Elon Musk's secretive task force faces the same legal firestorm that engulfed Hillary Clinton

Thirty-two years ago, a powerful, polarizing unelected reformer, someone with close ties to the president, took on the health care industry. 

First Lady Hillary Clinton's critics quickly sued her over the secretive way she ran her task force.

Today Elon Musk is the target of similar legal blowback from government transparency advocates wielding the same federal law used against Hillary Clinton.

President Bill Clinton directed his wife's task force to develop a national health care plan, alarming conservatives and the pharmaceutical and health insurance industries. 

They attacked by invoking the open government provisions of the Federal Advisory Committee Act to challenge the task force's closed-door meetings and to force access to the names of its members.

The advisory committee act is a 1972 sunshine law that regulates advice to the president from groups with members who are not government employees. 

Last fall, President Donald Trump ordered Musk, who held no public office, to lead a Department of Government Efficiency to cut bureaucratic bloat and slash the federal workforce. 

Since then, Musk's rampages through federal agencies have alarmed many. In a lawsuit filed one minute after Trump was inaugurated at noon on Jan. 20, open government advocates protested that Musk's group operates under a shroud of secrecy, can dictate federal policy that will affect millions of Americans and is unauthorized by Congress. 

"DOGE is, instead, a shadow operation led by unelected billionaires who stand to reap huge financial rewards from this influence and access," reads the complaint, signed by lawyers from two left-leaning nonprofits: Citizens for Responsibility and Ethics in Washington and Democracy Forward Foundation. 

"DOGE's unchecked secrecy, access, and private influence -- bought by political loyalty -- is anathema to efficient, effective government," the complaint asserts. American Public Health Association et al. v. Office of Management and Budget et al., 1:25-cv-00167 (D. D.C., filed Jan. 20, 2025).

The suit seeks a court order blocking DOGE's operation until it comes into compliance with rules requiring transparency, oversight and opportunity for public participation. Similar suits have been filed by Public Citizen Inc. and others.

It has been assigned to U.S. District Judge Jia M. Cobb of Washington, D.C., a former public defender and a cum laude Harvard Law School graduate placed on the bench by President Joe Biden.

The suit against Hillary Clinton produced mixed results, including a diatribe from U.S. District Judge Royce C. Lamberth, who ruled the task force had to open its meetings and, in a later opinion, called the Clinton administration's conduct in the matter "reprehensible." She fined the government more than $285,000.

An appeals court reversed Lamberth, finding no one had acted in bad faith, but the health care plan died in Congress. Association of American Physicians and Surgeons Inc. et al. v. Hillary Rodham Clinton et al., 93-092 (D.C. Cir., op. filed June 22, 1993).

(Lamberth is now a senior judge who last week temporarily blocked Trump's executive order that transgender inmates who identify as women be housed in male prisons.) 

But the suit worked even so, its promoters contend. "Regardless of what the courts did, Hillary certainly lost the public relations battle," wrote Peter Flaherty, president of the National Legal and Policy Center, a conservative nonprofit that backed the plaintiffs. The suit helped sink her health care plan, Flaherty said.

There are parallels between the long-ago anti-Clinton litigation and the current suit against DOGE, said Nikhel S. Sus, the deputy chief counsel at Citizens for Responsibility and Ethics in Washington.

"The judge in the Hillary suit found that the task force misrepresented facts around whether members were government employees," Sus said. "He thought they lied in an affidavit. They didn't do the paperwork and administer the oath to uphold the Constitution. 

"We think it's highly likely that members of DOGE are likewise not government employees."

(U.S. Treasure Secretary Scott Bessent said Thursday in a TV news interview that two of his department's employees are members of the DOGE team.)

The DOGE suit is different than the Hillary Clinton litigation in a significant way, Sus added. "The level of control and influence that DOGE has over the executive branch is simply without precedent. The president has no authority to establish federal agencies."

A professor of law and economics who studies government said the suit could establish that DOGE violates the Federal Advisory Committee Act. "A court certainly could order compliance with the Act, including open meetings and retention of public records," emailed David A. Super of Georgetown University Law Center.

"This litigation may well compel the administration to state clearly what DOGE is and whom it is empowering. If so, that will be a very good thing for the nation," Super said.

What if Musk and DOGE refuse to do what courts tell them? An ominous sign came from Vice President J.D. Vance, who in a 2021 podcast called for presidential disobedience if courts try to hinder a purge of the federal bureaucracy. Vance cited Andrew Jackson's possibly apocryphal sneer at courts' impotence: "The chief justice has made his ruling. Now let him enforce it."

Some lawyers said there are ways.

"If individuals involved with DOGE disregarded an order, the court could hold them in civil contempt," Super said, adding that Trump's pardon power does not extend to that sanction. "Therefore, a court could jail any individual found to have violated its order until they come into compliance."

Sus, the CREW lawyer, said that the government's defense lawyers are also vulnerable to judicial coercion. "The judge will hold them accountable for any failure to obey court orders. He can issue sanctions, and he can refer them to the bar, and Donald Trump does not control the bar associations of this country. That's another avenue of accountability.

"The Supreme Court's ruling for immunity for the president does not extend to his lawyers." 

Erwin Chemerinsky, a constitutional law scholar and the dean of UC Berkeley School of Law, said it's an open question. "I think the courts, including the Supreme Court, will stand up to Trump. We already have seen it with courts enjoining his executive order on birthright citizenship and his impounding of funds. 

"What is impossible to know is how much the courts will stand up to Trump and what Trump will do when courts rule against him."

If Trump backs a defiant Musk and DOGE, said Michael Rubin, a veteran civil liberties lawyer at Altshuler Berzon LLP, "either we would experience a massive, throw-the-bums-out electoral response in the midterms, or we'd have to acknowledge that our proud 250-year-old tradition of representative democracy has come to an end."

Rubin said he's hopeful. "I truly believe that it will not come to this, or anywhere close."