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Here’s a quick glimpse behind the scenes of a story that never was.
On February 3, many days after Elon Musk began barging into federal agencies with a posse of techno-misfits (DOGE) to tamper with government code and unilaterally renege on federal contracts, the White House first leaked word that he was serving as a “special government employee.”
Without knowing much else about Musk’s activities, or the affected entities, this struck me as a freighted and strangely-timed disclosure. When did he receive his appointment, and why was his status so murky for two weeks? Had he just been freelancing the whole time?
These distinctions should matter, as a quick thought experiment makes clear.
Even before John Roberts officially immunized presidents from prosecution for their crimes, they would have enjoyed legal cover for this kind of chicanery. If in a fit of pique, a president had terminated some contract or grant (or, more likely, ordered an agency official to do so) he might have had a problem with Congress, and a court might have ordered him to make good on the obligation. But the aggrieved party wouldn’t have had further recourse.
All the way on the other end of the spectrum, if burglars or a hackers were to infiltrate a nonprofit organization’s headquarters or its computer systems, grab a bunch of money, and stash it under a mattress somewhere, that’d be a cut and dry felony. Even if they didn’t spend the money; even if they eventually returned it.
Musk’s earliest moves fell somewhere in between. He might have claimed he was operating on the president’s orders, but there were no public records to back that up. By all appearances, he was a private citizen, without even a nominal appointment in the federal bureaucracy.
Why, I wondered, couldn’t an ambitious district attorney or state attorney general find a grantee whom Musk had burgled, and investigate it as a crime? Musk could stand to lose quite a lot if indicted by a grand jury, particularly in certain jurisdictions. It would be just, karmically satisfying, and might even grind DOGE’s lawless wrecking to a halt.
I ran the idea by a few trusted lawyers, most of whom didn’t think it would be a fruitful pursuit—at least as to whether it might lead Musk to justice. Musk would claim to have been operating on presidential orders. Federal supremacy and various presidential privileges would be big burdens to overcome. Things would get messy or the case dismissed. In an irony, a group of current and former government employees and contractors would subsequently file a strong civil suit against Musk and DOGE that stipulates to Musk’s federal employment. The plaintiffs argue that no mere “special government employee” can be vested with such sweeping powers under the Constitution. “The duties Defendant Musk and the DOGE team he directs have performed thus far… represent ‘the performance of [] significant governmental dut[ies]’ that may be ‘exercised only by persons who are “Officers of the United States,”’ and duly appointed pursuant to the U.S. Constitution’s Appointments Clause.”
They would know better than I (though, Rob Bonta, if you’re listening…) but at that juncture, I started wondering: Had Elon Musk thought of his legal risk before he started intercepting federal outlays and chainsawing government infrastructure?
A few days later, Musk would claw FEMA grant money out of a New York City government bank account in a move the comptroller called “highway robbery.” By then Musk was supposedly was a government employee, and thus well shielded by constitutional doctrine. But did Musk know he was immune before he ordered the heist? Or have these guys given up altogether on the pretense that they have to follow the law?
CRIMING THE PUMP
I raise those questions, and offer that backstory, because the outpouring of illegal activity in the Trump era has become its own kind of unexploded ordnance.
With a perfect view into government and government-adjacent activity, I suspect we’d find hundreds of lifetimes worth of imprisonable crime, just over the past month.
As long as Trump is president, practically none of it will be prosecuted at the federal level—but it’s worth tracking and airing and logging the evidence anyhow, and Democrats should not be encouraged (by their consultants or anyone else) to look the other way.
Because we’re living through an era of right-wing impunity—because Trump, and the prosecutors he’s appointed, and the FBI director he appointed, and the judges he’s appointed will not dispense equal justice—Democrats will be tempted to treat all this criminality as a distraction. Forget the past. Look forward. Turn the page.
That is their m.o. It’s a congenital weakness. But in this case I don’t think it’d represent merely a lost political opportunity or miscarriage of justice. I think it would become a source of real danger, both to members of the party, and to the still-burning hope for a quick return to democracy.
Musk’s degenerate acolytes might not know which if any criminal laws they’ve broken. Same Musk himself, and the various other Trump loyalists giving or buying themselves federal contracts. But they surely know they’ve exposed themselves to many kinds of public accountability. Musk in particular seems like the kind of arrogant megalomaniac who’d fire a lawyer who advised him to tread carefully.
Emil Bove, the shifty acting deputy attorney general who struck a corrupt quid pro quo with New York City Mayor Eric Adams, may have enough legal training to know whether he committed any crimes. But that doesn’t mean he didn’t commit one. Everyone who’s directed money to Trump through his businesses knows bribery is immoral and illegal. We should expect more and more grifters to sniff out money-making opportunities abroad and begin bribing foreign officials now that Trump’s DOJ has suspended enforcement of the Foreign Corrupt Practices Act.
Many of these opportunists may reasonably suspect Trump will pardon them if their bad acts are exposed, or as his presidency winds down. But some of them will be wrong; some may not even think more than one step ahead—they’ll see an opportunity, and take it, consequences be damned.
But if at any point things start to fall apart, if the thousand-year Reich only lasts four or fewer, they are going to panic. It doesn’t matter whether Democrats intend once again to “look forward, not backward”—these crooks won’t be inclined to take the risk. They will further sabotage the republic in order to save themselves.
The Democratic Party’s safest option is to shine a spotlight on as much wrongdoing and as many wrongdoers as they can. Put eyes on them and they might not be so keen to conspire against America to save their own hides.
PRESSED FOR KASH
Think I’m exaggerating? Well, for starters, remember that Trump and his criminal entourage attempted a coup four years ago to hide from the law.
Trump has not yet matched Hitler or Mussolini for evil, which makes it easy for people who live in denial (or who get paid to own the libs) to write this off as overreaction. It probably feels like overreaction to many regular people.
But it’s not a stretch—obviously not a stretch—to compare the Trump regime to the mafia state Viktor Orban built in Hungary. Orban essentially served as a consultant to the incoming government on how to end competitive elections without inciting rebellion. Today’s Republicans are already comfortable with a system that represses dissidents, and denies their opponents a fair shake in elections.
It’s also no stretch to compare Trump to his friend Jair Bolsonaro, the former president of Brazil, now under indictment for mounting a coup modeled on January 6. Brazil’s top prosecutor alleges that Bolsonaro’s plot “included a plan to poison Lula and shoot dead Supreme Court Justice Alexandre de Moraes, a foe of the former president.”
So we’re somewhere on the dark path between “dissidents are humiliated” and “dissidents are imprisoned and killed,” and Trump will take us as far down that road as his party and public opinion will allow. His Justice Department appointees are fast driving ethical prosecutors out of their jobs. His top prosecutor for the District of Columbia is an insurrectionist who’s launched a show investigation of Senate Minority Leader Chuck Schumer and Rep. Robert Garcia (D-CA) for the crime of criticizing Trump allies.
And Senate Republicans just confirmed Kash Patel, a crooked MAGA operative with an enemies list, to direct the Federal Bureau of investigation.
Ducking confrontation with this criminal enterprise won’t make things any safer for leading Democrats, particularly those who wish to run for president. They’d be better off making these bad actors infamous, the sorts of people who deserve to go to jail themselves. Their mantra should be that they won’t take harassment lying down; that they’re prepared to drive the hammer of accountability the moment Trump gives way.
I appreciate that this is easier said than done. If standing up to criminals were safe and easy, we wouldn’t need police. Their fight-or-flight response is surely kicking in. But scared as they might be, there’s nowhere to run.