Suing Elon Musk and DOGE has finally led to at least one thing: the White House now finally defining Musk’s role in government. On Monday night, in the New Mexico v. Musk, it claimed him as a “an employee of the White House Office” with only “the ability to advise the President, or communicate the President’s directives.”
This filing, with is accompanying declaration, was made to tell the court that Musk “’has no actual or formal authority to make government decisions himself’—including personnel decisions at individual agencies.” (Nor does DOGE have such authority.) It came up because in Monday’s hearing about the TRO New Mexico and over a dozen more states had sought to, among other things, restrain Musk and DOGE from causing the firing of any more personnel. The DOJ is now trying to claim that neither Musk nor DOGE were ever responsible for any personnel firing decisions.
But it’s a strategy that seems too cute by half and one that potentially creates more issues for Musk and DOGE than it purports to solve. Because the filing serves as a big neon sign saying that Musk had little authority.
So then what the hell was he doing demanding that anyone from DOGE get access to the nation’s most sensitive computer systems?
It certainly looks like it was access “without authorization” that the CFAA punishes because there was no authorization that this particular status as a White House employee could endow him with to entitle him, or his delegates, to the access they took. Nor, apparently, did it. From the declaration:
“Mr. Musk is an employee of the White House Office. He holds that position as a non-career Special Government Employee (“SGE”). In that job, Mr. Musk is a Senior Advisor to the President. […] In his role as a Senior Advisor to the President, Mr. Musk has no greater authority than other senior White House advisors. Like other senior White House advisors, Mr. Musk has no actual or formal authority to make government decisions himself. Mr. Musk can only advise the President and communicate the President’s directives.”
Perhaps the DOJ is hoping that “communicate the President’s directives” gave Musk the power to demand the access, as if his authorization somehow flowed from the President. But the President didn’t have the authority to demand the agency access Musk and DOGE took because, as other litigation is pointing out, such access was limited by statute.
The DOJ is also trying to dance around the Constitution by claiming that DOGE is mere “component of the Executive Office of the President.” But Musk and DOGE have been doing more than just advising the White House. Although disclaimed now, the firings, contract breaches, and payment freezes seem to have been at their hands. But even if they were only the byproduct of “recommendations” Musk and DOGE had made they were recommendations made in the shadow of their unauthorized access to these sensitive computer systems and all their data—access which they have also used to directly interfere with agency operations, at times even by having direct access to their code.
There is nothing advisory about any of those activities. The very real problem the country is facing is that Musk and DOGE are asserting a coercive power to seize access to these systems, which has then fueled their destruction. And what this case is asserting is that constitutionally they should have had no such power to do any of it.
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