A Manhattan Federal Court judge on Friday extended the temporary restraining order that bars staffers from the so-called Department of Government Efficiency from accessing US Treasury Department data—which attorneys general from New York and other blue states have slammed as an unlawful threat to privacy—while she considers whether to impose a longer-term injunction.
After hearing some two hours of arguments, Judge Jeannette A. Vargas told lawyers for New York and allied states, and their opponents from the Department of Justice, “I do find good cause to extend the TRO as modified.” Vargas said she would soon issue her decision, but not today, to “give the court time to consider” the issues.
While the proceeding largely maintained the status quo, it also lifted the veil on just how little is known about DOGE’s access to information—and where it went.
When Vargas asked Jeffrey Oestericher, the Justice Department attorney representing Trump, on Friday whether any DOGE-accessed information had been shared outside of the Treasury Department, he said: “The short answer on that is we don’t presently know.”
“We’re performing a forensic analysis. What we can tell from the forensic analysis thus far is there were emails sent outside Treasury,” Oestericher said. “We do not know [the] content.”
Vargas asked: Wasn’t this problematic from a privacy standpoint?
“The short answer is no,” Oestericher said.
“During this time that the DOGE team members had access to this information, there were extensive mitigation efforts in place to prevent this precise harm.”
But Oestericher admitted at another point, “We candidly admit that there was some measure of increased risk, but we took all appropriate mitigation measures to mitigate that risk as much as possible.”
Vargas’ decision came six days after New York and allied litigants were granted a temporary restraining order that ultimately prohibited the Treasury Department from giving DOGE hires and special government employees access to sensitive data and computer systems. Donald Trump tapped Elon Musk to head DOGE, an agency the president created under the auspices of rooting out fraud and governmental waste—despite a dearth of evidence indicating fraud.
In issuing that temporary restraining order early February 8, Judge Paul A. Engelmayer said that the states suing Trump and Treasury Secretary Scott Bessent would “face irreparable harm in the absence of injunctive relief.”
Engelmayer noted that Treasury’s new policy, enacted at Trump’s direction, appears to allegedly “[expand] access to the paytment systems of the Bureau of Fiscal Services (BFS) to political appointees and ‘special government employees.’”
This, Engelmayer reasoned, represented a “risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking.”
Engelmayer also said in his written decision that the states suing over Treasury’s policy change “have shown a likelihood of success on the merits of their claims, with the States’ statutory claims presenting as particularly strong.”
The complaint against Trump and Bessent repeatedly cited WIRED’s reporting that revealed how a 25-year-old engineer named Marko Elez, with ties to Musk, enjoyed read and write access to two Treasury Department systems responsible for virtually all payments made by the federal government. Tom Krause—who is on the DOGE team despite being CEO of Cloud Software Group—was also granted access to these capabilities.
Two sources told WIRED that Elez’s privileges allowed him not just to read but also write code for two of the most sensitive US government computer systems. These include the Payment Automation Manager and Secure Payment System at the Bureau of the Fiscal Service (BFS). These systems, which are kept on a secure mainframe, control government payments that total more than 20 percent of the US economy, WIRED previously reported.
In court papers filed February 13, New York and allies allege that Trump and his Treasury Department don’t even contest that states have a “clear and reasonable interest in protecting their confidential bank account numbers and other sensitive financial information, including details and amounts of payments, from unauthorized disclosure.” But this information was disclosed to two DOGE members, they claim, violating “numerous laws and regulations.”
New York and other states argued in that same filing that BFS’s development of “mitigation strategies” to reduce risk was testament to the “substantial and imminent” danger. They say that at least on one occasion, Elez was “mistakenly provided with ‘read/write permissions instead of read-only.’”
“But even with the more restricted ‘read-only’ access, Elez still had ‘the ability to view and query information and data’; in other words, he had access to the States’ sensitive financial information.” Despite the fact that Elez resigned when asked for comment by The Wall Street Journal about racist social media posts, the government didn’t provide any reassurance that he didn’t participate in improper activity, New York and its allies alleged. (Meanwhile, Musk suggested in a post on X, his social media platform, that Elez would be rehired, writing: “He will be brought back. To err is human, to forgive divine.”)
Andrew Amer, an attorney in New York state attorney general Letitia James’ office, said Friday that Elez and Krause “have no lawful job duty to access this information.”
Despite the government’s insistence that Elez was in a “sandbox environment” when he had access to the code, which they insist minimized risk, Amer said that wasn’t all that comforting.
“We know that the same engineer took screenshots of the data in the data system and that he may have given those screenshots to his supervisor,” Amer said.
Amer said the Justice Department’s insistence that Krause only had “over-the-shoulder access” didn’t inspire much confidence either.
“The fact that we don’t know if any information went beyond Treasury is a red flag that causes concern about the ethics issue,” Amer said. “This is especially important, as we do have people, especially Mr. Krause, who is simultaneously employed elsewhere outside Treasury.”
“You have somebody who’s been given access to source code within the bureau whose other job is CEO of one of the world’s largest software companies.”
“We are here because the states’ banking information has been accessed— that has happened,” Amer said at another point in court. “We know that the people who accessed it have been somewhat careless in the way they handled it.”
Amer also rejected any notion that DOGE acolytes’ access was normal. “This was not a Treasury function, this was building a new automated process to apply an ideological litmus test to funding requests. There’s nothing typical or normal in terms of Treasure functions about that.”
Trump’s camp has contended that his opponents are trying to thwart the White House’s right “to exercise politically accountable oversight of agency activities and to implement the president’s policy priorities.”
Treasury Department officials are responsible for liaising with the United States DOGE Service, which needs to have access to BFS systems, they argue, “to perform their Presidentially-directed mandate of maximizing efficiency and productivity, including ensuring data and payment integrity with respect to the 1.2 billion transactions and over $5 trillion in outlays handled by BFS,” they said in court papers.
Red states including Florida, Georgia, and Alabama have also entered the fray to show support for Trump. They contend in court papers that blue states’ opposition to DOGE meddling is unconstitutional. “This case involves an unprecedented assault on the separation of powers and the President’s authority under Article II of the Constitution,” they wrote. “Ultimately, Plaintiffs here are upset because one set of bureaucrats in the Executive Branch have access to data that they believe only other bureaucrats in the Executive Branch should have access to.”
“This type of fiddling around with the President’s prerogatives asks this Court to insert itself into core Executive decision-making regarding policy and personnel. The President is working to combat what former President Biden’s administration identified, at minimum, as hundreds of billions of dollars in fraud,” they wrote.