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This episode is brought to you by Progressive Insurance. Fiscally responsible financial geniuses. Monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations. For the first time ever, a federal judge has ordered Elon Musk to give sworn testimony under oath about Doge, his role, what it's doing secretly behind closed doors to decimate the federal workforce and federal funding. And I can't think of a better judge to have ordered it than Judge Tanya Chutkin, the judge in the D.C. circuit Court who presided over Donald Trump's election interference criminal trial. Michael Pop I'm here for it. So are you on the Midas Touch Network and on Legal AF. Let's get to Judge Chutkan's new order. Now, in 24 hours, two different judges in the same courthouse, Judge Cooper and now Judge Chutkan, have ordered that Musk and Doge disclose their documents and information and testimony ultimately to the American people. Earlier in the day, I did a hot take about a Judge Cooper. Judge Cooper was the first judge who ordered that doge, the Department of Government Efficiency Services, whatever that is, is it is a quasi agency of the federal government, not, not a special adviser, just a special adviser to Trump, and ordered that documents and information demanded by a citizens and ethics group be disclosed to the American people under a Freedom of Information Act FOIA public records request. That's a big deal. It's the first time a federal judge announced that DOGE was an agency exercising independent agency power and therefore was out from under the executive privilege and had to provide documents pursuant to a public records request. We operate, or are supposed to operate, government in the sunshine. Sunshine being the best disinfectant. Give us the documents. But then on the heels of that, Judge Chutkan went further and is the first judge to order that Elon Musk give sworn testimony under oath in the form of an interrogatory. Although she didn't order depositions, which is a live question and answer period like, like court testimony, she did order that Musk himself respond to these questions under oath, signed under penalty of perjury. It's a big deal. Let me break it down for you. There's a case that we've been covering closely for the Midas Touch Network and for Legal AF brought by the state of New Mexico and a series of other states arguing that Elon Musk, on behalf of the government and Donald Trump, was illegally and unconstitutionally cutting off funding. They, as states, claimed that they were injured and harmed as a result, and they moved originally for a temporary restraining order to stop this cutting of the funding. The judge had some doubts at the time we reported on them about whether they had the requisite, what we call in the injunction business, irreparable harm, meaning that if the injunction was not put in place, things were going to happen that couldn't be fixed with money at a later time, so the judge needed to block or enjoin it. Now, some people who are more casual watchers of legal and political news or developments may think that injunctions are easy to get because there's so many that have been obtained against the Trump Administration, I will tell you, as a 35 year practitioner, they are hard to get over that threshold. They are extraordinary remedies that judges don't just hand out. The reason there's so many injunctions that have been handed out more than 30 by judges is because they find that it's more likely than not that Donald Trump and his administration have violated the Constitution or the Administrative Procedures act or both. And they have enjoined temporarily, preliminarily, permanently. Depends on the, on the posture, administrative stays. You, you know, you, you name it, that's what's happened. But Judge Chutkan, just because you don't win a temporary restraining order doesn't mean you can't win on the ultimate merits of the case. And now we're into the merits of the case and the preliminary injunction phase of Judge Chutkan's case. And the other side, State of New Mexico and others said to the judge, we have very limited questions and requests for information we want from the other side in order to prove our case. And the judge says, well, what are they? And we call that phase. There's a little bit of a legal AF breakout session here. We call that phase in a case, the life cycle of a case discovery. Discovery is the exchange of information between the two litigant parties in advance of a trial or a hearing. It can take many forms. The ones that are in play here are the classic ones. A request for production, meaning I make a request to you to produce documents, information, digital or hard copy format by category. An interrogatory, which is the, the new order against Elon Musk for the first time. That's sworn testimony under oath, in writing. That's an interrogatory. Then you have a request for admission, which is not technically discovery, but close to it, where you ask, you, you, you make a series of statements and you ask the other side to admit or deny it. And there's a reason for that we'll talk about at another time. Here the plaintiffs were ready for Trump and Elon Musk and came to the judge with a very meager request. Only six requests to produce. I've been in cases where there's hundreds, only five interrogatories, only five requests for admission. And they asked for depositions, two of them only. And the judge and Donald Trump is also a party to the case. The judge, and I'm going to read to you from her order in a minute, said, I think the discovery is surgical. I think it's limited. I think it's appropriate given the preliminary injunction and trial on the merits that I'm going to do in the case about whether this funding cut was lawful or not. And I'm going to, with some modifications, I'm going to grant the motion for expedited discovery. Donald Trump filed a motion to dismiss his administration did of the same case. Judge says, yeah, I'll consider that too, but we're going to wrap all this together in one sort of proceeding, let you guys brief it the way you've proposed. But we're going to do this limited discovery with one exception. The judge for now said, I'm not going to have Donald Trump himself as president be subject to these discovery requests. Why? Because the judge was concerned that this would automatically implicate the separation of powers, executive privilege, and she wanted to tiptoe around that minefield. She'd been sort of burned before by the Supreme Court in how she handled the immunity aspect of Donald Trump's criminal prosecution, and I'm sure she's being very mindful of that and of the case law and said, you know what the way around this is, the other side's not asking for emails and communications between the President and Elon Musk. So I think we're out from under the executive privilege issue. But that is where we go next.
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As we've reported on Legal AF on a number of occasions, including this past weekend with Ben Mesalis and me, we said that the fight that's brewing and that's going to spill out into the public really quickly and now even more, with more accelerant on it because of Judge Chutkan's order. Is the Trump administration arguing that Elon Musk is just a mere advisor, as we've heard his lawyers say in court and his press secretary say out loud. And it's just giving Donald Trump advice. But the decision making is being done at the agency level or by Donald Trump. We know that's a lie. We saw in the way that the earlier order by Judge Cooper in the day methodically went through all the press reports, all the social media posts, all the speeches and shout outs by Donald Trump to show the role of Elon Musk, that he's exercising independent agency judgment. He's not just a special advisor. So here in another way, we're watching two different judges sort of handle a similar problem, right? The 800 pound gorilla in the room, which is, what do we do about executive privilege? We know that Donald Trump's going to raise it. So this is the way that Judge Chutkin tried to avoid it. Don't. No emails, no communications to the two of them. And Donald Trump's not subject to this particular, to this particular set of requests. And I'm not going to allow the depositions, which are question and answer under oath, as if you're in a courtroom. That live testimony thing at the moment there, consider she has less control over questions asked and answered. And so the way the judge has analyzed it is on page, I'll summarize. On page four of her order, the court concludes that granting expedited discovery is in the best interest of all parties. Plaintiff's discovery requests target information necessary to resolve their forthcoming preliminary injunction motion. The court recognizes that discovery into the Executive, particularly the White House and senior advisers, imposes a heightened burden. Accordingly, the court does not authorize all the discovery. The plaintiffs request imposes several additional restrictions on those scopes and extends defendants time to respond. With. With those adjustments, the court finds expedited discovery is reasonable and necessary to evaluate the plaintiff's request for injunctive relief. In other words, she needs this information in order to, to make her decision as a judge over the merits of this case. So then she says on page seven, or she declares on page seven, that plaintiff's document request seeks information regarding Doges and Musk's involvement in eliminating. This is a document side, right? Information side. They're seeking the categories of must involvement in eliminating or reducing the size of federal Agencies seems reasonable. Terminating or placing federal employees on leave. We know he's doing that. Canceling, freezing or pausing federal contracts, grants or other federal funding that's at the heart of the matter. And obtaining access success using or making changes to federal databases or data management systems seems like the core issues that are implicated by Elon Musk and Doge's actions. The judge went on to say on page eight evidence that defendants eliminated agencies that work with plaintiffs, terminated employees responsible for managing programs with plaintiffs, the plaintiffs, again, are states or canceled contracts with plaintiffs is relevant to whether defendants exceeded their statutory and constitutional authority. Then she goes on to the bombshell. But she kind of slips into the back end of her order that she's going to make Elon Musk sit or respond under penalty of perjury and give testimony in the form of an interrogatory response. And so she says on the interrogatory side that she goes through the analysis that the information that is sought from Elon Musk on those very same categories also will assist her in her ability to determine whether the injunction is appropriate or not. And so at the end of the day, she then says, you want to do your motion to dismiss, Trump, you can do your motion to dismiss. Now, let me just tell you quickly why this is so important. Elon Musk has not yet had to stand and deliver under penalty of perjury in a courtroom, through it, through a discovery process and state. What we've all seen is the obvious, what his role is, the ax that he's swinging, the worlds that he's destroying. He'll have to now. Except we know the Trump administration is going to argue, is going to move to reconsider. This is going to move for an a try to take an appeal to the D.C. court of Appeals arguing executive privilege. Executive privilege, executive privilege. And that argument goes something like this. Musk is just an advisor. The president needs to operate and use his executive action and executive function with advice of people around him. He's getting advice from Musk. There's a privilege around that. And therefore, Elon Musk should not be compelled to testify either in deposition or here in interrogatory or in a courtroom. Executive privilege, executive privilege. And I think my belief and my, my judgment is that Judge Chutkan has done the right thing about how she's tailored and narrowed these discovery requests. But now the fight, the rubber, meets the road on Musk's testimony. And I think we're going to see a quick appeal to the D.C. court of Appeals. I think it's going to be a win for the states. I think that they're going to support Judge Chutkan. Now we're going to see what Justice Roberts and Amy Coney Barrett do. They're the ones that matter in this. Anything related to presidential power, presidential executive privilege and the separation of powers is going to go, of course, the full court. But the only two that really matter are going to be Roberts and Amy Coney Barrett. We know that the three moderate members of the court are going to rule likely based on their prior jurisprudential approach. They're going to rule that Musk's got to give testimony. The other four on the right, right wing are going to rule opposite. And so now it's up to Amy Cody Barrett and Chief Justice Roberts. My gut is that there's not five votes to to find that Elon Musk can operate the way he's operating, post things on social media, be shouted out at joint sessions of Congress, have Donald Trump give him the power that he's given him. This moving at a speed, a velocity and an opacity. You can't see it and it's moving too fast. This is all obvious. This is going to lead the Supreme Court to force him to testify and get him out from under executive privilege. We see it with our own eyes. Now it's up to the Supreme Court to do their part. But the first step is judges like Cooper, judges like Chutkan making the rulings today. On one hand, DOGE is a agency for the purposes of Freedom of Information act request, FOIA Public Records act request. That's big. That's important. Now Judge Chutkin making Musk stand and deliver, giving sworn testimony subject to appellate review. I'm Michael Popak. You're here on Legal AAF and on the Midas Touch Network. Follow us here. Come over to the Legal AF YouTube channel. Hit the free subscribe button. Helping us continue to build as we march towards a million. We just crossed 500,000 in six months with your help. And then of course, we also have the Legal AF podcast, Wednesdays and Saturdays at 8pm Eastern Time right here on the Midas Touch Network. So until my next reporting, I'm Michael Popak. In collaboration with the Midas Touch Network.
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The intersection of law and Politics. Go to YouTube now and free subscribe at legal a FMTN. That's at legal AFMTN.
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