Elon Musk’s various methods of breaking the law, as explained by a professor of law.

Elon Musk’s Department of Government Performance is moving quickly and violating numerous rules.

The range of Trump and Musk’s ambitious plan to reduce state spending and cleanse the federal labor has shocked the social landscape, in part because of its ambition but also because of its disregard for the law.

According to David Super, an administrative law professor at Georgetown Law School, “many of Musk’s moves are so outrageously illegal that he seemed to be playing a variety game, assuming the system doesn’t respond to all this illegality at once,” he recently told the Washington Post.

I reached up to Super so he could move us through this volume sport and taking me on a tour of all the ostensible malfeasance in Musk’s effort so far. A record of our talk, condensed and edited for clarity, follows.

The propriety of Musk’s usage of administrative leave to stifle government employees

Andrew Prokop

This extreme usage of paid operational left has actually struck me about the new president’s tactics so much. Employees who have resisted DOGE’s requirements have been immediately placed on administrative leave. Federal authorities also worked on DEI. Nearly all of the employees of USAID, the US Agency for International Development, has met that death.

Is operational keep permitted in this context? How are typical government systems using it?

David Super

This is very unusual and good illegal. Operational left is only permitted for ten workdays per year under federal law. So they will be evaporating the seal for many of these people very quickly.

It is used by regular services as a fix for a variety of issues in the same way that regular businesses do. Administrative leave may be the answer if someone is accused of wrongdoing and you need time to investigate and the situation is serious. If someone clearly needs some time off for a compelling reason, such as big losses, and there’s no way of doing it with other types of left, this can be done. So it’s a little bit of a gap filler in both the law, the intention, and the common use.

There is simply no legal authority to do that because this makes extremely grand use of it.

Andrew Prokop

The administration also included a “fork in the road” email that stated that civil servants would be entitled to full pay and administrative leave until September 30. What are the legal concerns there?

David Super

Well, they’re making a promise that is contrary to federal law — and that has very serious consequences.

According to the Constitution’s appropriations clause, federal funds can only be spent in accordance with a Congress-approved appropriation, and Congress has the power to limit its appropriation in a variety of ways. They’ve limited the appropriation, for salaries, to generally only 10 days of administrative leave per calendar year.

So when they’re promising more than that, they are violating the appropriations clause. They’re also violating the Antideficiency Act ]a law prohibiting federal employees from committing funds that haven’t been appropriated]. And then, when they make promises of money to people past March 14, the end of the current continuing resolution, they’re also committing federal funds in advance of an appropriation, which is both unconstitutional and unlawful.

Andrew Prokop

They appear to be interpreting it as a “hack” because they probably believe that firing people is legally risky, but putting them on paid administrative leave is a difficult step short of that, which they might be able to get away with.

David Super

Well, one question is whether they’ll actually do it. They’re certainly promising it. But they’ve also suggested that they may not be bound by contracts.

Therefore, it’s very likely that people will resign on this grounds, that OPM [Office of Personnel Management ] will sign them contracts that say that they will, and that they will then simply refuse to do so, and that they will argue that the administrative leave cap prevents them from doing so legally.

Then, the foolish people who accepted this invitation may file a lawsuit to try to get their agreements enforced. And I’m assuming the courts will decide that we can’t put an agreement into effect since no one had any authority to do so.

Asserting presidential authority to not use funds that Congress passed into law

Andrew Prokop

All right, let’s move to spending. We’ve seen a very broad order putting a freeze on federal grants put on hold by the courts. Additionally, there has been talk of Musk’s team trying to stop particular grants from being distributed. What legal concerns does that raise?

David Super

The Supreme Court, however, has ruled nine to none that the president is required to spend money when Congress orders it to do so. So that’s a challenge that they will have to overcome a lot.

Presidents have the authority to make recommendations for funding cuts to Congress. The Impoundment Control Act provides a quick way to have those recommendations taken into account. But the president simply doesn’t have this unilateral authority.

The Trump administration has developed a number of bizarre legal theories as to why they are able to accomplish all of these things. However, these legal theories actually originate from the same place as the idea that the vice president has the authority to override the popular opinion and grant the election to whoever the vice president chooses. When they attempted to persuade Mr. Pence to do it, it was an absurd theory, and it hasn’t changed since. However, the ideas that are exploding here are the same very odd form of bizarre Constitutional ideas.

Andrew Prokop

Trump and Musk are attempting to transfer USAID over to the State Department. This seems to be flagrantly contrary to the language of the congressional statute creating that organization, correct? Is that even more challenging?

David Super

It really isn’t. Section 6563 ( a ) of Title 22 of the US code says, there is a USAID. It doesn’t say there can be. It doesn’t say,” If the president wants to”. It says, there is a USAID. Therefore, to shut it down would mean breaking the law.

Musk’s own appointment and the Treasury Department’s payment system

Andrew Prokop

Elon Musk’s background and his position in the government should also be a subject of inquiry. Although it is unknown when he was designated as a special government employee, the administration has confirmed that he is one. They claim that it’s up to him whether to declare a conflict of interest with anything he’s working on with his business. What legal issues are present here?

David Super

Well, there are many such problems. There are a number of integrity-of-government regulations designed to prevent individuals from having control over their finances.

We don’t know what Mr. Musk’s status is. We’re not sure if he has any status, or if they’re trying to give it back in the future. We’re really at a loss for how all of this might come together. However, it seems as though he is being given access to data that could be very useful to use against his rivals. Simply saying,” Well, we hope that he’ll do the right thing on conflicts of interest” falls far, far short of the obligations of the government.

Andrew Prokop

There’s been much reporting about Musk and his team getting into the Treasury Department’s payment systems. What are the relevant legal red flags?

David Super

There are a number of those. Federal law contains a lot of detail about who has the authority to regulate federal funds, and who can issue payments on behalf of the federal government. In all likelihood, the people involved do not qualify under those terms.

Additionally, it means that they are being given access to highly sensitive private information that is protected by the Privacy Act and a number of other laws and regulations intended to shield Americans from identity theft. Many of us could have our bank accounts wiped out by the federal government if it is true that they copied this information onto other servers and those servers get hacked.

By contrast, Mr. Musk has been saying that he’s identifying false payments, or illegal payments, and saving the federal government$ 4 billion a day or some enormous figure of that kind. Without mentioning that Mr. Musk is not authorized to make those kinds of decisions, there is no reason to believe that the information in this system would be able to determine what is legal or not. So it seems as though the way they’re trying to justify this seems to be either wishful thinking or something worse going on.

( Update: After this conversation, the Trump administration agreed to temporary limits on DOGE’s access to Treasury’s payment systems. )

Will the courts stop this?

Andrew Prokop

Is there another area of flagrant lawbreaking that I neglected to mention?

David Super

He has stated that he has the authority to revoke federal laws without going through the administrative procedure act’s requirements. That would fundamentally alter the regulatory framework in this nation and be very unsettling for regulated businesses. I suspect both liberals and conservatives would be very worried about that proposal if a different president decided to use that reported power to ratchet up regulations.

Andrew Prokop

You claimed to the Washington Post that you thought they were betting that the system wouldn’t be able to handle or effectively respond to what they were doing if they flagrantly defied a number of laws at once. How do you believe that has fared for them?

David Super

The funding freeze was enjoined. Many of these other actions are prohibited and will likely be stopped immediately.

However, I believe that President Trump is living up to the claims he’s made repeatedly that his appointments to the Supreme Court owe him and should show him loyalty, and that he can have a majority willing to let him break any federal law he desires to.