Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
But this got us thinking, why are we treating the idea that Musk should do this as a fool’s errand, as something that’s hopeless? This is itself a sign of how far we’ve fallen. We can’t let that happen! So what do we do about it? We’re talking today about all this with Andy Craig, an expert in election law who has a new piece for The UnPopulist magazine detailing how Musk, as head of this new Department of Government Efficiency, has gone entirely rogue with no legal or constitutional authority whatsoever. Andy, good to have you on, man.
Sargent: The White House just announced they’ve designated Musk a special government employee. This is someone who works for the government for somewhat less time than an ordinary employee does and is not required to file a public financial disclosure report, but he’s subject to some ethics rules and can file a disclosure report if he’s going to have a big role in forming agency policy, which it looks like Musk will. Andy, can you walk us through what it means that Musk is a designated special government employee?
As an SGE, he is not subject to the full mandatory reporting requirements for his financial disclosures and conflicts of interest like other federal employees are, but he is subject to this nebulous [situation where] if he has a major policy role then it becomes mandatory. And exactly what that means and what triggers it is very fuzzy. Musk has spun up this mega government department he runs where he’s barking orders at the entire executive branch as if he’s deputy president. That’s very much not what an SGE is.
Craig: Not at all. In fact, it goes so far as to say this would be the kind of thing that is well outside even being a regular government employee. This is the kind of thing where you have to be a constitutional officer within the meaning of the Constitution’s Appointments Clause. And that doesn’t necessarily always require Senate confirmation, but there’s a strong argument that he, in fact, falls under the kind of thing that requires mandatory Senate confirmation.
Sargent: So generally speaking, Congressman Jamie Raskin has been particularly forceful on how lawless this all is. Listen to this.
Sargent: Andy, that’s basically the size of it. Wouldn’t you say Raskin nails it there?
It’s to the point [where] we’ve seen confrontations about this, like actual physical confrontations at these agencies and departments. He sends kids, in many cases. These are 19-, 20-, 21-year-old kids claiming they have authority to access all these things, to take over these computer networks, and [they] shut people out of them and tell people to go home. They should be refusing. If Donald Trump wants to come in through regular channels and exercise his constitutional executive authority, that’s something he can do, but Elon Musk is not that. He is not in anybody’s chain of command.
Raskin pointed out right away that this is nonsense. Then Raskin said, As a special government employee, Musk’s financial reports should be public, too. Raskin pointed out that Musk’s companies enjoy enormously lucrative federal government contracts. Again, to go back to what you said earlier, it’s not clear what’s required of Musk, but this is a good take down from Raskin, right? If Musk is so interested in public servants not getting bribed, then shouldn’t he want to meet basic disclosure norms? That’s his whole shtick. It’s all about cleaner government.
It’s hard to imagine anybody on Earth, probably, who would have more conflicts of interest in rooting around in the fiscal payment system of the federal government and acting with apparent authority to issue as if they were from the president orders to the entire government.
Raskin pointed this out as well, challenging him to say if he’s been given such a conflict of interest waiver. Bottom line, Andy, it seems to me is we just don’t know how Musk’s activities are impacting his bottom line. And we don’t know if he’s got a conflict of interest waiver or not. Do we? Do we know any of this?
Sargent: In your piece, you really got at the stakes of all of this as well. You argued that Musk and his allies are asserting basically extra legal control over the state without even the pretense of lawfulness, as you put it. This is fundamentally at odds with the way constitutional governance itself is supposed to work, and it’s treated as almost an absurdity that anyone would expect Musk and Trump to care about or respect constitutional governance and the rules upholding it. It’s treated as an absurdity that they would see this as a valuable thing in any sense. Andy, only one party, the Democratic Party, is demanding these most basic adherences to fundamental principles. What does that mean?
These things are illegal, these things are unconstitutional, and it matters to say that. It matters because that is the only grounds we have to oppose it on. That is how you rally opposition. That is how you get victories in the courts where there are still promising potential. We’ve seen, already, some victories in the courts. But it’s how you communicate to the general public. This is not politics as usual. We are in a state of constitutional crisis. And you can’t convey to people that this is an emergency, that this is being fought on those grounds if you don’t plainly say that’s illegal, that’s unconstitutional, and we’re going to fight to the hilt to stop it.
Craig: Absolutely. We saw immediately a Reagan appointee block the order reporting to revoke birthright citizenship, and he did so in no uncertain terms. He said, This is the most unconstitutional thing I’ve ever seen, and he chewed out the DOJ lawyer there trying to defend it in a way that implicitly but very strongly invoked Nuremberg. Those are not words that a federal judge throws around lightly. And like I said, that was a Reagan appointee. But throughout the courts, we’ve seen immediate victories. Several district courts have entered restraining orders against the spending freeze. We’re seeing, just today, a lawsuit was filed by the FBI Agents Association and a bunch of anonymous FBI agents as John Does challenging the nakedly political purge of people who are in not political appointees but civil service jobs that have civil service protections.
Craig: At the FBI. And we haven’t had a court order on that one yet, but it’s likely one will come. And even when these things work their way up to the Supreme Court.... I share a lot of frustration with some bad rulings that have come out of the court, including on presidential immunity and everything they did on that. But all the same, I think it’s important to be clear-eyed about the fact that there are some things they can do that will go so far as to not have five votes on the court, where they will lose Barrett or Roberts or, in some cases, Gorsuch. And they are really pushing so far, so extreme in such a blatantly unlawful way that even the normal range of pushing on the right flank of existing jurisprudence doesn’t get them anywhere close.
Sargent: What gets blocked, in this moderately optimistic scenario?
Sargent: So Trump gets held back on some of the efforts to assert unilateral control over spending.
The courts will probably not interfere with any use of the military overseas. God help us if we invade Panama or Greenland or something like that. A district court judge somewhere is not going to touch that.
Craig: It’s possible some of the Musk and DOGE activities get stopped. They’re in a very gray area where there’s very few precedents, and what they’re exactly doing and the chains of legal authority they’re claiming are so unclear that it’s highly uncertain. We’ll have to see how that goes when it comes to the courts. Some of these things have a much stronger argument: the civil service protections against getting fired, like the FBI lawsuit. I expect we’ll see from USAID employees also—that’s on stronger footing. People who are receiving grants that have been congressionally appropriated, they have strong standing to go in and challenge freezes.
Sargent: Well, I’m going to choose to be slightly optimistic and say we could see a chunk of some of this stopped. And this is where people like Jamie Raskin come in, and this is where public outcry comes in. Look, we saw them back off on the spending freeze when the public outcry reached a certain pitch. I think the noise we’ve heard around Musk’s illegal power grabs in the government is heartening. We were told that after Trump’s win, there wouldn’t be any resistance; that the public is jaded, doesn’t care about Trump’s corruption, only cares about the price of eggs and so forth; but we’re seeing some stirrings. I think there’s a potential here for the “resistance” to rebound a bit, and Democrats to find their footing, and some court decisions that go our way. Is this crazy optimism to you?
It remains to be seen if it will be enough, but it is going to start happening more. And Democrats have been hearing the message. People are blowing up the phone lines of senators and members of Congress—not hyper left-wing activists, normal Democratic voters have been angrily demanding that they fight harder. They’re hearing that, and they are starting to adjust to it. So I think it’s important to keep up that drumbeat, to call out these things as illegal and unconstitutional because that’s the way we get to the best-case scenario for how this ends.
Craig: Excellent, thank you. It was very good to be here.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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