Attempts to challenge the power of Elon Musk and his DOGE team to close down government departments have hit an unexpected complication: according to the White House, the entrepreneur is not even in charge of the operation.
That surprising claim was made in court papers filed by the White House on Monday. Far from running DOGE, Musk is simply another “senior adviser to the president,” with no greater authority than any other advisor, according to an affidavit filed by the White House’s Director of the Office of Administration, Joshua Fisher.
“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 objectives,” Fisher declared in the affidavit.
Musk is not an employee of DOGE, nor its administrator; his status is that of an employee of the White House, Fisher added.
His filing was in response to a complaint filed Feb. 13 by the attorneys general of 14 US states against “Elon Musk in his official capacity,” the US DOGE Service and its temporary organization, and President Trump himself, questioning the apparently unchecked power DOGE and Musk have been handed by Trump.
Their wording didn’t hold back, drawing an unflattering parallel between his behavior and the “despotic power” wielded by Britain’s King George III over the American colonies in the 18th century.
“Mr. Musk’s seemingly limitless and unchecked power to strip the government of its workforce and eliminate entire departments with the stroke of a pen or click of a mouse would have been shocking to those who won this country’s independence,” they said.
Musk did not occupy an office of state and had not been confirmed by the Senate, the states argued. This rendered his actions unconstitutional.
DOGE playbook
If Musk isn’t running DOGE, who is running it? And does this even matter? Unhelpfully, President Trump’s executive order bringing it into existence on day one of his administration never named a head. Nor, as critics have pointed out, did it explain how a department could have so much power or even be called a “department” without having to obtain approval from Congress first.
This is surely deliberate. If it’s not a department, it is not therefore bound by legislation governing freedom of information, privacy and administration. However, the White House’s refusal to acknowledge Musk as the head of DOGE is probably simply a delaying tactic. They will know that successfully identifying Musk as the person directing DOGE is important for his opponents’ legal arguments.
If Musk is not running DOGE, then who should be held responsible for its actions? It’s likely that a judge will eventually point out that someone, somewhere must be accountable for what DOGE is doing.
Exploiting a loophole
The problem with trying to stop Musk and DOGE is that he has attacked the system on several fronts simultaneously, often using unsubstantiated claims of fraud as his motivation. This includes turning up unannounced at the Treasury Department on January 20 and demanding access to payment servers which store the tax returns, social security data and bank account numbers of every adult US citizen. That access was blocked by a judge.
The same modus operandi has been repeated in other departments, creating a moving target for anyone trying to stop him. In response, some officials have chosen to resign rather than give Musk’s team access to data in a way that might not comply with existing data security and privacy rules.
What remains unclear is how much access has been granted, and to whom within DOGE. This has left a feeling of strained uncertainty.
“An internal email sent to BFS [Bureau of the Fiscal Services] IT personnel by the BFS threat intelligence team has identified DOGE access as “the single greatest insider threat risk the Bureau of the Fiscal Service has ever faced,” argued the state attorneys general as part of their recent legal challenge.
Furthermore, “The intelligence team recommended the DOGE members be monitored as an insider threat. Critically, they called for “suspending” any access to payment systems and “conducting a comprehensive review of all actions they may have taken on these systems,” it continued.
“Mr. Musk has gained sweeping and unprecedented access to sensitive data, information, systems, and technological and financial infrastructure across the federal government. This access is seemingly limitless and dependent upon Mr. Musk’s discretion.”
For now, there is nothing to stop Musk beyond a flurry of disconnected lawsuits by organizations and individuals. For its part, DOGE continues to hide in plain sight, exploiting the loophole that by avoiding being a formal department, it sits strangely beyond the usual rules.
