Musk’s Status in Government May Violate Criminal Law
His wealth should not be able to buy a conflict of interest waiver
By Walter Shaub
Elon Musk’s status in our government is unclear. But whether he is a regular government employee, a “special government employee,” or a volunteer, the primary conflict of interest statute prohibits him from participating in any particular matter affecting his financial interests or the financial interest of anyone whose interests are imputed to him, such as a spouse or a general partner. He cannot work on any particular matter affecting a company in which he holds either stock or any other form of ownership interest.
Musk might seek a waiver of conflicts laws, but any waiver request would be subject to a strict standard, such as the one applicable to all executive branch employees at 18 U.S.C. § 208(b)(1). Under that provision, a waiver is available only if the employee receives a written determination by the person who appointed the employee that the employee’s financial interest in a particular matter “is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee.” That is a high standard, rarely granted.
Significantly, the waiver cannot be issued retroactively. The law states that it must be issued “in advance” of an employee’s participation in a particular matter. That is important because of the nature of DOGE, which makes even its volunteers subject to the criminal conflict of interest law. According to the administration, DOGE is not organized as a federal advisory committee. Instead, administration officials have claimed it is a “temporary organization” under 5 U.S.C. § 3161. That means that, even if Musk was a volunteer of the “temporary organization” called DOGE before he became a Special Government Employee, he was covered by the conflict of interest laws as a volunteer. That makes it extremely relevant to know whether he has a conflict of interest waiver, precisely when he obtained it and who issued it. Again, by law, it cannot apply retroactively.
We do not know if Musk has received a conflict of interest waiver. If he has and the administration is claiming the waiver is justified, officials would have to explain why his financial interests in particular matters in which he participates are “not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee.”
Frankly, it is hard to see how a conflict of interest waiver for Musk could be justified. The conflict of interest law applicable to federal officials is a criminal law. Any claim by the Trump administration that wealthy people should be excused from complying with criminal laws just because they’re wealthy would be an outrageous, elitist insult to hard working Americans across the country. That’s the stuff of Russian oligarchs. Wealth should not be able to buy permission to ignore a criminal law. Elon Musk is the world’s richest individual who is a government contractor. The American people have every reason to want their tax dollars and the resources of their national government to serve only their interests, not the interests of a billionaire government contractor who now seems to have stuck his fingers in everything the government does. Musk’s stupendous conflicts of interest are a threat to national security, as is his seemingly unsupervised access to sensitive systems containing the personal information of millions of Americans.
Trump administration officials owe Americans answers about Musk’s status, his compliance with conflict of interest laws, any conflict of interest waiver he may have received, and the nature of his access to the personal information of individual citizens. The names of the mysterious DOGE affiliates running around with the black backpacks, their employment status, and their background investigation status are also among the details that the administration has concealed from us. The White House could, at least, start by telling us whether Musk works for the White House or another agency, such as the Office of Management and Budget, and whether he is the head of DOGE. Even that much is unclear.
Walter Shaub is the Former Director of the U.S. Office of Government Ethics
Well, my friends, we are all on the receiving end of a bad Marvel comic-book character's nihilistic whims. I thought that the early pandemic was the most terrifying period of my life--indeed, I had never had a terrifying phase--but this is more terrifying. One wealthy man has our president on puppet strings, and he intends to take away our rights, our livelihoods, and our democracy.
As Congress sits idly by.
Alas, being against the law doesn’t matter when the Administration and its supporters are operating *outside* the law. Where are the checks that should be throwing a wrench in what is being done?
As horrible as all of this is, P2025 was the warning that *should* have prompted the organization and establishment of the necessary barriers. But the alarm couldn’t be sounded loud enough to be taken seriously.
I’m fighting a battles against hopelessness here. It would be a huge help to see/hear that the cavalry has been mustered and put to work.