DOGE-ing Questions in Federal Court

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.”

The Wall Street Journal reports that Elez resigned from his position on Thursday, after the paper sought comment from the White House about his connection to a now-deleted social media account that “advocated for racism and eugenics.”  Earlier today, however, Musk said he “will be brought back.” 

Regardless, at the time of the Wednesday hearing, Elez was employed by the Treasury Department—and Humphreys’s statements about Elez’s access to the payment system prompted some additional questions from the judge. The questions related to a letter a Treasury official sent to members of the Senate Committee on Banking, Housing, and Urban Affairs on Feb. 4. The letter, which was penned in response to a request for information from Democratic members of the committee, acknowledged that Krause had access to the payment system. But it conspicuously omitted any mention of Elez.

Pressed by the judge to explain this omission, Humphreys pointed to the letter’s assertion that “Treasury staff members working with Tom Krause” will have “read-only access” to the payment system data. That’s consistent with the facts, Humphreys contended, because Krause supervises Elez and both men are special government employees within the Treasury Department.

What, then, of Elon Musk’s access?

On that point, Humphreys insisted that information from the payment system is not accessible to third parties outside the Treasury Department—including Elon Musk. “The crux of the plaintiff’s complaint, I believe, is that this information in Treasury payment systems is being improperly disclosed to third parties,” Humphreys said. “And again, my understanding is that that is not accurate.”

As for Musk’s role, Humphreys explained that he is “associated” with the “United States DOGE Service,” which was established within the Executive Office of the President. Musk has been designated as a “special government employee” within the Executive Office of the President, he said. “Our understanding is the information derived from the systems at issue in this case is not being transmitted to him outside of the Treasury Department,” he told the judge.

Humphreys later reiterated this point, stating: “As far as we know, the people sitting in the Executive Office of the President do not have access to the information within the Treasury Department.”

Two observations are notable regarding Humphreys’ presentation on this point. 

The first is that Humphreys gave the impression that, at the time of the hearing, he may not have been fully apprised of the underlying facts. At one point, he told Judge Kollar-Ketelly that he spent the hours leading up to the hearing trying to get answers regarding the facts. “Our factual confirmation so far this morning has been to try to assure ourselves and the court that information is not being illegally disclosed, to our knowledge,” he said. 

Notably, Humphreys took great pains to qualify his responses to the judge’s questions, hedging answers with phrases like “As far as we know...,” “Our understanding is…,” and “I believe…”. To be sure, that kind of qualifying language is not unusual to hear in court. Under the rules of professional ethics, a lawyer owes a duty of candour to the tribunal. While Elon Musk can mislead his followers on X without apparent consequence, a lawyer standing before a judge has a bar license to protect. That’s why some litigators tend to qualify factual representations they make in court almost out of habit. Still, during the hearing on Wednesday, Humphreys’ qualifying language was both frequent and conspicuous.

A second observation is that Humphreys used present-tense verbs when responding to the judge’s questions about third-party access to the data. The information “is not” being transmitted outside the Treasury Department, he said. People sitting in the Executive Office of the President “do not” have access to the data, he claimed. And so on. While a transcript of the hearing is not available to me at the time of this writing, I cannot recall any instance in which Humphreys stated that information accessed by Elez and Krause has never been disclosed to a third-party.

None of which is to suggest that Humphreys intentionally misled the court.  Perhaps his verb tense was coincidental. Or perhaps it reflects, as discussed, that his knowledge of the facts appeared to be incomplete. I do not know. The point is that Humphreys seemed to exclusively address the question of what’s happening now, leaving open the possibility that third-party disclosures occurred at some point in the recent past.

Question #2: What kind of access privileges do DOGE associates have?

That brings me to a second factual issue that the government’s assurances have done little to resolve: Do DOGE associates have “read-only” access to the payment system, or something more?

Administration officials have suggested that it’s the former. Earlier this week, White House press secretary Karoline Leavitt told the New York Times that the access granted thus far was “read-only,” meaning that staff members could not alter payments. Later, a Treasury Department official wrote in a Feb.4 letter to Congress that staff members working with Krause “will have read-only access to the coded data” in the payment system (emphasis added). 

The next day, Humphreys told Judge Kollar-Kotelly that Elez had “read-only” privileges. “I believe that he has read-only access to the system, Your Honor,” he said. He did not say whether staffers previously maintained more extensive access privileges.

Leading up to the hearing, however, some reporting suggested that Elez’s access privileges at one point included not only the ability to read coded data but also to write code within the system. Following Wired’s initial story reporting the news last Saturday, Talking Points Memo’s Josh Marshall further reported that Elez “has already made extensive changes to the code base for these critical payment systems.” 

Later, Nathan Tankus followed up with a report in which a source claimed that Elez’s permissions were changed to “read-only” on Wednesday—the same day as the hearing before Judge Kollar-Kotelly, and just one day after the Feb. 4 letter to Congress stated that staff members working with Krause “will have” read-only access. Wired then confirmed Tankus’s report.

Additional reporting by CNN suggests that Krause at one point sought to “immediately shut off all USAID payments using the department’s own ultra-sensitive payment processing system.” The plan was opposed by the then acting secretary of the Treasury Department, David Lebryk, leading to his sudden departure from the agency where he had worked for more than 35 years.

What’s more, while Humphreys told Judge Kollar-Kotelly that staffers currently have read-only access, he seemed to equivocate when she asked whether anything had been done with the records in the past.

JUDGE KOLLAR-KOTELLY: “So the plan you talked about—fraud, waste, etc.—that’s a plan going forward? And nothing has been done with the records relating to that, to date?”

HUMPHREYS: “I don't know that I can say that nothing has been done, Your Honor. I guess my point is that…the allegations that information is being shared with third parties outside of Treasury is incorrect.”

At another point, the judge asked whether any of DOGE’s plans had been “implemented.” After a long pause and some back-and-forth with the judge, Humphreys again provided a non-responsive answer:

If I may, Your Honor, I mean, the crux of the plaintiffs’ complaint, I believe, is that this information in Treasury payment systems is being improperly disclosed to third parties. And again, my understanding is that that is not accurate. And so beyond that, I'm not sure that other DOGE activities are necessarily relevant to plaintiffs’ claims.

All of which is to say that, even if it’s true that Musk-aligned staffers currently have read-only access to the payment system, it’s not at all clear that they didn’t maintain extensive access privileges in the past.  Indeed, multiple reports suggest that DOGE-affiliated staffers at one point had the ability to alter code—a privilege that was apparently suspended only recently. And CNN’s reporting suggests that, at least initially, Krause wanted to use the payment system to directly block payments. 

Have DOGE staffers actually altered code? Have they actually used the payment system to block payments? I don’t know. And, at least for now, DOGE associates employed by the Treasury Department are limited to “read-only” access by order of Judge Kollar-Kotelly. But the Justice Department’s apparent reluctance to address whether DOGE associates previously did anything with the records certainly suggests that it’s worth asking the question.

Question #3: What exactly is DOGE’s role in all this?

Humphreys told Judge Kollar-Kotelly that Krause and Elez have “read-only” access to the payment system. He told her that none of the information in the system is being transmitted to Musk. In fact, he said, no information is being transmitted to any third-party, including anyone within the Executive Office of the President at DOGE.

All of which raises the question: If a 25-year-old special government employee in the Treasury Department can only “read” the payment system information, which he can’t then share with DOGE, what exactly is DOGE’s role in any of this? 

Judge Kollar-Kotelly appeared equally perplexed by this during the hearing on Wednesday. Is there a purpose for these individuals to have been made special government employees with access to the system? she asked. Is there some sort of plan for what they’re supposed to be doing with these records?

Humphreys explained as follows:

Our understanding is that DOGE sets sort of high-level priorities in terms of preventing waste, fraud and abuse, and protecting taxpayer dollars. But these special government employees are working at Treasury with that high level direction to prevent significant payment fraud that had been previously identified by the Government Accountability Office and continue work that had actually begun in the prior administration.

Maybe you need to walk me through this a little more, the judge replied. What role does DOGE have if they’re not part of the Treasury Department?

Humphreys tried again:

As I mentioned, Your Honor, I think setting sort of high-level priorities to say, ‘You, Treasury Department, identify fraud, waste and abuse and ensure the integrity of payment systems.’ And then special government employees within the Treasury Department carry out those goals, but without sharing the information that they see in the payment systems with third-parties.

None of this appears to make much sense as a strategy to develop or implement policy. And it certainly doesn’t track with how Musk has portrayed DOGE’s work on X, where he has promoted the idea that DOGE has uncovered massive amounts of previously unknown fraud and waste in government spending. 

Perhaps Humphreys will have a better explanation next time around. Judge Kollar-Kotelly has scheduled a Feb. 24 hearing on the plaintiff’s request for a preliminary injunction. In the interim, it’s likely that the public will learn more about DOGE’s activities within the Treasury Department, either through media reports or legal filings. For now, it’s fair to say that there’s a lot we don’t know about what DOGE is up to. And therein lies the problem.