Anna Bower: DOGE-ing Questions in Federal Court

[Nevilledog]

https://www.lawfaremedia.org/article/doge-ing-questions-in-federal-court


Anna Bower
Anna Bower
@annabower
Meet The Authors
Published by The Lawfare Institute
in Cooperation With
Brookings
Subscribe to Lawfare
On Wednesday, Feb. 5, Judge Colleen Kollar-Kotelly held a status conference in Alliance for Retired Americans et al. v. Secretary of the Treasury. The suit alleges that the secretary of the treasury, Scott Bessent, violated federal privacy law by allowing individuals associated with the Department of Government Efficiency (DOGE) access to the Department’s payment system. According to the complaint, the system maintains sensitive personal and financial information about “every individual” who makes or receives a payment from the federal government. Among other disbursements, the system is responsible for distributing tax refunds, federal employee salaries, payments to government contractors, and Social Security and Medicare benefits.

The purpose of the hearing was to set a schedule on the plaintiff’s motion for a preliminary injunction. But Judge Kollar-Kotelly spent much of the hearing in fact-finding mode, peppering a Justice Department attorney, Bradley Humphreys, with questions about the nature and extent of the access provided to the DOGE-aligned individuals. Humphreys, for his part, provided answers that were carefully hedged with qualifying language—and that were often inconsistent with public media reports. Far from clarifying what exactly DOGE and its associates are up to, Humphreys’ responses raised more questions than they answered.

Below, here are three disputed factual issues that remain unresolved following the hearing.

Question #1: Who has or had access to the information maintained in the payment system?

During the hearing on Wednesday, Humphreys, on behalf of the Justice Department, initially stated that only one DOGE associate had access to the Treasury Department’s payment system: Marko Elez, a 25-year-old Elon Musk ally who reportedly worked at Musk’s companies, SpaceX and the social media platform X, before joining the government. Later, Humphreys clarified that the system is also accessible to Tom Krause, a software executive affiliated with DOGE.

According to Humphreys, Krause supervised Elez’s work within the Treasury Department, where both men were designated “special government employees.” A special government employee is a person who is expected to work in the federal government for a 130-days or less during a 365-day period. Special government employees are subject to most government ethics and conflict of interest rules, though “sometimes in a less restrictive way.”

*snip*