There is an increasing cloud of uncertainty and skepticism surrounding the newly established ‘Department of Government Efficiency’ (DOGE), overseen by Elon Musk and Vivek Ramaswamy, and initiated by President Donald Trump shortly after securing his second term in office. As proposed, this new construct has triggered intense debates relating to transparency and the potential conflict of interest the two billionaire leaders may pose. Although business moguls Musk and Ramaswamy have a remarkable record of accomplishments which may translate into providing value to the federal government, the manner in which this pairing may proceed raises eyebrows.
The peculiar application of the term ‘department’ for DOGE, commonly reserved for federal agencies, has generated speculation. As outlined by the transition team for Trump, following his re-election, they classified DOGE as an external entity, not a traditional government body, which stirred further controversies.
Musk and Ramaswamy, both of whom are averse to the possible divestiture of financial assets in compliance with inside government ethics, seem to be at the center of DOGE’s curious positioning. The requirement for those working within government departments to adhere strictly to the conflict of interest law under 18 U.S. Code 208 impelled this strategic realignment. The named statute prohibits federal employees from participating in governmental matters that could influence their financial interest, thereby implying eventual divestiture for Musk and Ramaswamy.
Potential transgressions against the conflict of interest law can result in felony charges. It encompasses matters including but not limited to industry-wide regulations and federal contracts. Musk and Ramaswamy, who are indisposed to the idea of divesting, own multiple businesses that currently operate under considerable federal oversight and have secure federal contracts.
Their potential insemination into the federal government without the necessary divestiture could spell an obstinate list of conflicts. Thus, it would be more practical and ethically sound for both to maintain a position external to the government. However, with potential influence maintained through their direct line to President Trump, their influence is far from diluted.
This situation brings forth the relevance of the Federal Advisory Committee Act (FACA). The act aims to prevent the formation of secretive advisory committees composed of wealthy individuals who could deliver biased counsel, devoid of the public visibility and accountability expected of government employees. However, it doesn’t restrict the president from garnering advice from such individuals, regardless of their conflict of interest.
The definition of DOGE is challenged by the provisions of FACA. If DOGE manifests as a regular, formalized advisory body, it is required to operate under FACA, necessitating transparency and regulated proceedings through a federal advisory committee. FACA mandates the committee’s proceedings to be publicly accessible, inclusive of public participation, maintaining a record of meetings which has to be available to the public.
Contrary to the more secretive deliberations typical among traditional governmental offices, FACA demands more transparency, even more than what’s expected from the White House or the Office of Management and Budget (OMB), while requiring less stringent adherence to standard ethics rules. Herein lies the trade-off between the disclosure requirements under FACA and the stringent conflict of interest law applicable to government employees.
A potential legal conundrum could present itself if Musk, Ramaswamy, and President Trump reject both the conflict of interest legislation and the transparency demands. Vagueness surrounding DOGE’s formal status could spark a court battle if it claims to operate outside the governmental sphere while simultaneously exercising the power and secrecy conventionally exclusive to federal entities.
If Musk and Ramaswamy fail to divest, they might face accusations of acting as de facto government officials, thereby infringing upon the conflict of interest laws. Conversely, if DOGE genuinely maintains an external status relative to the government, a court might demand its adherence to FACA’s transparency mandates, including disclosure of records and the execution of public meetings.
Any enforcement of FACA could result in the Trump administration challenging the act’s constitutionality with the argument that the president should freely obtain advice from any individual, even those associated with privately-established entities. After standing as law for five decades, any attempt to challenge FACA could lead to an uncertain outcome. The Supreme Court, which has recently been displaying an affinity for executive powers, may be inclined to consider the case, with some justices known to maintain private relationships with billionaires.
At this juncture, the presidential transition team must deliberate and decide the status of Musk and Ramaswamy within or outside the government, alongside the consequential implications. If they remain inside, they are bound by the restrictions of financial conflict of interest laws, whereas if DOGE stays external to the government, it must follow the transparency rules as set out by FACA. Clearly, having it both ways is an untenable position.
DOGE: A New Tangle in the Web of Politics, Business, and Ethics appeared first on Real News Now.
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