Loading summary
Transcript78 lines
- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast.
- [00:08]
Anna Bauer
Become a material supporter of lawfare@patreon.com lawfare.
- [00:15]
Benjamin Wittes
That'S patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull, and the Aftermath.
- [00:34]
Adam Grant
Hey, it's Adam Grant from Work Life, a podcast from TED this episode is brought to you by freshworks. Freshworks believes that complexity is the enemy of efficiency. So stop wrestling with bloated, expensive service software that takes forever to implement an update where ROI is someday, not today. You've been overcharged and underserved for way too long. Uncomplicate with fresh service for it and fresh desk for customer support. And with Freshworks AI assisted service software, you'll work smarter, not harder. Freshworks uncomplicates. Learn more@freshworks.com Are you still quoting 30 year old movies?
- [01:13]
Unknown
Have you said cool beans in the past 90 days? Do you still think Discover isn't widely accepted? If this sounds like you, you're stuck in the past. Discover is accepted at 99% of places that take credit cards nationwide, and every time you make a purchase with your card, you automatically earn cash back. Welcome to the now it pays to Discover. Learn more@discover.com credit card Based on the February 2024 Nielsen report.
- [01:44]
The White House is being very unclear on and resistant to questions about what Elon Musk's employment status is and who the actual administrator of Doge is. And so that's kind of where this question started.
- [02:02]
Benjamin Wittes
It's the lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, with Senior Editor Anna Bauer.
- [02:11]
Unknown
When there's a goodbye party, Trump said Doge is his baby. He'll continue to advise. So it's really just unclear in all of these instances, like what can you take at face value and what is actually going on. So there's this multiple kind of reasons why this question will continue to be relevant.
- [02:34]
Benjamin Wittes
Who is the administrator of Doge? Anna asks in a long and hilariously funny lawfare article entitled the Wittowed Chronicles.
- [02:47]
Anna Bauer
But the who is the administrator of.
- [02:49]
Benjamin Wittes
Doge Quest is not all comic. There are some deadly serious questions behind it. She joined me to put them all out front. So Anna, you wrote a very long piece last week.
- [03:05]
Unknown
I wrote I want to say it's 11,000 or 12,000 word piece. Yes, unfortunately. Hopefully it is more fun to read than it was to write. It took a long time, but I think it was worth it.
- [03:22]
Benjamin Wittes
There are many comic aspects of this piece, and we may touch on some of them and we have in various other formats. But I actually want to spend this conversation entirely on the serious aspects of this. So if we had to remove all the elements that were theatrics and comics from comical. From the 11,000 words. How many words are serious?
- [03:53]
Unknown
There are a lot of serious words, Ben. It's a very substantive piece, though. It is. I think someone described it as in a comedic and whimsical wrapper. But look, this is ultimately, at its core, a piece that is substantive. It is about the Appointments Clause, and it's about other litigation as well that is going on surrounding the dismantling of the federal government by Doge. And then it's also about, you know, how Justice Department attorneys are representing themselves in court. And we'll get into all of that, I'm sure. But it, at its core very much is trying to get at revealing, you know, this question or series of questions and trying to really express why these questions are important as they relate to that litigation and those aspects of that litigation.
- [04:51]
Benjamin Wittes
Okay, we're only going to do this once, and then we're just going to use the phrase, what does Witoed stand for?
- [05:00]
Unknown
WTOed means who is the administrator of Doge? It is a question, as I said, that is a proxy for a series of questions that is trying to get at, you know, who is in charge of Doge. What is the chain of command at Doge? What is its organizational structure? It is something that has, from the very beginning, been kind of unclear. Those series of questions. Think back to what happened on day one of Trump's presidency, or even before that. There was all this talk around Doge, this organization that's going to be named after a meme coin. There were questions surrounding, like, okay, it's. It's going to be led by Elon.
- [05:53]
Benjamin Wittes
Musk, named after a meme coin, which is in turn named after a dog.
- [05:58]
Unknown
A dog that and a me. Like, yeah, and a dog that's a meme. I. I don't know. I don't like. It's. It's very silly, Right? And it's because Elon Musk thought that it'd be funny to name this organization after a meme and a meme coin. And back in November, we get this official announcement from Trump that this Department of Government Efficiency, as it's known, even though it's not really a federal department, would be led by Elon Musk and Vivek Ramaswamy, who by the time inauguration rolls around, is no longer a part of doge. But it's kind of unclear exactly what DOGE is going to be. At first, it seems like based on reporting and then also Trump's own statements, it's going to maybe be a federal advisory committee, so a group of kind of outside advisors who, who are, you know, just giving recommendations. And then on day one of Trump's presidency, he issues an executive order. And we're all a little bit surprised because the way that they did it, and it actually kind of got to hand it to him that it is a little bit clever. What they did instead was take a already existing entity within the Executive office of the President, known formerly as the United States Digital Service, and they rebranded it, they gave it a new name, the United States DOGE Service.
- [07:28]
Benjamin Wittes
Super clever, right? Found, found a federal component with USD Service, and you just change what the D stands for and you've got a doge. Yeah, yeah.
- [07:43]
Unknown
And right. And so now you've got the United States Doge Service. But it wasn't just that they changed the name. Like, look, the United States Digital Service was focused, yes, on technological innovation. People, I think popularly have identified it with fixing the healthcare site, but it did a lot more than that. There were things that the U.S. digital Service did that does kind of overlap with the way that some people, some of the projects that DOGE has apparently engaged with. But in this executive order, there's like a bunch of other things that they give DOGE the responsibility for. Right. Like they, in addition to this software modernization aspect of it all, they also want DOGE to have access to all this unclassified information within agencies. And then there's all these other executive orders that come up where the United States DOGE Service and its administrator will be responsible for consulting on hiring plans and firing plans and all of these other things. And so it seems like the US Digital Service has been fully transformed into something else. And a part of that too is that there's this figure known as the administrator that is described in the executive orders that rebrand the U.S. digital service into Dogecoin. The administrator, like I said, is the kind of the person who's supposed to be consulting with the agencies heads, is leading the U.S. dOGE service, also is kind of a liaison with these DOGE teams that will be established within each agency, and then finally also heads a subcomponent of the US DOGE Service, which is known as the US DOGE Temporary organization. So it basically is, is kind of, you know, the, the leader, the head of DOGE and You would think, Ben, that the person who fills that role would be the person who has publicly been identified throughout months, you know, leading up to the inauguration, as the person who's the head of Doge. But as Doge starts doing its work, as we get weeks into Trump's presidency, the White House is being very unclear and resistant to questions about what Elon Musk's employment status is and who the actual administrator of Doge is. And so that's kind of where this question started. And it really snowballed from there because, as I've mentioned, it became kind of a stand in for this broader inquiry as it relates to Doge and its chain of command and its organizational structure.
- [10:38]
Benjamin Wittes
All right, so help me out. Why is the question important in the sense that Trump's allowed to. Either allowed to do the things that Doge does or he's not, and he's allowed to take advice from anybody he wants, including Elon Musk. So what does it matter how Doge is structured? And what does it matter whether Elon Musk or somebody else is formally the administrator?
- [11:19]
Unknown
Yeah. So it matters for a few reasons. Let's start with the question about what does it matter how Doge is structured? So one thing that the executive orders kind of set out in creating or rebranding the US DOGE service is that they all kind of seem to suggest that Doge has this advisory kind of role. Right. That that's how they're structuring it. Of course, they're structuring it within the executive Office of the President. The United States Digital Service actually used to be, when it was still the United States Digital Service, used to be. Used to be under omb. They kind of disaggregated it from OMB and made it its own thing, but they're still saying that it's solely just an advisory body. And the executive orders, if you're following just the letter of those orders, they certainly suggest that. And one reason that this is interesting is because it seems really disconnected from just the reality of the situation, which is that it seems certainly seems like Doge is not just an advisory body. It's going out and doing things like ordering the mass firings of federal employees, it's dismantling agencies. It is doing things that really do not seem to be advisory. And, and this relates to some of the litigation that we're seeing that that came up within the first few weeks of Doge really getting started doing its work, which relates to FOIA and this question about, you know, whether Doge is subject to foia. And in those cases, the government has said, oh, well, DOGE is just an advisory body. It's within the executive office of the President. And typically those types of entities, you know, that's a confidential kind of thing between the President and his advisors. And if it's just advisory, then it's not subject to foia. It's instead subject to the Presidential Records act, which, you know, we want to get any of those records that they would have to preserve until years and years down the line if it is just subject to the pra. But a crew good government organization, Government Accountability Organization, filed suit arguing that, no, no, no, DOGE is subject to foia. And a part of that litigation involves this question of whether DOGE is an agency subject to foia. And to, you know, show that DOGE is an agency, they'd have to. This involves this question of whether or not DOGE exercises independent, significant authority. And so the structure of DOGE really matters, and what DOGE is really doing organizationally matters for that reason as it relates to that litigation. Then there's the other big question about why doge's leader matters. And I think that this is really one of the key points, and it relates to the Appointments Clause of the Constitution. Within the first few weeks as DOGE got to work dismantling agencies and firing federal employees en masse, we saw some Appointments Clause litigation come up. And in those cases, what's really in play is this question of whether or not Elon Musk, or if it's not Elon Musk, whoever is leading Doge, whether the leader of DOGE was properly appointed. Because the Appointments Clause, of course, Ben, as you know, is a clause of the Constitution that basically makes it such that these things called offices, government offices that are occupied by people who wield positions of significant authority and power within the government, they have to be properly appointed pursuant to the Appointments Clause. So it's Congress's job to create these offices, and then it's the President's job to fill them. And when the President fills these offices, it has to be in compliance with the methods set out in the Constitution. And so you have these people named officers. Again, those are the people who, as the Supreme Court has said, wield significant and continuing authority within the government. They're distinct from people who are, you know, just mere employees who are maybe less powerful, but generally somebody like a principal officer, which is one of the types of officers that you can be. There are two types is someone like a cabinet head who really just wields A lot of power within the government, and they have to be appointed by the President and confirmed by the Senate. There's also a second category of kind of less powerful but still powerful people known as inferior officers. And generally the default rule is the same if you're an inferior officer, you know, generally nominated by the president, confirmed by the Senate, but they also have different alternative routes for being appointed if Congress allows for one of those alternative routes. So that's kind of the gist of what officers are and what the Appointments Clause requires. And with Doge, you kind of have this question where you've got someone in charge of Doge that seems to be very powerful, seems to be directing agency action, seems to have the ability to order agency heads to do certain things. That's a really powerful job within government. It seems like the kind of thing that means that person would be an officer of the United States. And yet, A, we don't really know who it is because early on it wasn't clear who it was. And then, B, that person has not been nominated by the President, confirmed by the Senate, as the Appointments Clause would require. And so a number of different litigants have brought cases arguing that Elon Musk is the de facto leader of Doge, and because he's leading Doge without having been through the proper appointments process, then his continuing to wield that power violates the Constitution and that many of Doge's actions as a result are ultra virus and should be void.
- [18:12]
Benjamin Wittes
All right, so if Trump wanted to do this in a bulletproof fashion, as you're describing, seems to me he would do one of three things. One is actually make Doge genuinely advisory. It can go in, it can gather information, and then it can make recommendations to either the President or the Cabinet secretaries. But it can't take action by itself. Right, right. That would be bulletproof. The second bulletproof option would be to constitute an office in statute that had actual executive power delineated in statute, for which the leader, the administrator, would probably have to be nominated by the President and confirmed by the Senate. And then you could presumably give it any powers over the executive branch that you. You wanted. Right, Right.
- [19:20]
Unknown
I think that's right.
- [19:21]
Benjamin Wittes
And it seems to me what they've done is a third option, which is doing the second, but dressing it up as the first, which is to say in court, you say this is all advisory, but in fact, you have a agency, a person who is wielding substantial authority over. Over the agencies, ordering hirings and firings and that sort of thing, but you're not acknowledging it. And then you're obfuscating what that person's actual role is.
- [20:01]
Unknown
Right. And I think that that's the that that last part is. The thing I would add is it's not just that you're or you're saying you're doing one, but you're really kind of kind of doing, too, without going through the appointments process. It's also that the person who is wielding this power, you're saying that they're not actually wielding this power because you're saying they're not the ones who's for who is formally occupying this role. At least that's what your line in court is. And much of this piece that I wrote is about how there's this divide between what the administration was saying publicly about Elon Musk's role, in which they were saying over and over and over again that he's overseeing Doge, he's leading Doge, that he's the head of Doge. I mean, you have all of these statements by the president himself saying these things, but you have the president's press secretary saying these things. You have all these people saying these things about Elon Musk being in charge. You have Elon Musk himself acting like he's in charge, you know, saying that he's in charge. And then you have Justice Department attorneys, you have White House officials who are making declarations swearing that he has no official role in Doge, that he is not an employee of Doge, that he is not the administrator of Doge. And so you, you have this issue where the public line is just drastically different from the line in court. And that brings me to another reason why this Wataud question was important, which is that it raises questions about the ethical duty that lawyers have to not mislead the court, to be candid with the court. Because what we've seen over and over and over again around this question, who is the administrator of Doge or who is leading Doge, is that there is that gap between the public line and then the official line in court.
- [22:11]
Benjamin Wittes
Yeah. So I want to bore in on the question. If the theory of the case, and we're going to get to whether the theory of the case is simply a lie, but the administration's theory is Doge is purely advisory. Why does it then matter if Elon Musk is the administrator of Doge? Not why not just concede, okay, yeah, he runs the Doge service, but he doesn't exercise any executive power because it's just advisory. Why go through the extra Step of denying. What work is that? Extra step of denying that he is the administrator of Doge. What is it doing?
- [22:59]
Unknown
Well, look, part of it might be that right now Elon Musk or Elon Musk's role was as a special government employee. That is typically a kind of short term status that one has within the federal government. There's, you know, rules around you can only work 130, I think it is, out of 365 days. Typically it's kind of a role that is given to people who are experts, but they work in another field and they kind of are coming in to give expert consulting or advice to the government. Honestly, typically there are very similar ethics rules that special government employees are supposed to follow. Although my understanding is that it's sometimes in a less stringent way than the, than there would be in other circumstances. Of course, there's been lots of questions about Elon Musk's conflicts of interest and whether he is following all of the ethics rules that apply to government employees. And so one reason why you might be reluctant to name Elon Musk as the administrator of Doge might have something to do with some of those ethics questions about whether he can be the administrator of Doge formally and officially and also still maintain his other interest in his companies and SpaceX and Tesla, all those private interests that he has. I will also just say in terms of a kind of double layer of protection, let's say the government isn't so sure that this whole Doge is just advisory thing is going to fly with the courts. You know, denying that Elon Musk has an official role at Doge is also still useful both to shield potentially his communication. Like let's say, for example, the FOIA litigation doesn't quite pan out and a court decides that, yeah, Doge is an agency subject to foia. Well, if Elon Musk, it doesn't have an official role at Doge and he is just a special government employee, advisor to the President, that's totally separate, then you might still be able to shield some of his communications that you might not want to be public even if you lose your, your FOIA litigation. So there are things like that. And then in the Appointments Clause stuff, one reason why you don't want Elon Musk to formally be the administrator of Doge. Again, if the courts don't buy the, the whole Doge is just advising thing, you know, you don't want it to be so easy as to just have, oh well, Elon Musk is the head of Doge. One of the things that we've seen in these cases been is that this question around whether Elon is the head of Doge is particularly important to one prong of the Appointments Clause litigation that relates to this question about whether or not someone is serving as an officer. And that is the question about whether the person is a continuing, holds a continuing position in government. And so what, what continuing means is just like something that is not personal to the person. Like it's not a position that is just for Elon Musk. Like it's something that Elon Musk could be appointed to it, or Ben Wittes could be appointed to it. And when you think about what the administrator of Doge is as a position, like you could be appointed to it, I could be appointed to it, or Elon Musk could be appointed to it. And you kind of want to close off this idea that someone holds a continuing position. And one way that you might do that is by saying that they're just a temporary presidential advisor as opposed to the administrator, who there's going to be a next one after that.
- [27:07]
Anna Bauer
It sure is an interesting time for business. Tariff and trade policies are dynamic, which means all over the place supply chains are squeezed and cash flow tighter than ever. If your business can't adapt in real time, you're in a world of hurt. You need total visibility, from global shipments to tariff impacts to real time cash flow. And that's what NetSuite by Oracle, your AI powered business management tool, which is trusted by more than 41,000 businesses gives you. NetSuite is the number one cloud ERP for a whole lot of reasons. It brings accounting, financial management, inventory, HR into one suite of tools. So you have one source of truth giving you the visibility and control you need to make quick decisions. With real time forecasting, you're peering into the future with actionable data. And with AI embedded throughout, you can automate a lot of those everyday tasks, letting your teams stay strategic. NetSuite helps you know what's stuck, what is costing you, and how to pivot fast. So look, Lawfare, we don't do imports, we don't do global supply chains. But you know, someday in our world domination quest, we're gonna, we're gonna have it all. And this is the product we're gonna use. It's one system, full control. Tame the chaos with NetSuite. If your revenues are at least seven figures, download the free ebook Navigating Global Trade through Three Insights for Leaders at netsuite.com lawfare. That's netsuite.com lawfair.
- [29:07]
Unknown
This episode of the Lawfair Podcast is brought to you by Wildgrain. Wildgrain is the first bake from Frozen Subscription box for artisanal breads, pastries and pastas. Wildgrain's boxes are fully customizable to your tastes and dietary restrictions. In addition to their classic variety box, they recently launched a new gluten free box and a plant based box that is 100% vegan. Best of all, they take the hassle out of baking since all items bake from frozen in 25 minutes or less with no mess or cleanup. I've been really impressed by how easy Wildgreen makes the whole experience, everything from online ordering to tracking deliveries, to unpacking and storing, and of course, the baking itself. Are you ready to bring all your favorite carbs right to your doorstep? Be sure to check out Wild Grain so you can begin building your own box of artisanal breads, pastas and pastries. For a limited time, Wildgrain is offering our listeners $30 off the first box plus free croissant in every box when you go to wildgrain.com lawfair to start your subscription. You heard me. Free croissant in every box and $30 off your first box when you go to wildgrain.com lawfair that's wildgrain.com lawfair or you can use promo code Lawfair at checkout.
- [30:31]
If you're an experienced pet owner, you already know that having a pet is 25% belly rubs, 25% yelling drop it. And 50% groaning at the bill from every vet visit. Which is why Lemonade Pet Insurance is tailor made for your pet and can save you up to 90% on vet bills. It can help cover checkups, emergencies, diagnostics, basically all the stuff that makes your bank account nervous. Claims are filed super easily through the Lemonade app and half get settled instantly. Get a'@lemonade.com pet and they'll help cover the vet bill for whatever your pet swallowed after you yelled drop it. Better help. Online therapy bought this 30 second ad to remind you right now, wherever you are, to unclench your jaw, relax your shoulders, take a deep breath in and out. Feels better, right? That's 15 seconds of self care. Imagine what you could do with more. Visit betterhelp.com randompodcast for 10% off your first month of therapy. No pressure, just help. But for now, just relax.
- [31:50]
Howie Mandel
I can't tell you how often I hear oh, I'm a little ocd. I Like things neat. That's not ocd. I. I'm Howie Mandel, and I know this because I have ocd. Actual OCD causes relentless, unwanted thoughts. What if I did something terrible and forgot? What if I'm a bad person? Why am I thinking this terrible thing? It makes you question absolutely everything and you'll do anything to feel better. OCD is debilitating, but it's also highly treatable with the right kind of therapy. Regular talk therapy doesn't cut it. OCD needs specialized therapy. That's why I want to tell you about NO cd. NOCD is the world's largest virtual therapy provider for ocd. Their licensed therapists provide specialized therapy virtually and it's covered by insurance for over 155 million Americans. If you think you might be struggling with OCD, visit nocd.com to schedule a free 15 minute call and learn more. That's nocd.com.
- [32:52]
Benjamin Wittes
So the administration's answer to this, which is that Elon Doge's functions are purely advisory. And in any event, Elon, who clearly is not now the administrator of Doge, given what he's been tweeting.
- [33:09]
Unknown
Well, yeah, yeah, you're right.
- [33:12]
Benjamin Wittes
Never was. And the administrator of Doge is this woman, Ms. Gleason, who. Who no one had ever heard of before. And so Doge's role is purely advisory and Elon is just a presidential advisor. That is the position they've taken in court, as I understand it. I take it you think it is at least somewhat clear that that is not true.
- [33:42]
Unknown
Right? I mean, look, yes, they do have this person, Amy Gleason, who, who used to work at the United States Digital Service, then went to work for Brad Smith, who is one of Musk's top lieutenants at Doge, and then was publicly named after weeks of, you know, speculation and questioning from reporters about who the administrator of Doge is. Lo and behold, Amy Gleason is named as the administrator of Doge. There are certainly things that, though, don't seem to fit with her having any real authority at Doge. And that's really the question here, is like, maybe Amy Gleason is the official acting Administrator of Doge on paper. But what you're really getting at is, you know, who really was pulling the strings, who was calling the shots at Doge at these relevant, you know, very critical time periods, like when USAID was dismantled, because that's the subject of one of the Appointments Clause cases. And like, one reason why it seems like Amy Gleason didn't have real authority for one thing, the President was saying at that, even after she was appointed, I, I mean, quite literally saying things, I signed an executive order, and I put a man named Elon Musk in charge. That's clearly a reference to the executive order that established do the United States Doge Service. Then you have depositions, for example, in which there's this really, like, careful parsing of language by Doge representatives. In one case, a woman named Kendall Linman was deposed as a 30B6 witness, which is a witness who was representing kind of the institutional entity of Doge. And when questioned about Amy Gleason's role and about Amy Gleason's interactions with other people at Doge, Kendall Linman repeatedly said very carefully things like, Amy Gleason has formal authority over Steve Davis, over, you know, whoever else is at Doge. So it's this very, like, careful parsing of language that is in other examples in the filings as well, in which the government has. This takes this, like, really formalist perspective in which they are trying to argue that the only thing that matters is what is on paper in the executive orders, or when it comes to the administrator, whose name is on the paper as the administrator. But what the courts are looking at here for the most part is, well, how are things operating in practice? Of course, it's relevant what the executive orders say and who the administrator is on paper. But courts have not really, thus far accepted this very formalist perspective that the government is putting forward, whether it's in the Appointments Clause litigation or most recently in this FOIA litigation in which they want the courts only to look at the language of the executive orders and then who the kind of formal occupier of the administrator office is, and what's.
- [37:28]
Benjamin Wittes
The court's alternative to that? I mean, it does seem a little bit odd if the President identifies Amy Gleason as the administrator of Doge, to say, no, we don't believe you. We think the real administrator of Doge is Elon Musk.
- [37:44]
Unknown
Well, but, Ben, I think, like, to. To push back on that a little bit. Like, look, if you're taking really seriously the idea that the President's statements matter, well, you have examples of the President saying that Elon Musk is in charge. Right. And so, yeah, you do have some conflicting evidence. And one of the questions for the court, especially at the district court level, will be these factual. Resolving this factual dispute about who it is that is the real administrator of Doge. And we haven't. We do have some early examples of courts trying to resolve this question. But a lot of this litigation is at a very early pre discovery phase. We haven't yet gotten to discovery, but at least one judge did find, you know, as a factual matter at the district court level in deciding a preliminary injunction found that Elon Musk was acting as the de facto administrator of Doge at the time that certain actions to dismantle USAID were taken. That preliminary injunction was then appealed by the government up to the Fourth Circuit. A three judge panel on the Fourth Circuit, two of them disagreed with Judge Chuang. And essentially, you know, it was a bit unusual in that typically appeals courts aren't reviewing the factual determinations of the district court, but they took issue with Judge Chuang's reliance on things like news reports and essentially said, no. Elon Musk is a senior advisor to the President. And so therefore, we don't think that he was leading Doge. But ultimately, Ben, this is a factual question that the courts are going to have to look at. And we just have not yet gotten to a stage where there's any real fact finding that's based on discovery that the parties have gotten in part because the government has fought tooth and nail to avoid discovery that the preliminary discovery that judges have ordered thus far.
- [40:07]
Benjamin Wittes
How does Musk's break with the President affect all this? So your article stops the day that Musk leaves, but in the few days since then, he has today, this is Tuesday, as we record Ford the third. He has tweeted denouncing the big beautiful bill. He seems to be picking fights with the President. What if Elon Musk comes out and gives a deposition that says, or an affidavit that says, yeah, I was the administrator of Doge. I mean, we called Amy Gleason the administrator of Doge, but guess what? I was actually in charge. Does the formalism yield to that?
- [40:55]
Unknown
I mean, it seems like it should, right? It seems like that would be really detrimental to the litigation position of the Justice Department and the Trump administration. Again, it depends in part on whether the courts accept this really formalist posture that the, that the government is urging it to take in terms of just looking at the language of the executive orders and who is on paper the administrator. But yeah, I mean, Elon Musk certainly could do some damage to the litigation positions of the government by saying something to that effect. I will say, though, even if he doesn't, you know, this question, who is the administrator of Doge? It's not just who it is now. Right. So even if Elon Musk is out of Government. The backward looking question of who was the administrator of Doge at the time that these actions were being taken will continue to be relevant as we go through this litigation in likely years to come, potentially, as the courts litigate these Appointments Clause cases, as there are other cases related to Doge and its chain of command that are litigated. So this question isn't going anywhere. Just because Elon Musk is leaving government.
- [42:19]
Benjamin Wittes
And why does it stick around? Like, if the answer is Elon or not Elon, why does the question survive the resolution of the not Elon question?
- [42:32]
Unknown
Well, I mean, so as I said, one reason being that these cases, it's kind of like you're looking back at who was in charge at the time these actions were taken. Right. So who actually shut down the US Aid building that happened in end of January, early February. So even if Elon's gone, it, there's a retrospective aspect to it all where you're looking back to ask who was in charge. And then going forward, of course, like, you know, even if Elon Musk is gone and now Elon Musk is saying he's not in charge of Doge, the he's finally on the same page as the government who says that he's technically not in charge of Doge, but then that raises the question of like, well, who is in charge of Doge? Is it Amy Gleason? Seems like probably not. And if Doge is going to continue to act the way it has in the past, then you still have an Appointments Clause issue that isn't personal to Elon Musk.
- [43:35]
Benjamin Wittes
You still want to know who to hold responsible politically accountable for things that it does that you might not approve of.
- [43:43]
Adam Grant
Right.
- [43:43]
Unknown
And I also will add as well that, you know, even though we're sitting here assuming that everyone is being forth right about what Elon Musk's role will be in the future, that he, he is saying that he's not a part of Doge? It does seem like that now maybe is the case because of the tension between Trump and, and Musk, that has kind of come into public view. But at the same time, there's been so many contradictory statements about this, Ben. I mean, the very day that Musk announced that he was, his time as a special government employee was coming to an end. The vice President went on TV that night and said, oh, no, no, he's going to continue advising. He'll always be around. And then the next day when there's a goodbye party, Trump said, doge is his baby, he'll he'll continue to advise. So it's really just unclear in all of these instances, like what can you take at face value and, and what is actually going on? So there's this, you know, multiple kind of reasons why this question will continue to be relevant.
- [44:53]
Benjamin Wittes
All right, how did you get interested in this question?
- [44:59]
Unknown
Well, being Lawfare's intrepid reporter in the courts, I think that I got interested in this question. One, because as I mentioned, it arose in a lot of the litigation that we're covering. But two, it largely had to do with the disconnect that I was seeing between the public statements that were being made. And then I would go to court for a hearing and judges would point blank, ask Justice Department attorneys, who is in charge of Doge? Or what is Doge's chain of command? Or how is any of this working? And Justice Department attorneys wouldn't be able to answer. Or eventually, once it became clear that the official party line was that Amy Gleason was in charge, would say that Amy Gleason is in charge even when the President was out in public saying things like, Elon Musk is the head of Doge, or Elon is in charge. And as someone who, you know, thinks that it's really important for attorneys to abide by their duty of candor and their ethical responsibilities, you know, I think that that's one reason why I started focusing on it, because I was watching to see how the attorneys in court would react as these facts in the public realm became much more complicated for them to continue to have this legal position that Elon Musk wasn't in charge.
- [46:32]
Benjamin Wittes
As we mentioned at the beginning of this conversation, this conversation is a serious version of something that in the piece you wrapped in a very light.
- [46:48]
Unknown
Rapper.
- [46:50]
Benjamin Wittes
And, you know, the, the piece itself has a very comic flavor to it. And I'm wondering what about it lent it that air of absurdity that caused you to treat it that way.
- [47:06]
Unknown
I, I mean, it look, so much of Doge kind of makes you feel a little bit like you're living in a, like Adam McKay, like the big Short meets the Social Network meets, I don't know, something just completely absurd. It all felt very surreal anyway because you have this cast of 20 something year old people who are being given access to things that usually only career government officials have access to that are being tasked with dismantling these federal agencies that are responsible for, in many cases, you know, life saving services. So there's this absurd element to Doge anyway. And then you have, you know, the tech billionaire who's in. Who's allegedly in charge of it all. So there's kind of this already background absurdity to it all. And then you have this element to it where it's like you can't even. Even the people who are defending these actions in court can't even tell you who's in charge of it all. And. And it just felt like I was living in this kind of Kafkaesque, you know, just absurd situation. You know, at one point after a hearing in New York, I ran up to an attorney who was leaving court who had just been representing the government defending the actions of Doge. And I said, who is the administrator of Doge? And he, you know, throws back, I don't know the answer to that. And then, you know, gets in a car, rides off into the New York haze. And it just felt like I was a character on this. And you. At. Sometimes you just couldn't help but find it. It's because it's not a funny story, but it. You couldn't help but find that there was something so absurd about it that you just kind of had to make it into a comedy. And. And because it just kept going and going and going and going, every single day, there would be some new evidence to suggest one way or the other who the administrator of Doge was. And it felt like the way to get people interested in it was to make it funny.
- [49:44]
Benjamin Wittes
So tell me about the reaction to it. So you created this slightly unhinged Persona who is obsessed with this question witoed. And to some extent, you really lived the bit.
- [50:04]
Unknown
Yeah, I said at one point, first I was performatively going insane, now I'm actually going insane.
- [50:12]
Benjamin Wittes
Right. And it all has the vaguely kind of Bridget Jones diary quality, except instead of searching for a romantic life, you're searching for the administrator of Doge. So talk to us a little bit about what the reaction to reporting this story, which has this very serious set of issues underneath it in this highly comical, performative way that, you know, at some level takes the issue very seriously, but at some level acknowledges the absurdity of the situation, which. What was the reaction to it?
- [50:57]
Unknown
I. Look, the reaction has been fantastic to it. I think that, like, again, this is a very serious subject, but I think that people, if they have to read about something this serious, it helps that to entertain. And I think that people have really appreciated that there's something about it that's both informative and entertaining and that they get a laugh at least. And if I can make people get to the end of a 12,000 word piece by making them laugh, then I think that that's a success.
- [51:36]
Benjamin Wittes
We're not trying to scare the listener off here. When we say 12,000 words, just start at the beginning and if you're not laughing, stop.
- [51:45]
Unknown
Or take it in as like a serial. You know, you can get like into a few days of the diary and then stop and then come back to. To it. But, you know, I think too, Ben, one reason why the reaction to it has been what it, what it's been is that it took this piece, it took me about three months to write it, because so many things kept happening every single day that I had to add to the diary. But, but also during that time, you know, I. For our listeners who don't follow me online, like on Blue sky or Twitter or whatever, every single day, I would be kind of actually living, like the things that were happening in the piece were actually things that were happening because I. Even though it's a kind of put on Persona that I have in the piece, I really was making an intern, an Internet movement out of it, so to speak, because I was talking about it all the time. I was making jokes about it all the time. There's now a group of people who, you know, will call themselves the watoadlings. And there's even one guy who like put watoad on a protest sign. There are people who will like write watoad and have their dogs take pictures with it. And it's like it really was kind of becoming a movement of tens of people, which we joke about in the piece, but really did become a thing. And so I think that people reacted to it in a way that. In the way that they did because they'd been building. Had been building and building and building.
- [53:29]
Benjamin Wittes
Yeah. So that's a really interesting dimension. And one of the interesting dimensions of that is how the court action interacts with the building movement. So, you know, you start frenetically tweeting, who is the administrator of Doge? Who is the administrator of Doge? Who is the administrator of Doge? And the next thing you know, judges are asking, who is the administrator of Doge? And I'm wondering if you have any sense of to what extent that's just that the judges were being driven by the same question, driven crazy by the same question that you were being driven crazy by. And to what extent do you think there were judges who were secret with toadlings?
- [54:20]
Unknown
Well, look, I. I can't speak to whether or not there are any federal judges who have intentionally joined the WIToad movement. Of course, they probably identified these issues, as I did early on. But I. I will say, Ben, that we have, as I say in the piece, whether they know it or not, there have been at least three federal judges who have joined the Witch Hod movement. And by that I mean these are federal judges who, around shortly after the time that I started really talking about this question a lot, a number of federal judges started asking and really like, zeroing in on the same question.
- [55:04]
Benjamin Wittes
But you have no evidence that they. They didn't, like, you know, follow you on Twitter first?
- [55:10]
Unknown
I know they did not, as far as I'm aware, no. But what I will say, I do know because I had a number of reporters call me and talk to me, you know, off the record or on background about this question when I started talking about it online a lot. And they. They were just calling to try to understand, you know, why this was an important question and why I was going on and on about it. So I do know that there were, you know, mainstream press reporters who started asking this question and started focusing on it because we were talking about it so much. And then some of those same reporters ended up being reporters who, you know, in the White House press briefing room, like, would ask the question. And so I do know that there was some type of influence, I think, because we started talking about this question so much that it. It started becoming more of a thing whether that would have happened anyway. I mean, probably because it's a very important question, the legal cases, but I think the wattoadlings in my mind, I like to think the watodlings had something to do with it.
- [56:27]
Benjamin Wittes
Now that he is out of government, are you going to contact Elon and ask him, were you the administrator of Doge? I think, like, you know, a sort of debrief interview with Elon. In retrospect, do you think you were the administrator of Doge is an important coda to the story.
- [56:51]
Unknown
You know, Ben, if there is anyone out there who can get me an interview with Elon Musk, I would be overjoyed to sit down with the suspected former administrator of Doge and ask him if he really was the administrator of Doge. I do have his government email address, but I don't have his. Unfortunately, I do not have Elon Musk's contact information.
- [57:18]
Benjamin Wittes
So tweet at him.
- [57:19]
Unknown
Yeah, well, I've been. Actually, I did ask him. I've asked him multiple times on Twitter with no response. He did tweet something yesterday to the effect of who is in charge at CNN in reference to some CNN interview he was unhappy with. And so my reply to him was.
- [57:41]
Benjamin Wittes
Who is in charge at the United States Doge service?
- [57:45]
Unknown
Exactly. So, no, I'm still waiting, Ben.
- [57:48]
Benjamin Wittes
All right.
- [57:49]
Unknown
Yeah, we'll see.
- [57:50]
Benjamin Wittes
Elon, if you're listening, please come on the Lawfare Podcast to discuss whether you were ever the administrator of DOGE with Anna Bauer. We promise you a fair hearing on all claims. I think you'll find it a good format. Anna Bauer, you're a great American and thank you for joining us today.
- [58:18]
Unknown
Thanks so much.
- [58:23]
Anna Bauer
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfairmedia.org support.
- [58:41]
Benjamin Wittes
You'll also get access to special events.
- [58:44]
Anna Bauer
And other content available only to our supporters. Please rate and review us wherever you get your podcasts. And look out for our other podcast offerings, including Rational Security, Allies and Escalation. Our latest Lawfare Presents podcast series on the war in Ukraine.
- [59:04]
Benjamin Wittes
Check out our written work@lawfaremedia.org the podcast.
- [59:09]
Anna Bauer
Is edited by Jen Patya and your audio engineer. This episode was me. I Did it Myself. Our theme song is from Alibi Music.
- [59:20]
Benjamin Wittes
As always, thank you for listening.
- [59:31]
Unknown
1-800-Flowers.Com knows that a gift is never just a gift. A gift is an expression of everything you feel and helps build more meaningful relationships. 1-800-FLowers takes the pressure off by helping you navigate life's important moments by making it simple to find the perfect gift. From flowers and cookies to cake and chocolate, 1-800-flowers helps guide you in finding the right gift to say how you feel. To learn more, visit 1-800-flowers.com acast that's 1-800flowers.com acast.