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Musk and Ramaswamy heading new ‘DOGE’ prompts legal and ethical concerns: experts

Vivek Ramaswamy (left) and Elon Musk. (Andrew Caballero-Reynolds and Alain Jocard/AFP)
David Badash, The New Civil Rights Movement
November 13, 2024

President-elect Donald Trump announced Tuesday evening that he will create the Department of Government Efficiency (DOGE), and named billionaire tech mogul Elon Musk and biotech and financial entrepreneur Vivek Ramaswamy as its co-directors. Experts are raising legal and ethical concerns across various issues.

One ethics expert says both Musk and Ramaswamy will have to divest from their extensive financial assets to avoid a federal conflict of interest law.

Professor of Law Richard Painter, who served as the chief White House ethics lawyer under Republican President George W. Bush, issued a warning just hours after Trump's announcement.

"This is a federal office subject to the financial conflict of interest statute, 18 U.S.C. Section 208. They will both have to divest conflicting financial interests or risk violating a criminal statute," Painter wrote.

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He offered some examples: "Elon Musk must divest X or recuse from government matters affecting social media platforms; he must divest Tesla or recuse from government matters affecting the auto industry, electric batteries, etc."

Attorney Tristan Snell, the former New York prosecutor who helped secure a $25 million settlement against Trump University, agreed:

"Elon Musk and Vivek Ramaswamy will have to divest their business holdings if they want to join the Trump administration, to avoid violating conflict-of-interest laws. So if Elon takes a job, could he be forced to sell his stock in Tesla? Or could he be forced to sell Twitter?"

Professor Painter also pointed to a CNN report highlighting potential conflicts.

"The announcement of Ramaswamy and particularly Musk, who leads companies with existing, lucrative government contracts, raises immediate questions about potential conflicts of interest," CNN reported. "It is not immediately clear how the department – which Trump said would 'provide advice and guidance from outside of Government' – would operate, and whether a Congress even fully controlled by Republicans would have the appetite to approve such a massive overhaul of government spending and operations."

CNN also noted that last year Ramaswamy, "who had promised on the campaign trail to eliminate the FBI, the Department of Education and the Nuclear Regulatory Commission, which would lay off thousands of federal workers in the process – released a white paper outlining a legal framework he said would allow the president to eliminate federal agencies of his choice."

The Daily Beast suggested there could be ways to circumvent the requirements of federal law.

"Trump could ... appoint the duo under the Federal Advisory Committees Act, which allows the government to set up groups to provide 'expert advice, ideas, and diverse opinions to the Federal Government.'"

"This would potentially allow Musk and Ramaswamy to remain advisers instead of federal employees—meaning they would not necessarily be legally required to disclose conflicts of interest like employees of agencies such as the Department of Justice or the Defense Department."

Other critics are raising additional concerns.

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Some have suggested that in general, only Congress, not the President, can create new federal agencies.

The Daily Beast reports, "government agencies can only be created by an act of Congress."

It appears Trump's new agency, based on his announcement, may operate out of the Office of Management and Budget (OMB). It is unclear how funding would work.

And while DOGE would suggest where to cut or eliminate funding, generally only Congress can determine how and how much federal funds are spent. It is generally unlawful for the President to decide to not spend funds Congress allocates.

Others are mocking the choice of the new agency's name.

Attorney and creator of the SHERO political and legal newsletter, Amee Vanderpool, points out that DOGE is "an acronym that is frat boy shout out to cryptocurrency," and notes that "an official agency cannot be created without Congress."

NOTUS political investigations reporter Jose Pagliery adds, "Wait, the Elon/Vivek department will be called DOGE? They're memefying the government. The actual government."

Those concerns are accurate, as CNBC explains:

Dogecoin "shot higher on Tuesday night, extending its postelection surge after President-elect Donald Trump formally announced the creation of the Department of Government Efficiency, which he referred to as 'DOGE' in his statement.

The Daily Beast added that "DOGE" is "a reference to a decade-old meme that was later turned into a cryptocurrency beloved by Musk."

Musk himself appears to have come up with the idea of a Department of Government Efficiency, in August:

And reinforced it again in September:

He appears to already be thinking about marketing ideas:

Musk also highlighted what he says he sees as "a leaderboard for most insanely dumb spending of your tax dollars. This will be both extremely tragic and extremely entertaining." He also told a social media user that the "entertainment value will be epic."

Professor of Law, political commentator, and former U.S. Attorney and Deputy Assistant Attorney General Harry Litman offered this summation: "Oh man, talk about strange bedfellows."

See the social media posts above or at this link.

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