Trump Just Created a Big Problem for His Lawyers by Telling Congress DOGE Is ‘Headed by Elon Musk’
President Donald Trump’s speech to a joint session of Congress Tuesday evening included a shout out for Elon Musk, a few quick seconds that may spawn major headaches for government attorneys who are trying to defend DOGE’s activities in court.
Trump and Musk’s efforts with DOGE to reshape the federal government have been highly controversial, from an email demanding all federal workers justify their continued employment to the massive layoffs being pushed to Musk’s conflicts of interest.
Multiple lawsuits have already been filed challenging the creation of DOGE, their activities, their access to sensitive government data and files, and Musk’s role. One issue that has arisen in this litigation is the precise nature of Musk’s job title and legal status vis-à-vis DOGE.
An affidavit submitted by Trump administration attorneys by Joshua Fisher, the director of the White House’s Office of Administration, stated that Musk is “not an employee of the U.S. DOGE Service or the U.S. DOGE Service temporary organization.”
Instead, Fisher’s affidavit insisted, Musk was “an employee of the White House office,” with the title of “Senior Advisor to the President,” a position he holds “as a non-career Special Government Employee,” and one in which Musk “has no actual or formal authority to make government decisions.”
Eventually, the White House named Amy Gleason, a senior adviser at U.S. Digital Services, as the DOGE administrator.
On February 28, Lawfare senior editor Anna Bower reported on a tense exchange between federal Judge Theodore Chuang and a Trump administration attorney during a preliminary injunction hearing where the litigants had argued that Musk and DOGE were violating the Constitution’s Appointments Clause.
The transcript, as tweeted by Bower, shows how the judge “grew frustrated with government counsel’s inability to answer questions about DOGE’s chain of command and Musk’s role”:
JUDGE: Who was the head of DOGE before Amy Gleason?
GOVERNMENT COUNSEL: I can’t answer that, I don’t know.
JUDGE: I mean, that seems like a knowable fact, doesn’t it?
GOVERNMENT COUNSEL: I’m sure it is knowable; I just don’t know it. I’m very conscious of being accurate with the court…I just can’t make a representation.
JUDGE: Have you asked anyone?
GOVERNMENT COUNSEL: I have not asked…actually, strike that. I have asked previously, and I was not able to get answer.
JUDGE: Are you saying there was an administrator before Ms. Gleason? Or that there was nobody until this new person [Gleason] was put in?
GOVERNMENT COUNSEL: I’m not saying either, because I don’t know.
…
JUDGE: Is there a piece of paper, like, an appointment paper? Is there one that says Elon Musk, Senior Adviser to the President?
GOVERNMENT COUNSEL: Sorry, now you’re talking about Elon Musk, not the DOGE administrator?
JUDGE: The plaintiffs are saying Musk was the head of DOGE. You’re saying he wasn’t, but we can’t tell you who was, which admittedly is highly suspicious… I’m not saying that you’re not being candid, but the whole operation raises questions. There’s an affidavit saying he’s a senior advisor of the president. But there’s a “strange disconnect” where he has referred to himself in public as affiliated with DOGE and not as a senior adviser to the president-until recently, after these lawsuits were filed. Having some backup documentation for that would seem to be useful.
During his speech Tuesday evening (not called a State of the Union address as the first speech of a president’s term and too early to have that moniker), Trump brought up DOGE and Musk:
To further combat inflation, we will not only be reducing the cost of energy, but will be ending the flagrant waste of taxpayer dollars. And to that end, I have created the brand new Department of Government Efficiency. DOGE — perhaps you’ve heard of it, perhaps — which is headed by Elon Musk, who is in the gallery tonight.
Thank you, Elon. He’s working very hard. He didn’t need this. He didn’t need this. Thank you very much. We appreciate it. Everybody here, even this side, appreciates it, I believe. They just don’t want to admit that.
That short moment — “DOGE…which is headed by Elon Musk” — lasted less than 20 seconds with cheers and applause from the GOP side of the gallery and directly contradicted what the Trump administration’s lawyers have been writing in their motions and arguing in court.
Politico senior legal affairs reporter Kyle Cheney highlighted Trump’s comment saying DOGE is “headed” by Musk as one that “undermines the administration’s position in a few of its court cases against DOGE’s effort to access agency systems.”
In a subsequent tweet, Cheney noted that DOJ attorneys were arguing in court Musk wasn’t the head of DOGE just “4 days ago.”
Ryan Goodman, the co-editor-in-chief at Just Security, had a similar assessment, posting on Bluesky that Trump “just directly contradicted the Government’s court filing in one of the most important cases before the courts” with that comment.
“A boost for the plaintiffs in the Appointments Clause cases,” Goodman added.
President Trump just directly contradicted the Government’s court filing in one of the most important cases before the courts.
President Trump: “DOGE … which is headed by Elon Musk who is in the gallery tonight.”
A boost for the plaintiffs in the Appointments Clause cases.
— Ryan Goodman (@rgoodlaw.bsky.social) March 4, 2025 at 9:50 PM
Bower reacted to Trump’s speech in a tweet that asked repeatedly “who is actually in charge of DOGE.”
UPDATE 11:30 pm ET: The plaintiffs in one of the lawsuits against DOGE have already alerted the court about Trump’s speech tonight, reported Cheney.
“THAT DIDN’T TAKE LONG,” he tweeted along with the Notice of New Evidence filed by the plaintiffs.
Watch the clip above via CNN.
