Musk's role as ‘special government employee’ raises ethics questions

With Elon Musk now named a “special government employee,” even more questions about ethics and conflicts of interest in the Trump administration are being raised.

In general, a special government employee serves in an advisory capacity to lend their expertise on a temporary basis. They can only serve 130 days during any one year.

Musk’s SpaceX has recorded approximately $3.3 billion in unclassified prime revenue over the past 12 months, according to USASpending.gov. Federal ethics rules require Musk to recuse himself from any decision that he knows can affect his financial interests.

Richard Painter, a former White House lawyer, said Musk can be criminally prosecuted if he does not recuse himself. 

“I don’t think the ethics lawyer is following Elon Musk all over the place to make sure he is following the rules, but it is a criminal statute, so we better be careful,” Painter, now a professor at MidAmerican Nazarene University, told WT. “He’s got to watch himself on this.”

President Trump can give Musk a waiver of the criminal conflict of interest law. But Painter said that move is very rare and should be publicly disclosed.

The White House has said that Musk has “abided by all applicable federal laws.” 

Musk’s financial disclosure forms are confidential, but they should still appear in the databases of the federal Office of Government Ethics as having filed the Form 450 financial disclosure. Those forms are not showing up so far.

The disclosure form requires a wide range of information on assets and sources of income, including for a spouse and dependent children. Other required information includes liabilities and gifts and travel reimbursement.

SpaceX does business primarily with NASA and the Air Force, which respectively have awarded the company $1.7 billion and $1.3 billion during the past 12 months. The Defense Information Systems Agency has awarded $199.2 million in obligations to SpaceX over that timeframe.

No other agency has had more than 0.01% of SpaceX’s contract obligations, according to USASpending.gov.

Starlink, Musk’s satellite communications business, is a subsidiary of SpaceX. That means Starlink's revenue rolls up under SpaceX.

The X social media platform does not appear to have significant federal revenue.

Musk’s activity as a special government employee is uncharted territory for many in government, because he has moved well beyond the advisory role most special government employees play.

He is in charge of the Department of Government Efficiency and has sent people into a wide variety of agencies.

In some cases like the U.S. Agency for International Development, he is looking to greatly diminish the agency or outright dismantle it. The Education Department is also a target of Musk.

DOGE officials won a standoff with the Treasury Department over access to U.S. financial systems, which allows them to see any unclassified financial transaction by the government. This includes Social Security payments, payroll and benefits for federal employees, and payments to contractors.

Only within the past two days, the White House has started to call Musk a special government employee because of questions about what authority he has to take the actions he’s taking.

In general, special government employees do not take the kind of actions Musk has been taking and that could open an avenue to make his financial disclosure forms public. Someone with standing would have to take the White House to court to make that happen.

The argument could focus on Musk working more than the number of days allowed and “he’s carrying out functions that aren’t really special government employee functions,” Painter said. “Therefore, under the ethics of government act of 1978, his financial disclosure form should be publicly available.”

Painter expects that kind of challenge to come if Musk continues with actions that go beyond consulting and advice.

“I could see some judge saying, this is not a special government employee,” he said.