Alex Brandon/AP Photo
Special government employee Elon Musk in the Oval Office of the White House, February 11, 2025
On Tuesday, Judge Tanya Chutkan declined to issue a temporary restraining order sought by 14 states that would have blocked Elon Musk and his Department of Government Efficiency (DOGE) teams from the internal IT systems of multiple federal agencies. The denial was mostly on standing grounds, with Chutkan ruling that the plaintiff states did not establish irreparable harm from funding shortfalls or data vulnerability, just the possibility of it.
Yet the case has thus far yielded some valuable information about Musk’s role in the government. In her ruling, Chutkan states clearly that Musk was not appointed by the president and confirmed by the Senate, yet he “has rapidly taken steps to fundamentally reshape the Executive Branch.” This is a potential violation of the Appointments Clause of the Constitution, which the Supreme Court has interpreted to mean that any appointee “exercising significant authority pursuant to the laws of the United States” would need to receive Senate confirmation.
In a declaration in the case, Joshua Fisher of the Office of Administration stated that Musk is a noncareer “special government employee” (SGE) serving as a senior adviser to the president, who has “no actual or formal authority to make government decisions himself.” He’s not even part of DOGE, according to Fisher: “The U.S. DOGE Service is a component of the Executive Office of the President … Mr. Musk is an employee in the White House Office. He is not an employee of the U.S. DOGE Service or U.S. DOGE Service Temporary Organization. Mr. Musk is not the U.S. DOGE Service Administrator.”
Setting aside the lunacy of seeing the word “DOGE” used repeatedly in legal filings, the declaration defied common sense and the lived experience of anyone who has watched the past 30 days transpire. We’ve all seen Donald Trump announce Musk as the leader of DOGE, seen Musk explain what DOGE would do under his leadership, and seen Musk tweet out DOGE’s actions in real time. Entire narratives have been written about what Musk is doing while leading DOGE. Nobody in fact knows who is in charge of DOGE if it’s not Musk, not even the employees of the U.S. DOGE Service.
As Marcy Wheeler explains, this hide-the-ball maneuver is clearly an effort to stay out of an Appointments Clause dispute. Prior to becoming president, Trump’s lawyers argued that special counsel Jack Smith had too much power and needed to be appointed by the Senate. Musk is dismantling agencies and canceling spending appropriated by Congress; shouldn’t he need Senate confirmation as well?
But let’s take the White House at its word. If it’s really the case that Musk is a mere adviser operating as a special government employee, then he can only stay in that job until May 30, and would have to vacate the White House after that. Most of his DOGE teams, also serving as SGEs, would have to leave too.
The title is convenient because special government employees don’t need to file a public financial disclosure.
The “special government employee” designation was intended for members of advisory commissions, who it was thought shouldn’t have to go through cumbersome ethics pledges and financial disclosures to serve on a board and offer advice. As a result, the law was shaped so permanent employees couldn’t serve as SGEs. The federal code is quite clear: An SGE’s term is “not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days.” Ethics rules state that this is based on a “good faith estimate” of how long the government service will take, and that estimate must be made in advance. Any work done on a day is counted as a workday.
During the first weekend of the Trump administration, Musk boasted that “working the weekend is a superpower.” During the dismantling of USAID, he tweeted, “We spent the weekend feeding USAID into the wood chipper.” He has been sleeping on the floor of his government office. So it’s not at all a stretch to assume that he has worked every weekend thus far, putting 30 days under his belt, with only 100 left to go.
Other members of the DOGE team have conceded that they are operating as SGEs, like Tom Krause, the CEO of Cloud Software Group now leading the Bureau of the Fiscal Service at the Treasury Department, who stated his SGE status in a court declaration.
The title is convenient because SGEs don’t need to file a public financial disclosure, which the world’s richest man and the CEO of a software company might want to avoid. (The White House has said that Musk’s disclosure has been filed confidentially.) The law does prohibit Musk from taking any action that would confer a direct benefit to his personal financial interests or his family without a special waiver.
Given Musk’s broad range of companies, government contracts, and regulatory hurdles, it seems almost impossible that this law hasn’t been broken. In fact, having a team from SpaceX review air traffic control after the plane crash in Washington may have already done so. But only the Justice Department can enforce this law, which seems unlikely. The White House has said that Musk is self-monitoring for conflicts of interest.
In his declaration, Fisher said that the SGE status of Musk is not unlike other senior advisers to the president; he gave the example of Anita Dunn in the Biden White House. It’s true that Dunn was an SGE, serving from January 20 to August 12, 2021. Even presuming she didn’t work weekends, that was a little over the 130-day limit. But when Dunn returned to government in 2022 under a federal employee designation, she divested from a stock portfolio worth up to $48.2 million to avoid any conflicts.
Other advisers have held SGE designations in the past, like Huma Abedin in Hillary Clinton’s State Department. But Trump tested the limits of SGEs in his first term. Keith Noreika, a corporate lawyer for big banks, was put in control of the Office of the Comptroller of the Currency, the national bank regulator, in May 2017, and he served well beyond the 130-day limit, prompting Senate Democrats to demand that he convert to federal employee status or vacate the position.
At the time, the OCC contended that the 130 days only referred to business days, even though “business days” appears nowhere in the statute, and the heads of major government agencies have authorities that extend past normal business hours. Eventually, Noreika did leave when Joseph Otting was confirmed to the OCC that November, going back to work on behalf of big banks.
But while Noreika was running an important agency, the controversy was still rather obscure. Elon Musk is as well-known a government official as exists today. He has a designation that carries a clear time limit. And that clock runs out on May 30.
Again, there’s the question of who, if anyone, would actually be able to enforce this law. The Justice Department is practically an appendage of the president at this point. But if Musk goes beyond the 130-day limit, any entity affected by decisions made by the White House could potentially argue in court that those decisions were improper and void because they involved the input of an illegal SGE. That would offer a new line of attack on the Musk-led dismantling of government.
The administration has been trying to build a wall around Musk to avoid accountability. The fact that the wall has one loose brick in it, forcing Musk to leave the government on May 30, is a small consolation given the carnage that has already been carried out. But it is the law.
