There is no legal basis to prevent the chief executive from consulting with government employees about the operations of the government.
Even judicial partisans do not like to get reversed by higher courts — at least those of them who want to be taken seriously as jurists. Consequently, the indications from today’s hearing in Washington, D.C., federal district court are that Judge Tanya Chutkan will rebuff the 14 blue states that have asked her to block the Trump administration’s scrutiny of federal data systems.
You’ll remember Judge Chutkan as the Obama appointee who presided over Biden DOJ special counsel Jack Smith’s 2020 election-interference case against Donald Trump. Her hostility to the now-president was evident throughout those proceedings (indeed, even before the proceedings, she bashed Trump in commentary while imposing sentences on some January 6 defendants).
It seems apparent that Chutkan’s heart is with the Democratic state attorneys general who’ve sued to prevent access to the data systems from being given to the Department of Government Efficiency (DOGE) led by Trump confidant Elon Musk. The judge has expressed sympathy for the blue states’ pose of alarm over Musk’s access to the sensitive government records and has treated as serious the states’ claims that DOGE is making personnel decisions about government employees — in particular, to eliminate their jobs.
Yet, this is political theater, banking on both recent polling that indicates Musk is unpopular and the hope that Democrats can dupe the public with their story line that Trump is letting Musk run the country. Legally, it doesn’t alter the fact that Trump was elected president and can consult with whomever he chooses regarding how the government operates.
In reality, Musk is not an outsider being given access to the administrative state’s deep dark secrets; he is a special government employee appointed by Trump. DOGE is a component of the Executive Office of the President: an overhauled version of an agency initially established by President Obama (to deal with digital issues responsible for the troubled rollout of Obamacare). While their media allies persist in parroting claims falsely suggesting that Musk and DOGE staffers are independent actors, they are executive officials who answer to the president. The president has the constitutional authority to consult such government employees and delegate them to inspect government records — after all, the chief executive is accountable to the public for the operation of the agencies whose records are being reviewed. (Wouldn’t it be nice if we knew as much about who was running the Biden administration as we do about DOGE?)
Plus, Musk has no authority to fire anyone or to cut government spending. He can make recommendations, but it is the president and his authorized subordinates who take action. Progressive Democrats would have you believe they are suddenly repulsed by the specter of unaccountable bureaucrats wielding uncheckable power (heretofore, their favored form of governance). What they mainly are, though, is very unhappy that Trump won the election and that, as chief executive, he is laying bare what the government has been up to — which could create political pressure to both streamline government and make its spending more transparent. In that regard, Democrats are not nearly as worried about what records Musk has access to as they are about what he says publicly regarding those records.
Consequently, at Monday’s hearing, besides emoting about what she regards as DOGE’s unpredictability and “scattershot” approach, Judge Chutkan was irritated that Justice Department lawyers were unwilling or unable to say how many government employees had been fired in the last few days and how many would be fired in the next two weeks. But that’s a sideshow: Musk is not firing anyone; and even if Trump is taking at least preliminary steps to pare down the federal workforce, his authority to do that does not bear on the issue in the case: the propriety of DOGE’s scrutinizing federal records.
That’s why, despite all the heavy breathing, Chutkan has thus far declined to grant the blue states’ request for a temporary restraining order to block DOGE’s access to the records. To grant such an application, no matter how temporarily, would be tantamount to saying the chief executive may not study the inner workings of executive agencies and officers for whose activities he is accountable. That would be absurd and counter-constitutional.
Judge Chutkan has signaled that she will rule on the states’ application in the next day or so. I would expect her to continue echoing the Democrats’ fretting about the Perils of Elon . . . but then to shrug and say there’s nothing she can do about it.