, that would disrupt the separation of powers. FOIA embodies and

reflects Congress’s prerogative in ensuring the operations of the federal government

remain open, both as a public transparency mechanism and to avoid executive

abuses. See Dep’t of Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (Congress’s intent

in enacting FOIA “reflected ‘a general philosophy of full agency disclosure unless

information is exempted under clearly delineated statutory language.’”) (quoting S.

Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)).

Congress passed the Freedom of Information Act in response to a

persistent problem of legislators and citizens, the problem of obtaining

adequate information to evaluate federal programs and formulate wise

policies. Congress recognized that the public cannot make intelligent

decisions without such information, and that governmental institutions

become unresponsive to public needs if knowledge of their activities is

denied to the people and their representatives.

Soucie, 448 F.2d at 1080. Given that broad purpose, the “touchstone of any

proceedings under the Act must be the clear legislative intent to assure public access

to all governmental records whose disclosure would not significantly harm specific

governmental interests.” Id. Disclosure must be read broadly, and “the exemptions

narrowly.” Id. And, of course, Congress did not exempt the EOP, but specifically

included it in within FOIA’s scope, excluding only the Office of the President.

Kissinger, 445 U.S. at 156. In 2016, Congress codified a presumption of openness,

meaning an agency may withhold information requested under FOIA only when it

“reasonably foresees that disclosure would harm an interest protected by [a FOIA]

13

exemption” or “prohibited by law.” 5 U.S.C. § 552(a)(8)(A). In other words, agencies

may not withhold information simply because it technically falls within one of FOIA’s

exemptions. Id. 17

By permitting the President to create at-will exemptions within an expanding

EOP through the language of executive orders, without normal judicial oversight

aided, where appropriate, by discovery, the Government’s formulation would upend

Congress’s intent, relying instead on the President’s determination over which parts

of EOP are subject to FOIA. Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, on

which the Government chiefly relies, requires nothing of the sort. Cheney specifically

acknowledged that access to information could implicate the interests of the other

branches of government, but that the statute in question—the Federal Advisory

Committee Act—did not raise such concerns. 542 U.S. 367, 385-86 (2004). But FOIA

very much does, as the entire point of the Act and its amendments is to guarantee

access for both the public and their representatives in the legislative branch, subject

only to narrow exemptions.

Moreover, the Government’s position encroaches on the authority of the

judiciary. Ensuring compliance with FOIA, like other statutes that regulate the

conduct of executive branch officials, is well within the authority of the courts. See

Wash. Post Co. v. U.S. Dep’t of State, 840 F.2d 26, 31-32 (D.C. Cir. 1988), reh’g

granted, judgment vacated sub nom. Wash. Post Co. v. Dep’t of State, 898 F.2d 793

17 See also Mike Karpman, The FOIA Improvement Act of 2016: A New Era of Government Openness?,

Media Freedom & Info. Access Clinic, Yale L.S. (Nov. 14, 2017), https://perma.cc/6CN4-46T7.

14

(D.C. Cir. 1990) (“When FOIA was originally enacted in 1967, Congress foresaw the

need for de novo judicial review in order that the ultimate decision as to the propriety

of the agency’s action is made by the court and to prevent the proceeding from

becoming meaningless judicial sanctioning of agency discretion.”) (cleaned up). And

there is no structural concern that would require courts to defer to the Executive as

to what agencies are, or are not, covered by the law. Cf. Trump v. Hawaii, 585 U.S.

667, 703 (2018).

The long-standing functional approach including, where appropriate, discovery

on the nature of an entity’s authority, preserves the core protections of FOIA, and

courts’ roles in ensuring that the law is being followed, while according appropriate

deference to coordinate branches of government.

II.

There is no adequate substitute for the transparency and

accountability mandated by FOIA.

Other records laws and transparency tools—the Presidential Records Act, the

Federal Records Act, congressional oversight, and newsgathering—have significant

limitations that make them poor stand-ins for the robust requirements of FOIA.

The Presidential Records Act (“PRA”)—primarily a document preservation

law—is no substitute for FOIA. While the PRA requires the “maintain[ence] and

preserv[ation] [of] Presidential records,” it prohibits their disclosure “until the

conclusion of a President’s term of office” “except under direction of the President.”

44 U.S.C. § 2203(f). As a result, Citizens for Responsibility and Ethics in Washington

(“CREW”) cannot secure disclosure of DOGE-related documents or any others under

the PRA within a reasonable time frame without the President’s assent. Nor can the

15

public be sure that such documents are being properly preserved for future disclosure

because, as the D.C. Circuit has previously held, the PRA “precludes judicial review

of the President’s recordkeeping practices and decisions.” Armstrong v. Bush, 924

F.2d 282, 291 (D.C. Cir. 1991). Enforcement of the PRA’s records-preservation

requirements is instead left to the Archivist of the United States, 44 U.S.C. § 2905(a),

a role ultimately below the President. Indeed, within weeks of taking office, President

Trump fired the Senate-confirmed Archivist and installed his own Secretary of State

in her place. In so doing, President Trump ignored the only statutory protection on

the independence of the role: that “[t]he President shall communicate the reasons for

. . . removal [of the Archivist] to each House of the Congress.” 44 U.S.C. § 2103(a). An

Archivist who seeks to document records the President would prefer destroyed may

well be fired without a word. That exact story has also played out with respect to the

Librarian of Congress, whom President Trump recently purported to fire and

replace. 18 The PRA, then, is a relatively minor obstacle to a President determined to

shield records from disclosure—now or ever.

The Federal Records Act similarly concerns document preservation rather

than disclosure. It requires that “[t]he head of each Federal agency shall make and

preserve [certain] records,” 44 U.S.C. § 3101, but it creates no right for the public to

seek those records. And like the PRA, the Federal Records Act does not “authorize

private litigants to invoke federal courts to prevent an agency official from improperly

18 Hillel Italie & Seung Min Kim, Deputy attorney general who defended Trump in hush money trial is

named

acting

librarian

of

Congress,

Associated

Press

(May

https://apnews.com/article/trump-library-congress-todd-blanche-carla-haydencc2154fa8644a5c29d196e505e4faa51.

16

12,

2025),

destroying or removing records.” Armstrong, 924 F.2d at 294. Enforcement is left to

the individual agency heads in conjunction with the Archivist. See 44 U.S.C. § 3106.

While plaintiffs can seek judicial review of nonenforcement decisions by the Archivist

when an agency head fails to “initiate action . . . for the recovery of records,” the

Archivist’s statutory duty—and therefore the limit of what a court can compel—is

only to “request the Attorney General to initiate such an action, and [] notify the

Congress when such a request has been made.” Id.; see Armstrong, 924 F.2d at 295.

Congress’s ability to compel disclosure through its oversight authority is also

inadequate to ensure transparency. As an initial matter, Congress rarely conducts

White House oversight when controlled by the same party as the President. 19

Moreover, although Congress does have broad authority to conduct investigations

and issue subpoenas in furtherance of its legislative authority, see Trump v. Mazars

USA, LLP, 591 U.S. 848, 863 (2020); Watkins v. United States, 354 U.S. 178, 197

(1957), recent decades have made clear the limitations of that authority. Faced with

congressional inquiries, “the executive branch has developed a comprehensive

constitutional theory of executive privilege” that grants it “virtually unlimited ability

to . . . retain any information it does not want to provide to Congress.” 20 And the

Department of Justice has questioned the legitimacy of congressional oversight into

the White House as a whole, claiming that “[c]ongressional oversight of the White

House is subject to greater constitutional limitations” than normal oversight and that

19 See Jonathan David Shaub, White House Inspection, 103 Wash. Univ. L. Rev. __ (forthcoming 2026)

(discussing the “inadequacy” of congressional investigative authority for White House accountability),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5152566.

20 Jonathan David Shaub, The Executive’s Privilege, 70 Duke L.J. 1, 8-10 (2020).

17

Congress lacks any oversight authority to seek information “from White House staff

concerning the decision-making process in connection with the President’s

performance of [constitutional] functions in particular matters.” Congressional

Oversight of the White House, 45 Op. O.L.C. __, 1, 16 (Jan. 8, 2021).

On the basis of these constitutional positions, the executive branch has

aggressively resisted congressional oversight efforts, refusing to comply with

subpoenas or cooperate with requests for information. 21 Officials have refused to

testify or provide documents on the basis of “prophylactic executive privilege,” the

idea that the mere potential that privilege might one day be asserted and the need to

protect the President’s authority to do so itself shields information from disclosure—

regardless of whether privilege is ever invoked, let alone justified. 22 And like the

President, “[l]ower executive branch officials refuse to disclose information by

shielding themselves” in this prophylactic privilege. 23 As a result, “[e]xecutive

privilege’s very existence, and political branch actors’ awareness of the same, can cast

strong shadows on those oversight disputes in which the privilege is not formally

invoked.” 24 Congressional oversight, then, is no substitute for transparency laws.

In addition to the limitations described in these various statutes, and the

reality of political inaction during periods of one-party control, the executive branch

is also curtailing access and transparency in other ways. For example, a recent memo

21 See Heidi Kitrosser, Like “Nobody Has Ever Seen Before”: Precedent and Privilege in the Trump Era,

95 Chi.-Kent L. Rev. 519, 529-34 (2021).

22 Shaub, The Executive’s Privilege, 70 Duke L.J. at 55; see, e.g., Letter from Pat A. Cipollone, Counsel

for President Donald Trump, to Members of Congress 7 (Oct. 8, 2019), https://perma.cc/6X43-28FF.

23 Shaub, supra note 22, at 56.

24 Heidi Kitrosser, The Shadow of Executive Privilege, 15 Forum 547, 565 (2017).

18

from the Attorney General instructs Department of Justice employees to pursue “the

use of subpoenas, court orders, and search warrants to compel production of

information and testimony by and relating to members of the news media.”

Memorandum from Attorney General Pam Bondi for All Department Employees,

Updated Policy Regarding Obtaining Information From, or Records of, Members of

the News Media (Apr. 25, 2025), https://perma.cc/PFG9-GYXM. The memo rescinded

the previous policy, which “recognize[d] the important national interest in protecting

journalists from compelled disclosure of information revealing their sources” and,

accordingly, curtailed the authority of Department employees to pursue compulsory

disclosure of journalistic sources. 28 C.F.R. § 50.10 (2022); see Memorandum from

Attorney General Pam Bondi at 1 & n.1. The government has also retaliated against

newsgathering organizations for disfavored reporting. A court recently enjoined the

government’s attempt to bar the Associated Press from certain government spaces on

the basis of its editorial choices, though, in so doing, it acknowledged “the various

permissible reasons the Government may have for excluding journalists from limitedaccess events.” Associated Press v. Budowich, No. 1:25-cv-00532-TNM, 2025 WL

1039572, at *1 (D.D.C. Apr. 8, 2025). In these and other ways, and whether lawful or

not, the ability of journalists to uncover what FOIA cannot is under strain.

III.

The Government’s position, if accepted, would further enable shell

games to avoid transparency laws.

The combined effect of the Government’s reading of the 1974 amendments to

FOIA, Cheney, and the lack of alternative safeguards would permit a never-ending

shell game to escape all transparency laws. In this shell game, “accountability is the

19

palmed object and potential accountability mechanisms are the shells.” 25 “If the game

is well played, the public will . . . be told that accountability does not lie under one

shell for exclusivist reasons, but that it may lie under the next shell, only for the

process to repeat ad infinitum.” 26 The logical extension of the Government’s proposed

rule would allow—and incentivize—presidents to create entities similar to DOGE

within the EOP that can operate within a black box and avoid transparency laws.

The Government’s actions illustrate how this shell game would operate. Here,

they argue that DOGE is an “advisory body,” and thus excluded from FOIA. Appl. at

2-5. This seems to imply that DOGE is an advisory committee subject to the Federal

Advisory Committee Act (“FACA”), which requires the disclosure of certain records

from any “committee, board, commission, council, conference, panel, task force, or

other similar group, or any subcommittee or other subgroup thereof . . . that is

established or utilized to obtain advice or recommendations for the President or one

or more agencies or officers of the Federal Government.” 5 U.S.C. § 1001(2)(A).

Indeed, prior to his inauguration, President-Elect Trump explicitly contemplated

DOGE as an advisory committee “outside of government” and thus squarely within

the ambit of FACA. 27

But following public reporting that DOGE would likely be subject to FACA and

letters from watchdog organizations calling on DOGE to comply with FACA, 28

25 Heidi Kitrosser, National Security and the Article II Shell Game, 26 Const. Comment. 483 (2010).

26 Id.

27 Statement by President-elect Trump Announcing That Elon Musk and Vivek Ramaswamy Will Lead

the Department of Government Efficiency (Nov. 12, 2024), https://perma.cc/6YHF-37UN.

28 See David A. Fahrenthold, Two Watchdogs Were Rebuffed from Joining Trump’s Cost-Cutting Effort,

N.Y.

Times

(Jan.

16,

2025),

watchdogs.html?searchResultPosition=2.

https://www.nytimes.com/2025/01/16/us/doge-trump-

20

President Trump created DOGE as an EOP entity tasked with updating

governmental software and technology, by repurposing and renaming an existing

entity with a similar mission. 29 Now, the Government contends that DOGE is not an

advisory committee because it includes only federal employees, see Memorandum in

Support of Motion to Dismiss at 12, Public Citizen v. Trump (1:25-cv-00164) (D.D.C.

Apr. 11, 2025), ECF No. 33-1 (“USDS’s structure is incompatible with the definition

of an advisory committee under FACA”) but simultaneously exempt from FOIA for

the sole reason that it is housed within the Executive Office of the President.

Having attempted to shirk both FOIA and FACA, one shell remains: the PRA

which, despite many of the limitations described above, supra Section II, does seek to

protect executive branch records. But DOGE operates to avoid accountability there

too. According to public reporting, DOGE has relied on the Signal application to

communicate, likely thwarting the PRA’s record retention and preservation

requirements since Signal automatically deletes messages after a set time. 30 Such

extreme secrecy forms part of a pattern of actions from recent administrations geared

at—and having the effect of—avoiding the PRA, which is dependent on the norm of

presidential lawfulness and fidelity to records laws. Yet in the past ten years alone,

EOP staff and presidents have allegedly conducted important government affairs on

29 Exec. Order No. 8441, 90 Fed. Reg. 8441 (Jan. 20, 2025).

30 Alexandra Ulmer, Marisa Taylor, Jeffrey Dastin, and Alexandra Alper, Exclusive: Musk’s DOGE

Using AI to Snoop on U.S. Federal Workers, Sources Say, Reuters (Apr. 8, 2025),

https://www.reuters.com/technology/artificial-intelligence/musks-doge-using-ai-snoop-us-federalworkers-sources-say-2025-04-08.

21

Signal, 31 destroyed classified documents by flushing them down a toilet, 32 and stored

classified documents in a personal garage. 33

The Government’s attempts to avoid accountability elide Congress’ intent to

achieve greater democratic accountability through transparency laws in the

aftermath of the Watergate scandal. Faced with a president who operated in the

shadows and destroyed his records, Congress embraced maximum transparency by

strengthening FOIA and enacting the PRA. 34 Far from intending government officials

to evade accountability at every turn, these laws were aimed at combating abuses

seen in the past. See supra Section I.A. This would create an end run around

Congress’s careful work and harm the transparency checks put in place by an

independent branch of government determined to foster executive accountability.

IV.

The Government’s Reliance on Cheney is misplaced.

The Government’s sweeping arguments in support of the executive branch’s

ability to unilaterally shield portions of the EOP from FOIA rely heavily on Cheney.

But Cheney addressed a very different set of circumstances and equities, and the

Government’s heavy reliance is misplaced. As the D.C. Circuit recognized in CREW

v. DHS, Cheney’s holding was fact-specific, 532 F.3d 860, 865-66 (D.C. Cir. 2008)—

31 Jeffrey Goldberg, The Trump Administration Accidentally Texted Me Its War Plans, Atlantic (Mar.

24, 2025), https://perma.cc/6R9K-MLM3.

32 Alan Feuer, Judge Orders F.B.I. to Disclose Some Materials in Trump Classified Documents Case,

N.Y. Times (Feb. 10, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-classifieddocuments.html.

33 Charlie Savage, Additional Documents Found at Biden’s Wilmington Home, White House Says, N.Y.

Times (Jan. 14, 2023), https://www.nytimes.com/2023/01/14/us/biden-classified-documentsdelaware.html.

34 See Margaret Kwoka & Bridget DuPey, Targeted Transparency as Regulation, 48 F.S.U. L. Rev, 385,

389 (2021).

22

including in ways distinguishable from this case: “To begin with, the discovery

request in Cheney was directed at the Vice President himself. Indeed, the Court

explained that ‘[w]ere the Vice President not a party in the case’” there might be

“‘different considerations.’” Id. (quoting Cheney, 542 U.S. at 381). And as CREW

described below, Cheney does not shield the entire EOP from normal discovery

demands, but only “safeguard[ed] against unnecessary intrusion into the operation

of the Office of the President” and the Office of the Vice President. Cheney, 542 U.S.

at 387 (emphasis added).” Mandamus Pet. Resp. at 2, In re U.S. DOGE Service (No.

25-5130) (D.C. Cir. Apr. 25, 2025). The Government’s sweeping claim that any

information from “the Office of the President” is subject to a heightened burden is

therefore inconsistent with the limited holding of Cheney, and with the ordinary

practice of Freedom of Information Act (FOIA) requests. Cheney is also inapposite for

at least two additional reasons.

First, Cheney concerned a different legal question—whether President George

W. Bush’s National Energy Policy Group, which included agency heads and

assistants, as well as the Vice President and whatever “other officers of the Federal

Government” he deemed appropriate, 542 U.S. at 373, was subject to FACA. The

discovery at issue included broad requests directed at, among others, Vice President

Cheney “to ascertain the NEPDG’s structure and membership, and thus to determine

whether the de facto membership doctrine applies.” Id. at 375. The district court’s

discovery order in that case, accordingly, authorized discovery directed at defendants

including the Vice President, but “explained that the Government could assert

23

executive privilege to protect sensitive materials from disclosure.” Id. The court did

so without having resolved the Government’s separation-of-powers argument

regarding FACA. Id. FOIA, however, already addresses such separation-of-powers

concerns, particularly through Exemption 5, which applies to “inter-agency or intraagency memorandums or letters that would not be available by law to a party other

than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 is

understood as “incorporating the privileges which the government enjoys under the

relevant statutory and case law in the pretrial discovery context.” Am. First Legal

Found. v. U.S. Dep’t of Agric., 126 F.4th 691, 694 (D.C. Cir. 2025) (cleaned up). By

incorporating those privileges and protections the Government already enjoys, FOIA

already accommodates the separation-of-powers concerns that motivated the Court,

and on which the Government now relies, in Cheney.

Second, the discovery requests at issue in Cheney were far broader than the

targeted discovery ordered by the district court here. In Cheney, the litigants sought

“everything under the sky” and “all the disclosure to which they would be entitled in

the event they prevail on the merits, and much more besides.” Cheney, 542 U.S. at

387-88. Cheney emphasized the overbreadth of the requests, comparing them to the

“narrow subpoena orders” deemed permissible in United States v. Nixon, 418 U.S.

683 (1974). Cheney, 542 U.S. at 388. Those narrow orders, the Court opined, “[stood]

on an altogether different footing from the overly broad discovery requests” since the

“very specificity of the subpoena requests serves as an important safeguard against

unnecessary intrusion into the operation of the Office of the President.” Id.

24

Unlike in Cheney, the district court here ordered targeted discovery

appropriate to this early stage of the litigation. While the discovery requests at issue

in Cheney were “unbounded in scope,” Id., the discovery ordered here is tailored to

determine “whether [DOGE] is wielding independent authority sufficient to bring it

within FOIA’s ambit.” App. at 8a. To that end, it narrowed Plaintiffs’ requested

written discovery and granted only two depositions. Cheney does not stand for the

proposition that separation of powers bars such limited discovery.

CONCLUSION

For the foregoing reasons, this Court should deny the Government’s

Application for a Stay of the Orders of the U.S. District Court for the District of

Columbia

Pending

Certiorari

or

Mandamus

and

Request

for

Immediate

Administrative Stay.

Respectfully Submitted,

/s/ Bruce V. Spiva

Bruce V. Spiva

Counsel of Record

Daniel S. Lenz

Katherine Hamilton

Kunal Dixit

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Suite 400

Washington, D.C. 20005

Tel: (202) 736-2200

Fax: (202) 736-2222

bspiva@campaignlegalcenter.org

dlenz@campaignlegalcenter.org

khamilton@campaignlegalcenter.org

kdixit@campaignlegalcenter.org

Counsel for Amici Curiae

25