WASHINGTON, Jan 20 (Reuters) – Donald Trump’s government advisory panel, led by billionaire ally Elon Musk, will be sued soon after the incoming U.S. president is sworn in on Monday, the Washington Post reported, citing a copy of the planned complaint by a public interest law firm.
In a 30-page complaint obtained by The Washington Post ahead of its filing, the public interest law firm National Security Counselors says that the nongovernmental DOGE panel is breaking a 1972 law that requires advisory committees to the executive branch to follow certain rules on disclosure, hiring and other practices.
Shortly after the election, Trump tapped Musk and biotech entrepreneur Vivek Ramaswamy to lead DOGE in identifying government regulations and spending programs for the White House to cut. The group has already hired dozens of staffers as it works out of the Washington offices of Musk’s company SpaceX, sending emissaries across U.S. agencies to put together a list of recommendations to execute in tandem with the administration and often communicating on the encrypted messaging app Signal.
The lawsuit alleges that DOGE meets the requirements to be considered a “federal advisory committee,” a class of legal entity regulated to ensure the government receives transparent and balanced advice. These groups, known as FACAs, are required by law to have “fairly balanced” representation, keep regular minutes of meetings, allow the public to attend, file a charter with Congress and more — all steps that DOGE does not appear to have taken.
“DOGE is not exempted from FACA’s requirements,” states the lawsuit, written by Kel McClanahan, executive director of National Security Counselors. “All meetings of DOGE, including those conducted through an electronic medium, must be open to the public.”
Musk did not respond to a request for comment.
But the crusaders for small government are likely to resist the effort to force DOGE to comply with requirements for federal advisory groups. Musk routinely criticizes the concept of “lawfare” on social media, arguing his opponents use obscure or technical legal claims in an attempt to delegitimize him or stop his companies for political reasons. He has argued that a surge in U.S. spending and regulations are throttling the economy, which he and Ramaswamy say represents an existential threat to the nation.
Sam Hammond, senior economist at the Foundation for American Innovation, who has been supportive of DOGE’s efforts, said the initiative will primarily implement ideas within the executive branch and White House, which he said would exempt it from FACA requirements. If Trump does treat DOGE as a FACA, then it should follow the required reporting rules. But for now, he said, “DOGE isn’t a federal advisory committee because DOGE doesn’t really exist. DOGE is a branding exercise, a shorthand for Trump’s government reform efforts.”
Hammond added: “The president is allowed to take advice from external experts without creating a formal advisory committee.”
FACA has proven controversial at times, as some have critics have argued it imposes overly broad and restrictive requirements on private citizens who try to improve the federal government.
The courts have long tried to balance a desire for transparency with the practical needs of the White House and limits on the speech of private groups. In 1989, for instance, the Supreme Court dismissed an attempt by a public interest group to require the American Bar Association to meet FACA’s guidelines, because the president consulted that group on judicial nominations.
“Although its reach is extensive, we cannot believe that [FACA] was intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice,” the court wrote at the time.
In 1993, then-first lady Hillary Clinton was accused of violating FACA through her leadership of a commission appointed by President Bill Clinton to study health care reform, with critics claiming she was not an official member of the government. The U.S. Court of Appeals found, in her favor, that the first lady could be considered a government official and therefore exempt from FACA. But in a similar 2002 case, the courts largely sided with the Natural Resources Defense Council, which had argued that advisory panels on nuclear waste and cleanup should be subject to FACA.
The DOGE lawsuit lists as its primary co-plaintiffs Jerald Lentini, a local elected official in Connecticut and an attorney for National Security Counselors who sent an application to join Musk’s group, and Joshua Erlich, who owns an employment law firm that regularly represents federal employees. Erlich also filed an application to join DOGE, which stated he was applying because the body “does not currently have an individual who will speak on behalf of government workers and their interests,” the lawsuit states. Both applications were ignored.
Citing public reporting, including in the New York Times and The Post, the lawsuit identifies 17 people affiliated with DOGE, including tech executives Marc Andreessen, Baris Akis and Antonio Gracias.
“Not a single member of DOGE is a federal employee or represents the perspective of federal employees,” the lawsuit states.
The lawsuit asks the court to find that any report produced by DOGE “does not reflect the views of a lawfully constituted advisory committee” and to bar Musk, Ramaswamy “and all of DOGE’s subunits” from conducting any further official business until it complies with FACA. The lawsuit also states that the White House should be barred from implementing DOGE’s recommendations.
“We’re not trying to say DOGE can’t exist. Advisory committees like DOGE have been around for decades. We’re just saying that DOGE can’t exist without following the law,” McClanahan said in a statement to The Post, pointing to similar work he said was done by the America First Policy Institute, a Trump-supporting group. “If DOGE turns around and complies with FACA, the case is over.”
The second to last paragraph taken from The Washington Post
