Suing DOGE, Musk, Trump, and an Imperial Presidency

Mark Lemley: One way this plays out is confrontation between the Court, which has made very clear that many of the things that Musk is doing are flatly illegal, and when it gets those challenges, what does it do, right? Does it simply strike them down? And then what happens if, as I think is a very real risk that probably for the first time in my lifetime, that the President just ignores the Court and says, no, we’re just, we’re going to do what we want anyway.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. The Trump administration has been firing on all cylinders and then some.

And our guest today is Mark Lemley, my colleague here at the law school. He’s the William H. Newcomb Professor of Law, and he’s Director of the Stanford Program in Law, Science, and Technology. He also is a principal in Lex Lumina, which is a law firm that does a wide variety of litigation, a lot of it in the sphere of intellectual property, where Mark is the leading scholar in the country.

And intellectual property is, a lot of it is about information, and today we’re going to be talking with Mark about a different aspect of information. A lawsuit that he and his colleagues have filed that’s one of the many lawsuits involving the Trump administration and its attempts, really, to remake what we understand the government to be. The caption of the lawsuit is a long caption, but it’s really the American Federation of Government Employees and several other unions, along with a group of individual government employees suing the United States Office of Personnel Management (OPM), which has been around for quite a while.

And then something called the U.S. DOGE Service. And Mark, in some ways, you might be the right person to talk about what the DOGE Service is, because, of course, when I see the word DOGE, I think about the Venetian Republic, a republic that lasted for 500 years and then collapsed. And I think this is ironic, naming your service after the leader of a collapsed republic.

But, of course, DOGE means something else to folks like you. So, how did we get the U.S. DOGE Service?

Mark Lemley: Yeah, first thing you know is that nobody really knows the answer to that question, nor do we know exactly what it is. But Elon Musk has been obsessed with various things, one of which is Dogecoin, which is a form of cryptocurrency that’s been around for a little while.

And I think he decided as part of his penchant for puns he thinks are clever, that he should run the Department of Governmental Efficiency, which appears to be neither a department nor about governmental efficiency, but which he could nicely abbreviate to DOGE. I will note that at least one person I met who had read it but was not familiar with either the Venetian Republic Dogecoin asked about Elon Musk running the doggy department, and I do think we might want to refer to it in that phrasing from now on.

Pam Karlan: Yeah, it is like Wall-E, right? It would be dog-E.

Mark Lemley: Exactly.

Pam Karlan: Yeah, it’s a mystery. And of course what they did is they did the equivalent of what in the corporate world is sometimes referred to as a SPAC, which is they took an existing USDS, which was the digital service, and they renamed it the DOGE and the government is now in, not in your lawsuit, but in a different lawsuit, taking the position that Elon Musk doesn’t run DOGE, because if he did run DOGE, that would be a problem for him. On the other hand, they won’t tell us who is running it. But while these people are not running or running the government, what did they do that led to your lawsuit?

Mark Lemley: Yeah. And I think the fact that the sort of like Schrodinger’s cat nature of this entity, which is a government entity when we want it to be and not otherwise, is actually going to feature in this lawsuit. But what happened that precipitated our lawsuit was that a number of people in their late teens and early twenties who purportedly worked for DOGE, who used to work for Elon Musk’s companies, might or might not now work for the government, came into the Office of Personnel Management and demanded route administrative access to all of the computer records there.

That means access to the social security numbers, the age, gender identity, and health and a variety of other information kept in personnel records for all federal government employees and all former federal government employees.

Pam Karlan: And what conceivable reason is there for getting this information?

Mark Lemley: So I think it’s a good question, right? And the government hasn’t articulated one. I think things they seem to have done with this information, one, was use it to send an email to everybody in the government offering them a buyout which is the subject of a separate lawsuit and might or might not be legal.

So, they got access to everybody’s email in one place. But the other thing that we’ve seen fall out from this so far, we’ve seen a number of firings in various departments that are across the board, that are not here as a decision by a local administrator to terminate somebody in the government.

For instance, the government fired everyone whose status in the government was probationary. We don’t know why they did that, but it’s possible that they thought probationary meant, oh, if you’re on probation, maybe you’re a low performer and we should fire you.

Pam Karlan: No, it just means you’re in your first two years of government service, right?

Mark Lemley: It means you’re [unintelligible], so we’re getting rid of that. Maybe they wanted to do that. Here’s an easy way to identify and get rid of all of the Biden administration hires. But it turns out that among other things, probationary employees also include those who’ve been around for a long time, done a great job and have been promoted to a new position within a new or within a new department and are in probationary status on that department. And so, we ended up firing a bunch of people who have very critical jobs within the government. But I think they got that information from OPM, right?

So these people who purportedly work for DOGE came in and got computer access to all of the computer systems and all of the data.

Pam Karlan: And once they have access to this data, since we don’t really know who DOGE is or are, I don’t know whether we use the singular or the plural form, but we don’t really know who they are, and it’s not clear what else they might use this data for, the idea that Elon Musk has access to all of this data and is also running a bunch of companies that depend on knowing a lot about people, it really does move us towards a kind of either 1984 or panopticon kind of society.

Mark Lemley: Yeah, no, I think that’s right. And so, one very significant worry is what does Elon Musk and his employees, presumably his employees, again, the government now takes the position he doesn’t actually have any employees at the government. What do they do with this information deliberately, right? And that could be things like illegally firing people.

One of the things you can learn from this is transgender status, right? So if you want to target people on the basis of protected category, you could do that. And some of the people who are acquiring this information, one of them is 19 years old and goes by the online name, “Big Balls.”

He was fired from a cybersecurity company, apparently for mishandling information. So one set of worries is, what is Elon Musk and what do these people decide to do with the information? But the other set of worries is once you’ve taken information out of a secure environment, it makes it much easier for anybody else, like the Chinese government or the Russian government, to hack it and get access to this information and the DOGE folks appear to be engaged in essentially no common cyber security practice. The DOGE website itself, they used open programs so that anybody could go and modify and write to the DOGE website.

Pam Karlan: You’re kidding.

Mark Lemley: Nope, I wish I was. They emailed a list of CIA employees hired in the last two years over unencrypted email to the White House, where the identity of these people is itself something that could get them killed.

I think Bruce Schneier, who’s a cybersecurity expert, says this is the worst hack of the United States government in history, right? It’s worse than anything the Chinese have done because we’ve now made this information insecure and it’s going to be hard to get it back.

Pam Karlan: Yeah. And so, your lawsuit uses a federal statute called the Privacy Act. Can you tell us a little bit about what the theory of the lawsuit is and what you’re looking for?

Mark Lemley: Yeah, so the Privacy Act was passed in 1974, and it governs the behavior of agencies who have information about individuals. And one of the things it says, the kind of core provision is, just because the government has information about you in one agency doesn’t mean you can share it with anybody else in the government.

So, the Privacy Act says the agency can use this information for its own purposes. It can’t share it outside the agency unless it meets one of a specified set of exceptions. There’s a national security exception. There’s anonymized data for sort of census and polling information. There are various exceptions, none of which seem to apply here.

And so, our argument in the lawsuit is straightforward, which is OPM has a right to access this data. DOGE, whatever it is, is not part of OPM, and it doesn’t have a right to access this data under the Privacy Act unless it meets one of those exceptions. And there’s no exception that I think can plausibly apply here.

Pam Karlan: Yeah, there would be very few exceptions that would allow you to get everybody’s data, right? You could imagine a fair number of the exceptions under the Privacy Act where, the State Department wants particular data about government employees who are in particular countries or the like, but this does seem to be, all the data of any kind about anyone who’s ever worked for the government, which I assume includes us because we were both law clerks.

Mark Lemley: So that may be, it seems like the judiciary is in a different…

Pam Karlan: Although, there was one of these executive orders right at the beginning. I think it was the one that sent the fork in the path, which sent a bunch of stuff to people in the judicial branch and then the administrative office of U.S. courts sent around a note saying, pay no attention to these people.

Mark Lemley: Because the courts are in fact, I think, in a different, but you’re right, it does suggest they may have that information and access to it. Yeah, and the kinds of exceptions that we’re talking about, there’s a national security exception, there’s an exception for the Bureau of the Census, for purposes of carrying out the census, there’s statistical reporting that’s not identifiable information.

His national archives can have certain information of historical significance. None of that is here, and none of it, as you suggested, could plausibly require access to every current and former government employee, which is something like 20 million people.

Pam Karlan: Yeah, and as you say in the complaint, it’s things like, who’s your health insurance provider? What kinds of claims have you made? Who else is a family member and the like? All of that stuff’s in there.

Mark Lemley: So, two things that are notable about the kind of, Privacy Act one is as mentioned it is not a defense that you wanted to use this for a lawful purpose. If you disclose the information outside the agency and not for one of these specified purposes, that’s a violation of the Privacy Act.

So in some sense, for our lawsuit, it doesn’t matter what, if anything, they do with the information. We think, we’re concerned about what they’re going to do with that information and what they’ve already done with it, but we don’t have to prove that they have abused this information that it’s caused a hack or anything else in order for there to be a Privacy Act violation.

Pam Karlan: Yeah. And one of the one of the things that’s different about this lawsuit and the Privacy Act and a lot of the other lawsuits that are going on right now, which are lawsuits saying, rehire this person that you fired or start letting the money flow again in disbursements and the like, is the Privacy Act actually has damages provision in it.

Mark Lemley: Yes, and that’s the second sort of interesting thing, right? So, it has a damages provision and if you willfully violate it, and I think it’s pretty hard to argue they didn’t deliberately get access to this information, the statute says there is a minimum statutory damages of $1,000 per person.

Now, the Supreme Court in an opinion by Justice Alito some years back in FAA v. Cooper, decided to abandon any plain meaning of the statute and graft on a new requirement that in order to be eligible for the thousand dollar minimum statutory damage, you must have suffered some sort of financial injury.

So our lawsuit right now is a lawsuit on behalf of the unions and some individuals seeking injunctive relief to stop the disclosure of the information and to get it back to require the people who wrongfully have access to information to delete it. But coming is a lawsuit, a class lawsuit on behalf of current and former federal government employees for injuries they may have suffered. And so, if you are a current or federal former federal government employee, and you had to get credit monitoring or some sort of watch notice for your social security, if you were fired as a result of access to this information all of those people have a damages action.

And even if you paid only a small amount of money, I think you have a damages action with a minimum of $1,000.

Pam Karlan: Yeah so let me just ask you about one of the things you said there, because it’s fascinating, which is if you were fired as a result of this stuff being turned over, would you have a damages claim with the $1,000, even if they were otherwise entitled to fire you because the disclosure of this information played a role?

Mark Lemley: So, I think that’s an interesting question, right? And I don’t know that we know the answer to that question yet. So, what the Court said in FAA v. Cooper is you must have suffered some monetary injury because of the Privacy Act violation. So, I think you could argue in a causation sense if you were going to be fired on the same day anyway, you haven’t suffered a monetary…

Pam Karlan: But presumably they couldn’t have fired this kind of wholesale way on, you know February 5th, it might have taken them ‘til May or June or July to figure this out otherwise.

Mark Lemley: Exactly. And so, right. And so, I think I think you’ve been injured.

Pam Karlan: If you were fired earlier.

Mark Lemley: Right out of the bat, even if the government could have fired, you ultimately had it followed proper processes, right? At a minimum, you’ve suffered the injury of losing sort of three months’ salary or whatever you would have suffered.

Now, those may be more than a thousand dollars, right?

Pam Karlan: Yeah it’s certainly going to be more than a thousand dollars. And, I assume there are going to be similar lawsuits to this filed with regard to DOGE getting access to everybody’s tax records, which apparently led to the resignation of the top career treasury employee who was in charge of the IRS’s databases because he was unwilling to hand this over to “Big Balls” and whoever else is working with him.

Mark Lemley: Yeah. And the same thing happened over the weekend with the head of Social Security Administration who resigned rather than disclose this. So that, and one thing that I think it is important to recognize is we think this lawsuit is important, right? Especially, if you are a current or former federal government employee, but it is one piece of a sort of mosaic that is challenging the sort of rampant pillaging of private government databases, not only databases about federal employees, but databases about every citizen in the United States. And yes, I think we will see litigation about the social security piece, about the IRS piece, for sure. And I think those, I think they’ve got the same problem there, right?

“Big Balls” doesn’t work for the IRS or for the Social Security Administration. And, even if they delegated somebody as an employee to one of those agencies to get access to the information, anything they do to share that information beyond the agency is going to violate the Privacy Act.

Pam Karlan: One of the things I wanted to do is bring in a piece of your work that wasn’t in your normal field of expertise, which is intellectual property, where you are the most cited legal scholar in the country and also the most influential, and those two things do not always go together, but they do with you, and that’s a piece you wrote in the Harvard Law Forum that was called “The Imperial [Supreme] Court,” and you wrote this in 2022, and it turns out to be even more true in some ways today. If you could say a little bit about that piece and then what struck me when I was preparing to talk to you today is what we’re now seeing is moves on behalf of the executive branch that look very parallel to the moves you talked about the Court making as the imperial court so, take it away.

Mark Lemley: I wrote this paper “The Imperial Supreme Court” in 2022 because what I’d seen were a variety of moves by the Court that didn’t seem to have any overarching ideological or methodological reason to them, except that the Court got to do what the Court wanted.

And so, rather than, we’re taking power away from the federal government and giving it to the states or we’re taking power away from the government and giving it to the people or we’re taking power away from the executive branch and giving it to Congress, the Court would move in any direction it wanted to, as long as it got the result that it wanted. And it ended up, I think, irrigating a lot of power to itself, and that struck me as a problem.

Pam Karlan: Yeah, and one of the, one of the things that has happened since then that was, that you perfectly predicted, is the demise of the so-called Chevron doctrine, and the Court announcing that it, and it alone, was capable of interpreting federal statutes in a kind of definitive way.

Mark Lemley: Yeah, and I think that’s going to be a very interesting thing to play out in the Trump administration because while I think we have seen the rise of the imperial Supreme Court, we are now seeing the rise of the imperial presidency, and just in the last 72 hours, the Elon Musk and his co-president Donald Trump have issued orders saying essentially only we can determine what the law is.

Pam Karlan: Yeah, I noticed that.

Mark Lemley: And issuing orders saying there will be no more independent federal agencies. Both of those things are clear efforts to try to consolidate power and that may bump up against the Court’s effort to consolidate power when it comes to lawmaking. It’s a little ironic to me because I quite lamented the fact that the Supreme Court is breaking the system of checks and balances, but the imperial nature of the Supreme Court may be the sort of last hope we have left to defend ourselves against the imperial presidency.

We’ll see what happens. I think recent history is not encouraging, they seem perfectly happy to give Donald Trump immunity from prosecution, for instance, notwithstanding the sort of history or the way the laws are written. And it may be that blowing up the Chevron doctrine and saying we are the final arbiter is going to mean in practice only that we blow up liberal interpretations of agency rules and not conservative interpretations.

But I think we’re going to see a real test of whether the Supreme Court will try to hold on to the power it has irrigated to itself, right? When it is asked to rule on a number of illegal actions by the Trump administration that’s trying to consolidate its own power.

Pam Karlan: Yeah and one place where, we’ve been talking about the President and the Supreme Court, and we haven’t mentioned once in this broadcast really, Congress, except for saying there’s a privacy act, but one of the things, obviously, the President’s doing on top of everything else is taking funds that Congress has appropriated and saying, not going to spend these. I’m not sending this grant out and the like. And many years ago, the Supreme Court upheld a restriction on the President’s impoundment power and the training against the United States case, but I think there’s gonna, the new director of the Office of Management and Budget announced he doesn’t think the Impoundment Control Act is constitutional, and he thinks Trump doesn’t think so either, which then raises this question, when these cases get to the Supreme Court, we’re not hearing anything out of Congress, which seems utterly supine at this moment, but the people who were supposed to be getting these grants, we’re going to be hearing a lot from them.

Mark Lemley: Yeah, no, I think that’s right. And so, I think one way this plays out is sort of confrontation between the Court which has made very clear that many of the things that Musk is doing are flatly illegal when it gets those challenges what does it do, right? Does it simply strike them down?

And then what happens if, as I think is a very real risk probably for the first time in my lifetime, that the President just ignores the Court, and says no, we’re just, we’re going to do what we want anyway. And I think we will see that with the impoundment of funds. I also think we’re going to see it with the independent agencies, right?

So, these were agencies that were imbued by law with independence, right? So you were, you are telling Congress we by executive order can undo the act of Congress. The Court will have to decide, right? I guess whether it was ever constitutional to pass those agencies. But it’s even for an activist Supreme Court it is a pretty broad lift to say a dozen agencies that have been around for 100 years or so, all turn out to have been unconstitutional all along and we just didn’t notice, notwithstanding the 100 or so cases we have adjudicated involving those agencies. So I think we’re headed for that sort of a confrontation and then I do want to emphasize something you said which is the thing you might expect, right? If Congress was being stripped of all power the power over the budget, the power to actually determine agencies structure and status that somebody in Congress would speak up and say, hey, that’s not okay.

What we have seen is a rather remarkable willingness by Republicans in Congress to do whatever Trump wants even people who in the past we might have said were moderate Republicans. I think one of the things we’ve seen is that the era of the moderate Republican in Congress is just over. They don’t exist.

Pam Karlan: They have concerns.

Mark Lemley: Yes.

Pam Karlan: They just won’t do anything about them.

Mark Lemley: Yeah, Susan Collins might have concerns. And interestingly, and I think this is a pattern we’ve seen for the last eight years, the only people who seem willing to stand up to Donald Trump are the ones on their way out the door.

And so, when Mitch McConnell is leading the sort of sane Republican opposition to Donald Trump, and he’s the only one in that group, you know things have shifted. My hope, honestly, if there is a hope, is that a number of those Republicans start hearing from really pissed off Republican constituents, who lost their jobs in the federal government, who can’t get into a national park, who can’t get their social security check, who can’t get disability or health benefits because the Musk administration has decided to move fast and break things without looking at what it was breaking or what it might cost people.

Pam Karlan: So that reference to the Musk administration leads me to a kind of 30,000 foot point that I wanted to ask you about, which is what we’re seeing is a kind of move into Washington, which has traditionally been slow and the bureaucracy, the disadvantage of the bureaucracy, is it’s slow to change and move, but the advantage of the bureaucracy is it’s sometimes slow to change and move.

We’re seeing a kind of injection of a particular form of Silicon Valleyism into Washington with the, as you say, the kind of Musk administration. And you have had more exposure perhaps than almost anybody to Silicon Valley and the thinking in Silicon Valley. How do you assess this kind of injection of Silicon Valley into Washington?

Mark Lemley: Yeah. So I think there are a couple of things going on here, right? One is, I do think, a very different idea and ethos, right? So the billionaires who run successful Silicon Valley companies really do have a power over their organization that no U.S. President has ever had over the government. And so, I think Elon Musk comes in whatever role or non-role he has, and says, do it, and expects that it will be done and never mind that it might be illegal. Never mind that there might be a process to be followed. Nevemind that we have to do this thing and give notice and wait 30 days.

Pam Karlan: And also, nevemind that you actually don’t understand how this thing works.

Mark Lemley: And that is another and less attractive part of Silicon Valley, right?

I think Silicon Valley has succeeded in various ways by as the phrase is, moving fast and breaking things because it has enabled them to sort of fix inefficiencies that were in fact real problems that you could fix, right? They’ve also screwed things up horribly in various circumstances, right?

And so, the problem with moving into a new area where you are not an expert is, there might be a reason that thing is there and if you just take it down, if you just tear it down. You might find out to your detriment that, oh yeah, we actually needed the people in the FAA who were doing airplane safety.

Pam Karlan: Yeah, or we shouldn’t just run some program that says get rid of the word equity everywhere it appears, and now the mortgage sites of the federal government won’t talk about how to deal with home equity.

Mark Lemley: Exactly. Were the probationary… And this is, I think one of the challenges is the real Elon Musk is in many respects, the sort of worst of Silicon Valley, right? He is the sort of most arrogant combined with the least domain knowledge. And so, the ability to think I can parachute in, look at a social security database and conclude that 80 percent of the people in the social security database are actually dead and getting checks fraudulently because he doesn’t understand the programming language that was used to write it and how it triggers dates and so that it defaults to 150 years old, right?

That’s the bad thing about Silicon Valley. And I guess the last thing I’d say there is in the private sector, if we do things right, and you do something really stupid, somebody else comes in and beats you at your own game, right? You, people don’t buy your product anymore, right?

We can’t do that with the government. And so, if we break things that shouldn’t have been broken, there isn’t some other private actor who’s gonna come in and make it all alright by making a better product.

Pam Karlan: I couldn’t say that better. Thanks to our guest, Mark Lemley. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app.

Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.