Is DOGE Legal? A conversation

Lawfare's Scott Anderson on Elon Musk and the law. Plus details on Wednesday's Subscriber Only ZOOM

First I’m hosting our first subscriber Zoom of the year. It’s Wednesday night February 5th at 5pm PT/8pm ET. To join you must be a paid subscriber and you must register. Find the registration link at the bottom of this email under the paywall. I know this is short notice. There’s just so much happening I had to start. The Zoom will be recorded so subscribers who are unable to attend can watch the conversation. If this doesn’t work for you — I will do many more Zooms in the coming weeks and months.

Is DOGE Legal?

So many of you asked whether Elon Musk’s actions are legal,  I decided to find a lawyer to break it down. It was harder than I imagined! I reached out to lawyers I respect and have interviewed over the years and they all said “wow that’s not my area of the law.” Finally, a kind soul connected me with Scott Anderson, tonight’s interview. 

Scott Anderson is a senior editor and general counsel of Lawfare – a media outlet with original reporting, analysis and podcasts. He’s host of the Lawfare Rational Security Podcast which you can find here. He is also a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

Key Takeaways:

In the conversation Anderson says that he believes that the courts will pause some of DOGE’s actions, soon. He offers that Elon Musk does have authority to do some of what he’s doing and explains which laws DOGE might be violating. Finally, he believes the court action last week halting the OMB memo/spending freeze is just the beginning of legal efforts to reign in the new Trump administration.

Want to Fast Forward?

This conversation gets a bit technical so for ease of listening, below I list the topics we cover. I also include the “time code” for each answer, ie where you can find that answer in the conversation, in case you’d like to fast forward to a topic. For those of you who are not familiar with time codes: an answer that’s 22 seconds into the video would be marked this way (00:22). An answer that’s 3 minutes and 8 seconds in would be marked this way (03:08). If the time code isn’t precisely right go back 30 seconds or 1 minute – sometimes it shifts when loading.

Topics We Cover:

• What authority does Elon Musk have to do what he’s doing? (00:22) 

• Elon Musk might not be breaking laws by accessing the Treasury payment system. But what he does once inside the system could run afoul of the law. (03:08) 

• Could regular people sue? What laws might be violated here? (05:15)

• Why has no court ordered DOGE to halt its work already? (07:17)

• Federal employees are dealing with chaos. Some are on administrative leave for doing things they were mandated to do at work. Why aren’t those cases being brought on an emergency basis? (10:37) 

• Without the courts or Congress, it’s up to the president to stop Elon Musk. (12:30)

• Does he trust the Supreme Court to rule on the law rather than give Trump what he wants? He says that, the immunity ruling notwithstanding, this Court actually favors Congressional power over the power of the presidency. (14:09)

• FBI agents who worked on January 6 investigations are being targeted. What legal claims do they have? (17:35)

• Musk is offering all federal employees a buyout. It’s not clear he can make that deal nor is it clear the federal government has the money to buy them out. If people take the buyout and resign and there’s no money, what recourse do they have? (18:11)

• What do you say to people who feel that the system isn’t working? He argues that Trump is at the height of his power. And the politics of DC mean Trump will need to become more accommodating (It’s a legit view – but I’m not sure I agree.) (19:40)

• He expects to see judges stay some of DOGE’s actions this week. (25:00)

You can find Scott Anderson on BlueSky here.

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