The future roles of Elon Musk and Vivek Ramaswamy in the budding ‘Department of Government Efficiency’ (DOGE) under Donald Trump’s second presidential term pose a range of ethical and legal questions. Following his re-election as the 47th President of the United States, Trump revealed the establishment of DOGE, appointing Musk and Ramaswamy to spearhead it. Both individuals are well-known figures on the business landscape – Musk, for pioneering the electric vehicle revolution, and Ramaswamy, for his ventures in the pharmaceutical industry. Although they initially competed for the presidency, they eventually joined forces when Ramaswamy endorsed Trump’s campaign.
Even though DOGE receives the title of a ‘department,’ it is not expected to function in line with the typical federal agency operations, such as the Treasury Department. The transition team of Trump has clarified that DOGE will exist independently, outside the conventional government structure. This out-of-the-box arrangement for DOGE is conjectured to be inspired by Musk and Ramaswamy’s desire to protect their financial assets from potential regulatory requirements.
Implementing DOGE within the government’s fold would demand stringent compliance from Musk, Ramaswamy, and all employees to abide by the federal conflict of interest statute, 18 U.S. Code 208. This legislation forbids government officials from taking part in government operations or affairs that might affect their financial standing. Violations of this law, including a failure to divest from any potential conflicting assets or recuse themselves from comparable circumstances, can result in a felony.
Musk and Ramaswamy’s various business interests stand to be significantly influenced by government regulation, considering their wide-ranging operations and projects. Some of these businesses also benefit from sizeable federal contracts. An extensive array of potential skirmishes and conflicts of interest are likely to emerge if these business magnates participate in the government’s workings without first dispensing of their financial holdings.
The better alternative for Musk and Ramaswamy, unless they consider divesting, is to work outside the government structure and exert their influence remotely. It might not actually prove very remote, as President Trump’s connection can bring them quite close to the core of decision-making, just a phone call away. However, incorporating them into the federal mechanism presents a considerable regulatory hurdle — the Federal Advisory Committee Act (FACA).
The FACA has been enacted to prevent federal agencies and presidents from relying on affluent entrepreneurs or other individuals to provide guidance devoid of transparency or without complying with the ethical norms applicable to government officials. The Act does permit advice from external advisors, but any formal consultation, as planned with DOGE, is necessitated to be managed through a transparent and certified federal advisory committee.
A federal advisory committee, under the FACA rules, is obligated to maintain public records, host open meetings, and permit the public to engage. The trade-off is that while an advisory committee must provide a higher degree of transparency than a typical government office, it is lesser in compliance with traditional government ethical regulations.
Alongside reduced adherence to ethical norms, federal advisory committees offer more transparency and public interaction. This potentially sets the stage for a legal confrontation if DOGE, despite being set outside the government, starts to behave akin to a government organization, wielding authority over government employees while maintaining secrecy in its deliberations.
Unless Musk and Ramaswamy decide to divest, they could find themselves amid allegations of acting equivalent to government workers and breaching the financial conflict of interest laws. Alternatively, if DOGE truly operates independently outside government control, it might be required by the courts to disclose its records and host public meetings in line with FACA.
In defense, the Trump administration could argue against the constitutionality of FACA, on the grounds that the President should have the discretion to consult anyone, including private entities established by billionaires. FACA has existed for half a century, but there’s uncertainty on how the Supreme Court may rule if Trump challenges it.
The Supreme Court’s recent fascination with expanding executive powers and the justices’ undisclosed relationships with tycoons indicate the unpredictability of any ruling on a potential challenge against FACA. The move for Musk and Ramaswamy is now to determine their precise roles – they can either join as government insiders subject to financial conflict of interest laws, or DOGE can operate outside government confines, thus being subjected to FACA’s transparency regulations.
The concept of DOGE existing within or outside the government is a decision that needs to be made by the presidential transition team. The unique setup of DOGE presents Musk, Ramaswamy, and the Trump administration with two primary options. Talented and seasoned billionaires may offer valuable contributions to government efficiency, but the legal and ethical implications of their involvement must also be considered.