Justice Department says discovery into an advisory body defeats FOIA's exclusion
United States Department of JusticeUnited States government, represented by the Justice Department and Solicitor General D. John Sauer, in a Supreme Court petition
In its petition, the Justice Department argued that intrusive discovery into presidential advisory bodies raises the separation-of-powers concerns that led Congress to leave such bodies outside FOIA.
Responding to
The U.S. DOGE Service is not an agency subject to FOIA because it is a body in the Executive Office of the President whose role is to advise the President.
“Subjecting advisory bodies to intrusive discovery triggers the very concerns that Congress sought to avoid by excluding presidential advisory bodies from FOIA’s reach.”
Original text
Where this statement fits
Supreme Court agrees to review court-ordered discovery into whether DOGE is subject to FOIA
CREW sued in February 2025 to make the U.S. DOGE Service process its public-records request under the Freedom of Information Act. The Justice Department argues that USDS is a presidential advisory body outside FOIA and that court-ordered discovery into its authority intrudes on the separation of powers. CREW argues that USDS exercised substantial independent authority and that limited discovery is needed to decide whether FOIA applies. On October 13, 2026, the Supreme Court agreed to review the appeals court order that let most of that discovery proceed.
Source and context
Original text
About this source
The Justice Department's petition on behalf of the U.S. DOGE Service and other federal defendants. It argues that the remaining discovery intrudes on a presidential advisory body and asks the Court to review the D.C. Circuit's July 14, 2025 order. The appendix reproduces the lower-court orders.
Archived copy (opens in a new tab)Before the quotation
The petition says CREW does not need names and detailed information about every USDS employee, or a deposition of its head, to litigate whether USDS is an agency under FOIA.
After the quotation
It cites Justice Clarence Thomas's separate opinion in Cheney v. U.S. District Court on broad discovery into the inner workings of the executive branch, and asks the Court to review the D.C. Circuit's July 14, 2025 order.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
The reference point is the Justice Department's position that the U.S. DOGE Service, as a body that advises the President, should not face court-ordered discovery into whether FOIA applies to it. Label: Defended or excused. The department argues for that position directly, saying discovery into an advisory body triggers the concerns FOIA's exclusion was meant to avoid. The closest competing label is Challenged characterization; it loses because the petition goes beyond disputing how USDS is described and argues that the discovery itself should not proceed.
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More from this case
Read the full caseCREW says the government's rule against discovery conflicts with FOIA's text
Citizens for Responsibility and Ethics in Washington
“Undisputed facts in the public record—including the President’s statements—confirmed that USDS was wielding enormous independent authority across the federal government. ... The government’s proposed rule is impossible to square with statutory text, and it would be ripe for abuse.”Read statement
Donald K. Sherman calls the government's petition a delay tactic
“This appeal is an obvious delay tactic to keep the American public in the dark about DOGE’s reckless operation and disastrous impact. The lower courts have categorically ruled that CREW is entitled to discovery, and rather than accept those rulings and provide the Court and the public with long overdue transparency, DOGE is trying to dodge disclosure for as long as possible.”Read statement
American Oversight says the Supreme Court is shielding DOGE from scrutiny
American Oversight
“President Trump continues to use the Supreme Court as a shield — protecting DOGE from accountability and hindering the public’s right to know ... The Court didn’t dispute that DOGE may be violating transparency laws — it merely objected to how the lower court was trying to uncover the truth.”Read statement
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The Dispute Index. "Justice Department says discovery into an advisory body defeats FOIA's exclusion". First published: 2026-10-14. Last updated: 2026-10-14. https://disputeindex.com/events/5670-in-its-petition-the-justice-department-argued-that