The following is a lightly edited transcript of the February 5 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
As Elon Musk’s takeover of the federal government continues, Representative Jamie Raskin has been sounding a particularly urgent alarm about what’s happening. And on Tuesday, during a Twitter fight between Raskin and Musk, Raskin asked him a simple question: As someone who supposedly works for the government now, will he submit to basic financial disclosure and conflict of interest rules and norms? As of now, Musk hasn’t done this in his new role, of course.
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.
Andy Craig: Thanks, Greg. Good to be with you.
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?
Craig: Sure. This is something they came out with after all the pushback about he seems to have no official government status. They came out and said, Well, he’s a special government employee. SGEs are used for a number of things, but what’s relevant for here is they’re intended for outside consultants, advisers, people who are not being brought onto the federal payroll but have expertise. And they’re very much intended to be a part-time advisory-capacity thing.
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.
Sargent: If I understand this correctly, the essence of this is that an SGE is not someone who has a whole lot of influence: someone who’s in a consulting role, an advisory role, a bit of an outside role. But here we’ve got Musk clearly shaping agency policy pretty deeply. He’s got his hands on the Treasury Department’s payment systems. He says he’s shutting down the U.S. Agency for International Development with Trump’s assent. He’s talking about mass buyouts for federal workers. Is there any way that this has anything at all in common with what an SGE is supposed to be?
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.
At the very least, he is far beyond, We brought in this guy who works at a think tank or some private company; we’re getting his advice on this thing. That is not what’s going on here, and calling him an SGE is a big leap of a pretense.
Sargent: So generally speaking, Congressman Jamie Raskin has been particularly forceful on how lawless this all is. Listen to this.
Jamie Raskin (audio voiceover): Elon Musk, you may have illegally seized power over the financial payment systems of the United States Department of Treasury, but you don’t control the money of the American people. The U.S. Congress does that under Article 1 of the Constitution. And just like the president who is elected to something cannot impound the money of the people, we don’t have a fourth branch of government called Elon Musk. And that’s going to become real clear.
Sargent: Andy, that’s basically the size of it. Wouldn’t you say Raskin nails it there?
Craig: Yeah. And Jamie Raskin is himself a constitutional law expert. He’s one of the ones that very much gets this stuff the best on Capitol Hill, and he’s worth paying attention to. The fact that Musk is directly exercising apparent control and authority over executive branch departments is the key thing. Elon Musk was not elected president. He was not appointed to any office that has any legal powers. The Department of Government Efficiency was this thing they spun up out of a rebranding of the I.T. advisory service within the executive office of the president. And of course, this is so wildly far beyond what role that was intended to have.
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.
Sargent: Certainly not, although Trump seems to be saying, I’ve got control over him. It’s bullshit. Musk himself was really ticked off by that Raskin riff. On Twitter, Musk offered this convoluted theory that Raskin is actually taking in U.S. foreign aid money via kickbacks and bribes from U.S. lobbying firms. It’s nutty shit.
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.
Craig: Absolutely. Through SpaceX—and some of his other concerns, but primarily SpaceX—Musk rakes in hundreds of millions of dollars in federal government contracts. And that is the kind of thing where you would normally try to maintain a pretty clear wall of separation. If he’s going to be coming in and advising some things, he has to disclose what his conflicts are and he has to avoid anything to do with them. And there’s no indication that’s happening. And in fact, Raskin is right to highlight this fact that he has not even filed the disclosure. As far as we know he hasn’t even received the waiver, which is an option that’s possible in some cases. You can have a waiver when it’s well justified and all the rest of it, but you have to at least go through the process.
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.
Sargent: Just to be clear on what you’re saying here, a waiver is something that Musk could be granted that would let him shape agencies that could potentially take actions that affect his financial interests via those government contracts. The Times reports that the White House isn’t saying if Musk has been granted this waiver. And the Times also quotes ethics lawyers saying that it’s hard to see how such a thing—a waiver like this—could be structured, even if he had one, to cover Musk, given how much he’s doing right now inside the federal 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?
Craig: No, there’s been a total lack of transparency. We went on nearly two weeks before even hearing this he’s a special government employee stuff.
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?
Craig: Part of what is going on here is people have an understandable defeatist attitude: What is the point of talking about the law and the Constitution when they don’t obviously care? They’re doing illegal things. They’re doing unconstitutional things. And the value of that of figures like Jamie Raskin and other Democrats and some principled people on the center-right who have been holding this line is, for the first sake, just to tell the truth.
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.
Sargent: And we’re seeing Democrats stepping up now. Raskin’s a great example. It’s been a little slow in mobilizing, but it does seem like the Musk power grab at the Treasury Department and the one at USAID is really starting to rally a genuine opposition. You mentioned that you see some cause for optimism in the courts. Can you just give us a quick look at that? You can actually see a way in which the courts stop some of this. The unconstitutional illegal spending freeze, the OMB memo, that was blocked. I can’t see that ever succeeding. There’s now a lawsuit by a group of unions who represent federal workers who are challenging Musk’s power grab at the Treasury Department. There will be more, I think. Is there a scenario where some of this actually gets stopped?
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.
Sargent: At the FBI.
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.
There will no doubt be some disappointing incorrect rulings coming out of the Supreme Court as these things work their way up, but I do think we’re going to see a lot of wins—and that will be important. And one of the things about that is when he defies court rulings, which to some degree is already happening on the spending freeze and will happen probably in more cases, that immediately radicalizes the courts against him. So that’s a very much something to watch, particularly with Democrats in Congress stuck in the minority as they are for at least the next two years.
Sargent: What gets blocked, in this moderately optimistic scenario?
Craig: Birthright citizenship is probably at the top of the list because that’s such a black letter settled law thing. A lot of the spending freeze stuff—this goes back to when they tried to do a line-item veto and Clinton tried to use it. It went to the Supreme Court; they struck it down saying you can’t let the president unilaterally freeze spending that Congress appropriated. This is a longstanding thing.
Sargent: So Trump gets held back on some of the efforts to assert unilateral control over spending.
Craig: That’s right. They do get pushback on the spending freeze, and impoundment is the term for when they try to stop congressional authorized spending. One of the things we’re not going to see from the courts is much action on tariffs. That’s something where the precedents are pretty weak on the courts interfering with foreign policy. And unfortunately, the statues have delegated way too much authority to the president to act unilaterally on things like tariffs.
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.
Sargent: And I would think probably the courts will mostly give Trump carte blanche on immigration as well, which is unfortunate. But could we see the court step in and maybe stop some of this Elon Musk lunacy, the assertions of authority over Treasury spending, the purging of USAID, and the nakedly political purging of the FBI? Is it possible some of those things get stopped?
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.
The way Musk is reseizing and reworking the structure of the executive branch itself is on an internal basis; the claim that presidential authority now flows from Trump to Musk down to everyone else is much more difficult for the courts to weigh in on because it’s very core to the internal functioning of another branch. So there are some possibilities there, but that’s going to be more difficult.
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?
Craig: No, I think that’s very much what is happening. Certainly, we’re only two weeks in. As much as I’m eagerly urging Democrats and everybody to stand up and fight as hard as they can, these institutional norms don’t turn on a dime, and we’re asking these people to respond in emergency circumstances in a matter of days, sometimes hours. But there is indication that the overreach that they’re pushing so hard, so fast is encouraging and fueling the backlash, both from institutions and political actors and from the general public. As we move forward, there will be a stronger public resistance, there will be stronger institutional resistance.
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.
Sargent: A hundred percent. It’s not over yet, man. We’re still in this thing. Andy Craig, it was really good to talk to you.
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.