The Elon Musk Paradox
It’s the Elon Musk paradox. On X, he’s a noble gladiator with a mission direct from President Donald Trump. He brags at length about using his “Department of Government Efficiency” to dismantle federal bureaucracies, cancel taxpayer-funded programs, and transform Washington’s institutions.
Legal and Political Ramifications
But in court — and increasingly in public messaging — the White House claims he’s really just a run-of-the-mill adviser. Musk is an “employee” with no direct connection to the DOGE operation and no decision-making power, a White House official swore this week in response to one of the many lawsuits challenging what Musk and DOGE are doing.
Officially downplaying Musk’s authority — even as the ultra-wealthy CEO himself amplifies it — may have both legal and political benefits. After all, Musk’s consolidation of power might not just run afoul of the Constitution; it also could undermine some of the populist rhetoric that propelled Trump to victory in 2024.
The political pitfalls are already emerging in a new poll out Wednesday that shows 55 percent of voters think Musk has accumulated too much power.
Musk's Role in Trump's Administration
“I think it is by design,” New Jersey Attorney General Matt Platkin, a Democrat, said of the mixed messages about Musk’s role. “They don’t want to say what his real role is because they don’t want to admit that an unelected billionaire is running the federal government right now.”
On the other hand, the Musk murkiness allows Trump to operate in a familiar zone of unpredictability, impossible to pin down by adversaries and even allies while he asserts unprecedented power.
On Tuesday, the message from the West Wing was that DOGE just makes recommendations that are delivered to Trump and carried out by cabinet secretaries.
Legal Challenges and Uncertainties
“A president wins an election and he appoints staff, including myself … including Elon Musk,” said Stephen Miller, Trump’s deputy chief of staff for policy. “And those staff report to him.”
Yet by Tuesday night, Musk was seated alongside Trump for a pre-taped primetime Fox News interview, describing a special relationship the two men share and his efforts — with Trump’s blessing — to essentially enforce Trump’s executive orders to remake the federal bureaucracy.
The role of Musk and DOGE has animated the early weeks of Trump’s second term, with “DOGE” becoming shorthand for the spasms of chaos and disruption engulfing federal agencies adjusting to new management.
Legal Scrutiny and Public Perception
Musk, on Fox News, called it the “thrashing of the bureaucracy.” More than a dozen lawsuits call large aspects of the initiative blatantly illegal.
In a slew of emergency hearings in those lawsuits, federal judges have grasped for more details about what, precisely, Musk and DOGE are doing. At times, these judges, like Platkin, have suggested the ambiguity is intentional. On Tuesday, a federal judge suggested that Musk’s position — and the entire DOGE operation — may be unconstitutional given “what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight.”
U.S. District Judge Tanya Chutkan also rapped Trump administration attorneys for what she suggested was a misleading claim that Trump has not given DOGE a role in personnel decisions.
Transparency and Accountability
Chutkan, however, declined a request from blue states to immediately order Musk and DOGE to cease meddling in federal agencies. Part of the judge’s rationale for declining to grant that relief was the “uncertainty” about what DOGE is doing and what it will do next.
In other DOGE-related lawsuits, the lack of clarity has likewise left legal challengers without evidence of where the office may strike next, making it nearly impossible for courts to intervene in advance, particularly when many of the actions are blessed by cabinet secretaries and Trump himself.
Operational Challenges and Public Disclosures
A month into Trump’s second term, the official “administrator” of DOGE is still unknown. The group’s specific role in efforts to dismantle agencies, terminate employees, and cut programs is still unclear. And its central staff is housed in the Executive Office of the President, which contains some components that courts have held to be immune from the Freedom of Information Act. Musk, for his part, has been designated as a Trump adviser not part of that formal structure.
Musk has rushed headlong into the information vacuum with a bombardment of posts on X, the social media platform he owns. At times, it’s unclear if he is speaking for the government or as a private citizen — such as when he calls for federal judges to be fired or impeached or when he comments openly on political dynamics in foreign countries. Following a Wired report identifying several DOGE staffers, Musk wrote a post on X that appeared to call the public identification of DOGE employees a criminal act.
Public Perception and Legal Challenges
The lack of transparency flies in the face of Trump and Musk’s claims that they are operating under total sunshine.
Democrats assailed as farcical the White House’s claim that Musk isn’t the DOGE leader.
“It was the most incredible, unbelievable, implausible flip-flop of the second Trump administration,” said Norm Eisen, a Democratic lawyer who filed one of the lawsuits against Musk arguing that he has amassed so much power that, without confirmation by the Senate, his work exceeds constitutional limits. “They recognize they have a serious legal problem, that it undermines all of the Musk decision-making, and that they’re in trouble legally. But they can’t fix it with a Humpty Dumpty-style declaration that Mr. Musk is whatever kind of government employee they claim. It just doesn’t work that way.”
Legal Interpretations and Public Scrutiny
Anne Weismann, an attorney who has spent years pressing lawsuits for transparency in the federal government, agreed that the Trump administration’s descriptions of DOGE have been shape-shifting in response to legal threats.
“I think it’s pretty clear that they’ve been bobbing and weaving and pretty much reacting to all the different lawsuits,” Weismann said.
Asserting that Musk is outside the DOGE operation but within the White House may be an attempt to try to claim greater secrecy for his communications with Trump or other top officials, Weismann said. But she said there’s a disconnect between Musk’s public boasts about agencies, contracts, and federal jobs that DOGE has eliminated and the administration’s legal filings suggesting DOGE is simply playing an advisory role.
Challenges and Legal Complexity
“My view is they can call it whatever they want, but it is functioning as an agency,” Weismann said.
Ironically, some of the administration’s actions to protect DOGE’s operations from legal challenge could wind up exposing it to more sunlight, advocates said. To assuage concerns about outsiders having access to sensitive government data, the administration has designated many DOGE staffers as “special government employees” at specific agencies.
But that means emails and chat messages by those employees should be subject to FOIA, even if courts ultimately rule that Musk’s interactions and those of DOGE aides attached to the White House are not, attorneys said.
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