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Winston Churchill once said, “nothing in life is so exhilarating as to be shot at without result.” One might also say there’s nothing so fun as being right about a big story totally by accident. Or rather, in this case, I actually knew about what I’m about to describe to you but forgot. Early February was at least a hundred years ago and I’ve been working on a million different stories since then — and, so, I’d totally forgotten about these details. But seriously, people, let’s not make it about me.
Here’s the story.
As you know, Elon Musk went on Twitter on Saturday and said federal workers had to list their accomplishments for him or else. The email was sent out over something called The Government-Wide Email System (GWES), a DOGE creation from the first days after the takeover of the Office of Personnel Management. (This will be a key point.) The email itself didn’t include Elon’s threat of termination (or, technically, a constructive resignation). But the message was heard loud and clear. Then pretty much the entire federal government spent 72 hours trying to figure out whether compliance was or wasn’t required. On Sunday morning, I flagged this Privacy Impact Statement (PIA) which OPM prepared for the GWES system back on February 5th. That document was flagged to me by a government tech. And as I noted, it states very clearly that compliance with any requests you receive via GWES is totally voluntary. You can respond to these emails or not. You can share information or not. It’s totally up to you. It’s very clear.
But I didn’t really have any clear idea of why this document existed or why it made such strong representations about the voluntariness of anything tied to GWES. (As is often the case, Marcy Wheeler had already put it a lot of this together even though I hadn’t.)
Well, here’s the story.
On January 27th, a lawyer named Kel McClanahan filed a lawsuit on behalf of anonymous (“Jane Doe”) civil servants pursuant to several federal laws over GWES. (I’m going to give you the broad outlines of this litigation. If you want the nitty-gritty details, here’s the case.) McClanahan argued that under these various federal laws, if DOGE/OPM wanted to set up this new email system they had to jump through a bunch of different hoops. But the DOGE folks don’t care for hoops. We know this, right? So to get out of that they had to make various promises and representations about how GWES would be used.
One of those was the PIA, which, among others things, represented that anything to do with the GWES emails would be voluntary. You can look, not look, respond, not respond, etc. There’s also something called the E-Government Act. That requires an agency to produce a privacy impact report. And once you do that the PIA is binding. So people can rely on it. So there’s a few different legal requirements and court representations flowing together here. But once OPM produced that PIA document I mentioned over the weekend it became binding. And critically, the DOJ lawyers who were representing OPM (and in effect DOGE) on the case made those representations themselves. Basically, they vouched for those representations being true. And that, along with other promises, is why GWES got the green light.
That second part is important. There’s what the PIA does on its own and there’s the repercussions of those DOJ lawyers using it as part of their arguments in court and vouching for it being true. If it’s not, those lawyers can be sanctioned by the judge.
Now let’s leave the world of lawyers and step into Elon World. On Saturday, Musk went on Twitter and said, you have to answer this or be fired. The next day, Sunday, McClanahan contacted the DOJ lawyers and told them he was filing a motion in the case to seek sanctions against them for making false representations to the court. I guess you have to give opposing counsel 21 days to respond to these things. But here’s the further filing from yesterday in which he asks for that period to be shortened. McClanahan is asking the judge to compel the lawyers to say what they knew about GWES and whether they knew these claims were false.
We don’t, of course, know that those DOJ lawyers were lying themselves. Maybe the DOGErs told them that but of course Elon’s a freak and he didn’t care. Lie to the lawyers and fire them later seems like Elon rules. But as McClanahan told me last night, “if [the lawyers] wrote it knowing that it was not accurate, they’ve committed a fraud on the court.” And, between us, I hear that’s bad. Is that bad? It’s bad.
According to McClanahan, “the evidence strongly suggests that OPM’s lawyers called them up after I sent them the motion for sanctions over this on Sunday and told them to knock it off and that’s why they reversed course on Monday and said it’s voluntary.”
Now, there was clearly a large political dynamic at play yesterday as well — the whole thing about the entire federal government of the United States spending 48 hours trying to figure out how to respond to Elon Musk’s weekend prank email and becoming a global laughingstock in the process. But I’m pretty sure McClanahan’s right that this court case also played a big role, at least within OPM. And remember that it’s not just OPM. OPM lawyers are involved but it’s Department of Justice lawyers who actually appear before the judge and make these representations. The U.S. government had already made representations to a judge that what Elon was doing would never and could never happen. And then it did. Because Elon …
There’s an additional point here about the courts in general, as much as a good bit of the federal judiciary is now corrupted by far right apparatchiks who routinely use the law purely as a tool to pursue ideological agendas. Getting people into court, especially sloppy and stupid people, often forces promises, representations and thus constraints that the reckless and feral will later violate and thus gum themselves up in the legal process. This turns out to be a good illustration.