The Department of Governmental Efficiency (DOGE) Lacks Legal Structure and Promised Transparency | naked capitalism

By Lambert Strether of Corrente.

“A nation,” he heard himself say, “consists of its laws. A nation does not consist of its situation at a given time. If an individual’s morals are situational, that individual is without morals. If a nation’s laws are situational, that nation has no laws, and soon isn’t a nation.” –Milgrim, Spook Country (William Gibson)

Of all the strange creatures engendered during the interregnum between Trump’s election and his inauguration, the strangest of all must be DOGE[1] (the Department of Government Efficiency): Nobody (including Grok) seems to know what it is! I’m not entirely clear what that means for “keeping” The Republic, but it can’t mean anything good, as I will discuss briefly in the Conclusion to the post.

DOGE’s origin story begins on August 19, on the campaign trail:

Asked if he would consider naming Musk to an advisory role or cabinet job, Trump said he would. “He’s a very smart guy. I certainly would, if he would do it, I certainly would. He’s a brilliant guy,” Trump said.

Elon[2] responded with the following AI slop post:

I am willing to serve pic.twitter.com/BJhGbcA2e0

— Elon Musk (@elonmusk) August 20, 2024

Trump vollyed back on September 5:

Speaking at the Economic Club of New York on Sept. 5, Trump restated his support for the digital asset [sic] industry.

Trump said that, if elected, he would eliminate a minimum of ten old regulations for one new regulation… Trump went on to thank Tesla CEO Elon Musk for his endorsement adding, “I will create a government efficiency commission tasked with conducting a complete financial and performance audit of the entire federal government, making recommendations for drastic reforms.”… “Elon, because he is not very busy, has agreed to head that task force. If he has the time he’s a good one to do it and he has agreed to do it.”

To which Elon responded:

I look forward to serving America if the opportunity arises.

No pay, no title, no recognition is needed. https://t.co/5PSNtjBQn7

— Elon Musk (@elonmusk) September 5, 2024

(It’s worth noting that at its inception, some considered the DOGE proposal a jape, since it boosted the DOGE coin, Elon’s favorite cryptocurrency.)

And here is the official announcement, on November 12:

President-elect Donald Trump named tech billionaire Elon Musk and conservative activist Vivek Ramaswamy[3] on Tuesday to head up a new Department of Government Efficiency, fulfilling a campaign pledge to give Musk sweeping oversight of government spending.

Trump said Tuesday that the new department would exist ‘outside of Government,’ giving advice to those in the White House about overhauling federal agencies. The arrangement would also be likely to allow Musk and Ramaswamy to continue working in the private sector and serve without Senate approval.

(A “department” that exists “outside of Government” is a lot like a fish that swims “outside of water.”)

Finally, on November 20, Elon and Ramaswamy jointly penned an Opinion column in the Wall Street Journal, “Elon Musk and Vivek Ramaswamy: The DOGE Plan to Reform Government, which is well worth a read, but their plans are outside the scope of this post.

Rather, I will first show DOGE’s extremely ill-defined nature, as shown by media coverage; then I will look at actions undertaken by DOGE; I will then ask Grok — who better placed to “know”? — under what authority such actions can be taken; and then conclude.

DOGE’s Ill-Defined Nature, As Shown by Press Coverage

In this section, I have curated — artisanally, I hasten to add — links to articles in which the press struggles to name what sort of enity DOGE is, from November 12 up to the present.

11/12/2024, WaPo: “a new commission”; 11/12/2024, WaPo: ” a new government spending commission; 11/12/2024, The Hill, “an advisory group”; 11/13/2024, Vox: “presidential advisory commission or task force”; 11/13/2024, MSNBC, “quasi-governmental group”; 11/13/2024, Fortune: “a newly created entity ….not a real department”; 11/13/2024, CBT News: “the department will operate outside of traditional government structures”; 11/14/2024, Independent, “the new office”; 11/14/2024, The Register: “a commission in everything but name”; 11/14/2024, CBS: “not an official government department”; 11/21/2024, Associated Press: “nascent organization”; 11/22/2025, Politico: “an advisory commission outside government”; 11/24/2024, WaPo: “an advisory panel”; 12/5/2025, Roll Call, “unofficial advisory panel”; 12/5/2024, Daily Mail: “agency”; 12/6/2024, Fortune: “advisory board”; 12/6/2024, Gibson Dunn: “an entity”; 12/6/2024, CNN: “advisory board”; 1/6/2025, Forbes: “an advisory commission”; 1/7/2025, Scientific American: “more an advisory group, really”; 1/7/2025, The Hill: “mythological… pure legal fiction”; 1/8/2025, CBS: “group… not an official federal department”; 1/8/2025, FOX: “a blue-ribbon committee”; 1/9/2025, NBC: “budget-cutting effort”; 1/9/2025, Common Dreams: “so-called Department”; 1/9/2025, CNBC: “a new advisory body”; 1/10/2025, Daily Mail: “a private entity”; 1/10/2025, Reuters: “the department”; 1/10/2024, @doge_eth_gov: ” a community run project and is no way associated with any government agency”; and 1/11/2025, Decrypt: “a new U.S. government initiative.”

And the following take DOGE’s nature as entirely unproblematic, and simply use the acronym: 12/24/2024, Daily Mail; 1/3/2024, Responsible Statecraft; 1/7/2025, Cato Institute; 1/10/2025, The New Republic.

However, I would submit that a term with as much slop as shown here cannot be treated as unproblematic: A “group,” for example, commonly refers to an NGO, whichi is not the same as a commission, and a commission is not the same as the much more informal panel.

So, as I said in the introduction: Nobody knows what DOGE is. In consequence, nobody knows what authorities DOGE has, or why.

Current Actions Undertaken by DOGE

Despite its ill-defined nature, the Senate has already set up a DOGE caucus under Jodi Ernst, and the House has set up subcommittee headed by Marjorie Taylor Green. More interestingly, or problematically, DOGE is hiring:

On its X account Monday, DOGE announced it is currently recruiting a “very small number” of full-time salaried software and info security engineers. The account also posted on Dec. 27 that it plans to hire for full-time human resources, IT and finance positions.

“If interested, please DM us a few bullet points demonstrating exceptional ability, and your cell phone number,” the post reads.

DOGE also has office space:

The newly minted Department of Government Efficiency (DOGE) already has 50 employees working in Washington, D.C., sources confirmed to the Washington Post.

Working out of SpaceX’s offices, the new employees are already hard at work examining different areas to lessen federal spending.

DOGE is also sending out peronnel to interview Federal officials:

U.S. President-elect Donald Trump’s aides with the Department of Government Efficiency (DOGE) have spoken with staffers at more than a dozen federal agencies to begin preliminary interviews, The Washington Post reported on Friday.

The agencies include the Treasury Department, the Internal Revenue Service, Homeland Security, Veterans Affairs, and Health and Human Services, the newspaper said, citing four people familiar with the matter.

… Musk and Ramaswamy have stepped up hiring for DOGE, with more than 50 staffers already started working out of the offices of SpaceX, which Musk owns, The Washington Post reported. DOGE aims to have close to 100 staffers in place by Trump’s inauguration on Jan. 20, according to the report.

Well and good. But under what authority does an “entity” like DOGE cut a payroll check, or sign an agreement for the use of office space?[4] To find out, I asked Elon’s slave pet AI, Grok[5].

What Elon Musk’s Grok Says About Elon Musk’s DOGE

Because Grok is so very prolix, I have edited down the exchanges. The full transcript is in Appendix C.

Is DOGE (the Department of Governmental Efficiency) a 501(c)(3) non-profit organization?

According to posts on X, it appears that DOGE, the Department of Governmental Efficiency, is not currently structured as a 501(c)(3) nonprofit organization. Recent discussions indicate that there was consideration by top officials to incorporate DOGE as an external entity or nonprofit, but it seems unlikely at this point. Therefore, based on the available information, DOGE does not hold the status of a 501(c)(3) non-profit organization.

How is DOGE structured?

The structure of the Department of Government Efficiency (DOGE) appears to be quite fluid and not fully formalized as of January 2025.

Does DOGE have a payroll?

DOGE did not have a payroll in its early stages, as it sought volunteers willing to work without compensation.

As of early January 2025, DOGE is beginning to establish a payroll for a “very small number” of full-time salaried positions, but specifics on how extensive this payroll will be or the compensation details are not clear from the available sources.

Who signs DOGE’s payroll checks?

Based on the information available, the specifics regarding who signs the payroll checks for the Department of Government Efficiency (DOGE) are not explicitly detailed.

Who authorized DOGE to use SpaceX office space? If there is a rental agreement, who signed it on DOGE’s behalf?

The authorization for DOGE to use SpaceX office space can be inferred from the context….

Is DOGE subject to the Federal Advisory Committee Act (FACA)

Based on the available information, the Department of Government Efficiency (DOGE), as structured, is indeed subject to the Federal Advisory Committee Act (FACA).

* * *

Grok’s output agrees with my own reading (listed in the previous section). So what we have here is an entity — whose agents are swanning about Washington, DC, interviewing civil servants — that is not a non-profit, at best has a “fluid” structure, emits paychecks signed by a person or persons unknown, and which occupies office space whose owner can be at best “inferred.” Doesn’t that seem a little odd?

Conclusion

As we might expect, Elon pledged “maximum transparency” in his new DOGE role, so it comes as no surprise that there’s no transparency at all, as shown by Grok’s answers to my questions. So no wonder CREW is suing… well, they can’t sue DOGE, because nobody knows what DOGE is, but they have sued DOGE’s potential interlocutors:

In December 2024, CREW requested records from 62 government agencies, agency components, and agency inspectors general pertaining to any communications that Musk, Ramaswamy, or other individuals reportedly involved in DOGE, Antonio Gracias, William (Bill) McGinley and Steve Davis, had with agency employees, as well as any communications between the agencies and any individuals acting on on their behalves. The requests also seek records pertaining to anyone who has an association with DOGE or the so-called “Delivering Outstanding Government Efficiency” Caucus, a group established within Congress which plans to collaborate with DOGE. The agencies CREW requested records from include the Department of Homeland Security, Department of Defense, Department of Health and Human Services, Immigration and Customs Enforcement, FEMA, the EPA, the FDA, the IRS and others.

Only Congress has the authority to create a new federal agency, and it is unclear what ethics and transparency standards, if any, Musk, Ramaswamy and others affiliated with DOGE are being held to.

Note that if indeed DOGE is subject to FACA, as Grok claims it is (and mega-law firm Gibson-Dunn agrees) then there are standards to which DOGE must adhere, and is not. We looked at FACA extensively in our investigations of CDC’s HICPAC. In particular:

The Federal Advisory Committee Act requires advisory committees to make available for public inspection written advisory committee documents, including pre-decisional materials such as drafts, working papers and studies.

So I and many others would very much like to see the “pre-decisional materials” that DOGE created before its agents fanned out across the Federal government.

Here, however, is what I found most worrisome. Under what authority is DOGE renting office space, signing payroll checks, and interviewing civil servants? Certainly no institutional authority, as we have seen. The only kind of authority under which DOGE is operating, then, is “charismatic authority,” defined as follows[6]:

Charismatic authority is one of the classifications of authority that make up sociologist Max Weber’s tripartite classification of authority, alongside traditional authority and rational-legal authority.

Charismatic authority was defined by Weber as: “resting on devotion to the exceptional sanctity, heroism or exemplary character of an individual person, and of the normative patterns or order revealed or ordained by him.”

The personal qualities of the individual are central to the concept of charismatic authority and it is the individual’s real or perceived elevation above ‘normal’ people that fuels other peoples’ acceptance of their authority. Some commentators suggest that narcissism is a core trait in charismatic leaders.

Charismatic authority is an interesting case because its success is not reliant on external formal structures or norms, as is the case with the other two forms of authority. Because of this, power structures that rely on charismatic leaders to succeed may dissolve should the leader die or leave

In other words, DOGE is able to do what it does based on the charismatic authority of one man: Elon.

History should teach us to be very leery of extra-Constitutional entities, parallel to existing institutions, and driven by the charismatic authority of a single individual. That’s dangerously close to fuhrerprinzip, and even if Trump straightens out Elon’s DOGE mess with one of the the 100+ executive orders he’s going to roll out on his first day in office, DOGE as it is today has already set a terrible, terrible precedent.

NOTES

[1] Not the DOGE Inc. to be found in Dun and Bradsteet, doing business as Spring Garden Flower Shop in San Antonio, TX.

[2] I’m going to call Elon Musk “Elon,” even though my usual practice would be “Musk,” because Elon’s all over my timeline like a cheap suit.

[3] Ramaswamy criticized the deplorable aspects of American culture on December 28:

The reason top tech companies often hire foreign-born & first-generation engineers over “native” Americans isn’t because of an innate American IQ deficit (a lazy & wrong explanation). A key part of it comes down to the c-word: culture. Tough questions demand tough answers & if…

— Vivek Ramaswamy (@VivekGRamaswamy) December 26, 2024

Since then, he’s been curiously silent, presumably because Susie Wiles gagged him.

[4] And who gets sued if some hapless pedestrian gets run over by a DOGE staffer?

[5] I fully expect much of the text emitted by Grok to be proven false, but I want to get it on the record. I also assume that anything in Grok pertaining to Elon’s interest is likely to be gamed.

[6] Readers, I apologize for not finding the original Weber, but I’m tickled to find this material on a human resources site.

APPENDIX A The DOGE Memecoin

Grok is big brain 🧠 pic.twitter.com/EcA13KTtLq

— Dime (@dimetoshi) January 11, 2025

APPENDIX B “DOGE” in Context

The memecoin, hence presumably the entity, is pronounced “/doʊdʒ/,” like the Venetian head of state, and not “doggy” (which is odd, since the avatar of the coin was a Shiba Inu dog). With that license, readers may choose to see the following artwork as a progression:

Corno ducale, c. 1675-1699, as worn by the Doge of Venice. Hand-made by the nuns of the Convent of S. Zaccaria.

A new one was presented to the Doge every Easter Monday, after a procession from San Marco to the convent.

(V&A, London) pic.twitter.com/asgIFrxNgs

— John McCafferty (@jdmccafferty) December 9, 2024

The Doge’s Palace (Le Palais ducal), 1908//More Monet 👉 https://t.co/IJa53htaI3 pic.twitter.com/hQHX8XQUK5

— Claude Monet (@artistmonet) March 11, 2024

2/2 The other great Doge portrait: Leonardo Loredan by Giovanni Bellini, ca. 1501. Just so you know. pic.twitter.com/D89Q5qYQSx

— Dr. Peter Paul Rubens (@PP_Rubens) August 27, 2024

The Execution of the Doge Marino Faliero https://t.co/w6VkZFGLCy pic.twitter.com/WJtxcz5mvw

— Eugene Delacroix (@art_delacroix) February 13, 2024

APPENDIX C Grok Transcript on DOGE

Is DOGE (the Department of Governmental Efficiency) a 501(c)(3) non-profit organization?

1 post

25 web pages

According to posts on X, it appears that DOGE, the Department of Governmental Efficiency, is not currently structured as a 501(c)(3) nonprofit organization. Recent discussions indicate that there was consideration by top officials to incorporate DOGE as an external entity or nonprofit, but it seems unlikely at this point. Therefore, based on the available information, DOGE does not hold the status of a 501(c)(3) non-profit organization.

How is DOGE structured?

15 posts

25 web pages

The structure of the Department of Government Efficiency (DOGE) appears to be quite fluid and not fully formalized as of January 2025. Here’s what is known based on available information:

Non-Governmental Structure: DOGE is explicitly described as being outside the official government structure. It’s not an agency, commission, or a government entity with legal authority. Instead, it operates as an advisory or lobbying group aimed at influencing government spending and efficiency.

Leadership: DOGE is led by Elon Musk and Vivek Ramaswamy, with involvement from other billionaires and tech executives. These individuals are intended to take on unofficial roles within various federal agencies to push for cost-cutting measures. The recruitment for DOGE positions includes a call for volunteers who are not federal employees or officials.

Operational Secrecy: There’s an emphasis on secrecy in DOGE’s operations, with much of the communication being conducted through encrypted messaging apps like Signal to prevent leaks.

Advisory Role: DOGE’s primary function is to provide recommendations on cutting wasteful spending rather than having direct authority over government expenditures. This advisory role is aimed at influencing policy without the formal powers of government agencies.

Potential Legal and Structural Ambiguities: There are concerns about how DOGE navigates conflicts of interest and transparency laws like the Federal Advisory Committee Act, suggesting that it might try to operate in a manner that avoids these regulations, possibly by not incorporating as a formal entity.

Public Perception and Critique: Some posts on X suggest skepticism or criticism regarding DOGE’s structure and motives, with labels like “billionaires’ lobbying grift” and concerns about privatization motives.

In summary, DOGE’s structure is informal, advisory, and outside traditional government frameworks, with a focus on influencing government efficiency through recommendations rather than having legal authority to enact changes. Its exact operational details remain somewhat opaque, reflecting its non-official status within the government.

Does DOGE have a payroll?

15 posts

25 web pages

Based on the information available, the structure of the Department of Government Efficiency (DOGE) regarding payroll is ambiguous and has seen some evolution:

Initial Statements: Initially, it was stated by Elon Musk on X that employees at DOGE would not be compensated, with the work described as “tedious,” making “lots of enemies,” and having “zero” compensation. This was intended to be a volunteer position for those interested in cost-cutting within the government.

Recent Developments: By January 2025, there are indications that DOGE has started recruiting for full-time, salaried positions. This includes roles in software engineering, information security engineering, HR, IT, and finance. However, details about the number of these positions or the salary structure remain sparse.

Public Perception: Posts on X reflect a mix of skepticism, support, and confusion about DOGE’s payroll. Some users express doubt about its efficiency due to the initial zero-compensation model, while others see the move to salaried positions as a sign of DOGE becoming more structured.

Given this information:

DOGE did not have a payroll in its early stages, as it sought volunteers willing to work without compensation.

As of early January 2025, DOGE is beginning to establish a payroll for a “very small number” of full-time salaried positions, but specifics on how extensive this payroll will be or the compensation details are not clear from the available sources.

Therefore, while DOGE initially operated without a payroll, it appears they are now moving towards having one for certain roles, though the scope and details are still not fully defined.

Who signs DOGE’s payroll checks?

1 post

25 web pages

Share your location for improved accuracy.

Based on the information available, the specifics regarding who signs the payroll checks for the Department of Government Efficiency (DOGE) are not explicitly detailed. However, given the context:

DOGE’s Initial Structure: Initially, DOGE was described as a volunteer-based organization with no payroll, as indicated by statements from Elon Musk where he mentioned that the work would be uncompensated.

Transition to Paid Positions: By January 2025, there are indications that DOGE has moved towards establishing a payroll for a “very small number” of salaried positions. This transition suggests that some form of administrative or financial management has been set up, possibly under the guidance or direct involvement of Musk and Ramaswamy, who are leading the organization.

Potential Signatories: Given that DOGE is not a traditional government entity but rather an advisory group with influential figures like Musk and Ramaswamy at the helm, it’s plausible that one or both of these individuals, or someone directly appointed by them, would have the authority to sign payroll checks. However, this is speculative based on the lack of direct information.

Public Speculation: Posts on X express a mix of curiosity and skepticism about the operational details of DOGE, including its financial management, but there’s no specific mention of who signs the payroll checks.

From this, we can infer:

No definitive answer exists in the public domain about who exactly signs DOGE’s payroll checks.

The most likely scenario is that it would be someone with significant authority within DOGE, potentially Musk or Ramaswamy themselves or an appointed financial officer, given their leadership roles and the nature of DOGE as an external advisory body.

Therefore, without explicit confirmation, the identity of who signs DOGE’s payroll checks remains undetermined from the available information.

Who authorized DOGE to use SpaceX office space? If there is a rental agreement, who signed it on DOGE’s behalf?

4 posts

25 web pages

The authorization for DOGE to use SpaceX office space can be inferred from the context:

Implicit Authorization: Elon Musk, being the CEO of SpaceX and a co-leader of DOGE alongside Vivek Ramaswamy, would likely have the authority to decide on the use of SpaceX’s office space for DOGE. Given his dual roles, he could authorize this use without formal agreements.

Rental Agreement: There’s no explicit mention of a formal rental agreement in the available sources. However, if one exists:

Signatory on Behalf of DOGE: Since DOGE is led by Musk and Ramaswamy, either of them would be the most probable signatories on any potential rental agreement. Given Musk’s ownership of SpaceX and his role in DOGE, he would be the logical choice to sign on behalf of DOGE if a formal agreement were necessary.

In conclusion:

Authorization: Elon Musk, due to his roles in both organizations.

Signatory on DOGE’s Behalf: If a formal agreement exists, it would most likely be signed by Elon Musk, but there’s no direct evidence of such an agreement in the provided information.

Is DOGE subject to the Federal Advisory Committee Act (FACA)

25 web pages

Based on the available information, the Department of Government Efficiency (DOGE), as structured, is indeed subject to the Federal Advisory Committee Act (FACA). Here’s how this conclusion is reached:

Definition and Criteria: FACA applies to any “committee, board, commission, council, conference, panel, task force, or other similar group” that includes at least one non-governmental member, established or utilized to provide advice or recommendations to the President or one or more agencies or officers of the Federal Government. DOGE fits this description as it is an advisory body led by non-federal members (Elon Musk and Vivek Ramaswamy) aiming to provide recommendations on government efficiency, spending, and operations.

Legal Precedents and Expert Opinions: Various sources and experts, including Jason Arnold, an associate professor of political science, and legal analyses from organizations like Public Citizen, have indicated that DOGE’s operations align with the requirements of FACA. They argue that DOGE, though not a formal government department, functions as an advisory committee which, under FACA, must adhere to transparency, public involvement, and reporting requirements.

Public Statements and Actions: Elon Musk has stated on X that DOGE’s actions would be “maximum transparent,” which aligns with FACA’s requirements for transparency. However, there are also indications that DOGE might attempt to operate in ways that could be seen as avoiding some FACA obligations, like by functioning informally or emphasizing individual rather than collective advice. Despite these tactics, if DOGE meets the criteria for what constitutes a Federal Advisory Committee, it would still be subject to FACA.

Legal Challenges and Compliance: Historical examples and legal opinions suggest that even if an entity like DOGE tries to bypass FACA by not formally declaring itself as an advisory committee, courts can still rule that it must comply with FACA if its operations resemble those of a committee established to advise the government.

In conclusion, given the nature of DOGE’s operations, its purpose, and its leadership by non-federal members to provide advice to the federal government, it is subject to the Federal Advisory Committee Act. The exact compliance might be subject to legal scrutiny, but the core activities of DOGE as described fall within FACA’s jurisdiction.