U.S. government officials privately warn Musk’s blitz appears illegal
"The billionaire’s DOGE team has launched an all-out assault on federal agencies, triggering numerous legal objections.
The chaotic blitz by Elon Musk’s Department of Government Efficiency has triggered legal objections across Washington, with officials in at least a half-dozen federal agencies and departments raising alarms about whether the billionaire’s assault on government is breaking the law.
Over the past two weeks, Musk’s team has moved to dismantle some U.S. agencies, push out hundreds of thousands of civil servants and gain access to some of the federal government’s most sensitive payment systems. Musk has said these changes are necessary to overhaul what he’s characterized as a sclerotic federal bureaucracy and to stop payments that he says are bankrupting the country and driving inflation.
But many of these moves appear to violate federal law, according to more than two dozen current and former officials, one audio recording, and several internal messages obtained by The Washington Post. Internal legal objections have been raised at the Treasury Department, the Education Department, the U.S. Agency for International Development, the General Services Administration, the Office of Personnel Management, the Equal Employment Opportunity Commission and the White House budget office, among others.
“So many of these things are so wildly illegal that I think they’re playing a quantity game and assuming the system can’t react to all this illegality at once,” said David Super, an administrative law professor at Georgetown Law School.
Specific concerns include the terms of the “deferred resignation” Musk’s team is offering to purge the civil service — which experts say runs afoul of federal spending law — and whether Musk’s staffers will use Treasury’s payment system to reverse spending that has already been approved. (Two federal employee unions sued Monday to block DOGE from accessing that system. Late Tuesday, Treasury Secretary Scott Bessent wrote to Congress that DOGE associates have only “read-only” access to it.) Several federal officials said they were worried about DOGE’s taking control of government systems that hold Americans’ personal information, including student loan data, and others have raised privacy concerns about the agency’s vow to use artificial intelligence on government databases. In other instances, officials have raised concerns that DOGE associates appeared to violate security protocols by using private email addresses or not disclosing their identities on government calls.
At a more fundamental level, several legal experts and government officials expressed alarm over how Musk’s team appears to operate as a strike team, outside typical agency rules and constitutional checks on executive power.
“The big-picture constitutional worry is that there is a kind of shadow executive branch that is existing and operating and exercising power outside of the channels the Constitution and the statutes that Congress authorized,” said Blake Emerson, a professor of constitutional law at the UCLA School of Law.
The Sidebar panel discusses the legality of granting Elon Musk and the DOGE team access to government information. (Video: HyoJung Kim/The Washington Post)
On Monday, the White House confirmed that Musk has been designated a “special government employee,” a status typically conferred on outside advisers from the private sector. Under a Trump executive order, the U.S. Digital Service, a White House office established during the Obama administration to consult on federal technology, has transformed itself into the U.S. DOGE Service. Democrats in Congress have raised objections to some of DOGE’s actions, but Republicans, who control both chambers, have not moved to rein in its activities.
In a sign of potential unease over how DOGE’s early moves are being perceived, President Donald Trump and Musk have defended the billionaire’s influence and the legality of their actions. Musk has alleged that much of the government is already violating federal law and that his efforts are a needed corrective, for instance asserting over the weekend, without offering evidence, that USAID is a “criminal organization” that should be shut down and that Treasury’s career staffers routinely commit federal crimes. Trump has also denied that Musk will be able to use his government influence to expand his personal fortune, though he did not point to specific guardrails against that.
“Those leading this mission with Elon Musk are doing so in full compliance with federal law, appropriate security clearances, and as employees of the relevant agencies, not as outside advisors or entities,” a White House spokesperson said.
“If there’s a conflict, then we won’t let him get near it,” Trump told reporters Monday. “We’re trying to shrink government, and he can probably shrink it as well as anybody else, if not better. Where we think there’s a conflict or there’s a problem, we won’t let him go near it.”
DOGE challenges federal spending law
Despite Trump’s assurances, federal officials have widespread concerns about the legality of many of the Musk team’s actions, though career staffers don’t have the power to do much about it.
Part of the concern has centered on the Treasury Department’s powerful payment systems, which are responsible for disbursing more than $6 trillion across the country every year. In private communications last week, a DOGE representative asked the most senior Treasury career official to halt foreign aid payments that Musk allies believed violated Trump’s executive orders, two people familiar with the matter said.
David A. Lebryk, who was at the time the acting treasury secretary, told Musk’s team that the department does not have the authority to cancel payments authorized by federal agencies, the people said. Lebryk was later ousted by Trump officials, and Bessent has since agreed to hand access to the system to DOGE officials.
On X this weekend, Musk defended using Treasury’s systems to shut down federal payments because, he said, some of those payments are being made incorrectly. “Career Treasury officials are breaking the law every hour of every day by approving payments that are fraudulent or do not match the funding laws passed by Congress,” he wrote.
Musk also pointed to U.S. law governing how payments are made. Inside Treasury, several officials mocked Musk’s tweet, which states that the U.S. government is required to complete payments properly certified by federal agencies — exactly the point Lebryk made.
Bessent wrote Congress on Tuesday that the payment system had not rejected any payments submitted by other agencies, and that no payments for Social Security or Medicare had been affected. The administration has notified recipients via several agencies that it will comply with a court injunction reversing a White House attempt to freeze all federal grants.
But Musk’s repeated statements that Treasury officials need to unilaterally shut down payments already approved by Congress and requested by agencies have alarmed numerous officials within the government, who note that the Constitution explicitly gives spending power to Congress.
Unilaterally terminating federal disbursements via Treasury’s payment networks would also almost certainly violate a 1974 budget law and due-process protections for grantees, current and former officials say.
Resignation bid prompts legal concerns
Musk’s rapid actions have prompted other concerns within the administration as well. Last week, his allies at the Office of Personnel Management sent an email to much of the federal workforce offering to pay employees’ salaries through September if they quit now. The proposal is intended to accomplish Musk’s goal of “mass head-count reductions” in the civil service.
The memo, which bypassed typical channels, provoked greater internal legal concerns that have not previously been reported. Administration officials point out that the OPM does not have the legal authority to guarantee payments to employees — a responsibility that rests with the agencies where people work. Additionally, the executive branch cannot specifically guarantee spending not yet approved by Congress, legal experts say. Government funding is currently set to expire in March, well before the end of September.
Last Thursday, a group of officials with the White House budget office — including career employees as well as political employees appointed by Trump — met with OPM officials, two people with knowledge of the meeting said. While the meeting was described as cordial, several career budget officials told The Post that they have concerns about the legality of the offer. (Russell Vought, Trump’s pick to lead the budget office, was not at the meeting. His nomination has not yet been confirmed by the Senate.)
The budget office has also received numerous questions from agency officials asking it to confirm the legality of the OPM’s offer, and some budget personnel have not been sure how to respond. On Tuesday, the OPM circulated an FAQ document specifically addressing legal concerns, in a sign that those worries may be widespread.
“They’re promising to pay people through Sept. 30, when they only have authority to spend through March 15 — it’s clearly a violation of the law,” said Charles Kieffer, who spent several decades across administrations in the OMB and worked for Democrats on the Senate Appropriations Committee.
Federal employees have expressed alarm over whether some of the provisions of the contract are actually enforceable, including a portion stating that an employee “forever waives, and will not pursue through any judicial, administrative, or other process, any action” based on their employment, according to an agreement reviewed by The Post.
“The legality is the fundamental question, and nobody has any good answers,” said one staffer at a federal agency. “We’re being required to resign with more outstanding questions than answers, and our leadership knows it. They just say that OPM has ‘communicated that it is legal.’”
A spokeswoman for the OPM, which is being run by Musk’s allies, defended the proposal.
“Union leaders and politicians telling federal workers to reject this offer are doing them a serious disservice,” said spokeswoman McLaurine Pinover. “This is a rare, generous opportunity — one that was thoroughly vetted and intentionally designed to support employees through restructuring.”
‘We don’t know who these people are’
As Musk’s representatives have sought an increasing amount of data from a greater number of federal agencies, their actions have also spawned concerns about the security of classified or sensitive government systems.
Inside the Education Department, some staffers are deeply alarmed by the fact that DOGE staffers have gained access to federal student loan data, which includes personal information for millions of borrowers. Some employees have raised the alarm up their chain of management, several staffers told The Post.
DOGE team members may not be properly authorized under the Privacy Act of 1974 to see the data, experts said. That law says federal agencies cannot disclose an individual’s private information from a set of government records without the written consent of the person.
Under the law, all federal agencies are required to safeguard even unclassified information and ensure that it does not reach third parties or “unauthorized persons,” said Robert S. Metzger, chair of the cybersecurity and privacy practice group at Rogers, Joseph and O’Donnell, a Washington law firm.
Wired has reported that a handful of 19-to-24-year-old engineers linked to Musk’s companies, with unclear titles, could be bypassing regular security protocols. Trump on his first day in office signed an executive order granting interim “Top Secret/Sensitive Compartmented Information” security clearances to an unknown number of individuals on a list compiled by the White House counsel’s office. But people within the government have said they don’t know how much access the DOGE employees should have.
“When persons who are not federal employees and do not possess requisite credentials are allowed into key federal systems, they are gaining access to information to which they are not legally entitled,” Metzger said. “The idea that unvetted persons can go to any federal agency and demand access to information — if they can do that simply because of presidential directive or the mandate of the U.S. Digital Service, it’s frankly preposterous.”
DOGE staffers using their personal email accounts and not identifying themselves by their last names have been involved in recent weeks in interviewing government technology staffers, including at the GSA, according to two federal workers. That has also triggered legal concerns within the federal bureaucracy, in part because of fears that sensitive information could be divulged to private actors.
“We have very strict security protocols about how to deal with non-gov emails, non-gov participation, refusal to identify yourself in a meeting,” said one person, speaking on the condition of anonymity to discuss internal matters. “They’re asking you to share code you’ve written for partner agencies. We don’t know who these people are.”
In an all-hands meeting with his GSA staffers Monday, the director of the agency’s technology arm — Thomas Shedd, an eight-year alumnus of Tesla, Musk’s electric-car company — said the concealment of those names is deliberate.
“As I mentioned in the Slack channel, we’re afraid of those folks’ names getting out and their personal lives being disrupted, which is exactly what happened last week, which is really unfortunate for them,” Shedd said in the meeting, according to a recording obtained by The Post.
Another employee in that meeting raised concerns that Shedd’s plans to overhaul the login system for federal systems could run afoul of the 1974 privacy law. Shedd responded that the idea was for users to consent to sharing their data, but the employee’s concerns underscored how his vision needed greater clarification.
“If we had a roadblock, then we hit a roadblock. But we should push forward and see what we can do,” he said.
Shedd told employees they should be prepared for work demands to become “intense” after cuts across the government, prompting one to ask if it is illegal to work more than 40 hours a week. He told them to follow HR guidance.
The use of AI to analyze government data also raises privacy protection concerns, according to one official worried that DOGE will deploy the technology on a database overseen by their agency. The new administration has already accessed sensitive data from the database, the official said, speaking on the condition of anonymity given fear of reprisal.
“It’s like a wild, wild West in contrast to the measured approaches that federal agencies have been taking to mitigate the misuse or harm of AI,” the official said.
Throughout his career, Musk has frequently made aggressive business decisions with little regard for immediate legal fallout. His firings and mass layoffs of Twitter staff in 2022 invited lawsuits, including one that alleged the company had not abided by early-warning requirements for large-scale layoffs. Musk’s sudden firing of the company’s executive suite, including its CEO, upon his takeover led to a different lawsuit alleging that he had failed to issue tens of millions in severance they were owed.
Twitter was also sued for failing to pay millions in rent after Musk’s takeover, as the billionaire enacted steep cost-cutting.
Changes at U.S. agencies prompt legal concerns
Many of the officials being forced out of the administration have also registered legal objections to DOGE’s actions.
At USAID, officials have objected to what they characterize as an illegal attempt to reconstitute federal agencies established by statute. By summarily merging USAID with the State Department, Trump officials are bypassing Congress, which creates federal agencies and is the only entity empowered by law to close them.
“DOGE instructed me to violate the due process of our employees by issuing immediate termination notices to a group of employees without due process,” wrote Nicholas Gottlieb, the director of employee and labor relations at USAID, in an internal email. Gottlieb also wrote that he had urged the USAID administrator to “desist from further illegal activity.”
At the Equal Employment Opportunity Commission, which enforces civil rights laws against workplace discrimination, one official warned in a widely circulated internal email Monday about the legality of recent government actions. Like other agencies, the EEOC has been under major pressures; Trump fired two of its three Democratic commissionerslast week, and the acting chairwoman sought to roll back some of the Biden administration’s protections for transgender people, moves that several lawyers told The Post are illegal.
“I swore an oath to the Constitution of the United States and the Commission serves the people of the United States,” an administrative judge at the agency wrote to EEOC acting chair Andrea R. Lucas, in a previously unreported message. “If you want to continue following the illegal and unethical orders of our president and the unelected leader of ‘doge’ that’s on you.”
An EEOC staffer said that the email and a follow-up note from a colleague expressing support were deleted from their inboxes. An agency spokesperson declined to comment on internal emails but said that staff were reminded Monday not to send “unauthorized all-employee emails.”
Jocelyn Samuels, who was fired as an EEOC commissioner last week, said she was worried about reports of DOGE getting access to sensitive personnel records at agencies such as the OPM and Treasury, noting the legal safeguards that should be in place.
“Medical records and disability information are supposed to be maintained absolutely confidentially and only shared on a need-to-know basis,” said Samuels, who is weighing whether to challenge her firing.
Tony Romm, Emily Davies, John Hudson and Lisa Rein contributed to this report."
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