Musk’s status as a special government employee protects him from typical ethics disclosures, a loophole that has been used by administrations from both parties since the last century.

“Special government employees have been a pain in the neck since Day One,” said Richard Painter, the chief ethics lawyer for former President George W. Bush from 2005 to 2007. “They handle issues that may affect their businesses, but there are no public financial disclosures to keep track of them.”

For Musk, the world’s richest man, the possible conflicts of interest are colossal. He is a large government contractor who has had multiple dealings with agencies that regulate his businesses.

As a special government employee, Musk is exempt from some disclosure laws required of full-time employees, or what Painter describes as the “SGE disclosure loophole.”

Special government employees work for no more than 130 days in any 365 consecutive days and can be paid or unpaid. They are supposed to provide important but limited services to the government that might be unavailable among an agency’s regular employees.

However, several presidents have brought in special government employees for much broader purposes, generally high-profile adviser roles, which have attracted scrutiny from ethics officials.

The Biden White House brought in top communications adviser Anita Dunn as a special government employee twice before she finally joined the administration full-time ahead of the 2022 midterm elections. She was paid just below the salary threshold for disclosure obligations, keeping her client list private along with a substantial asset portfolio.

Jeff Zients, former President Joe Biden’s chief of staff and one of the richest members of his administration, was also brought in as an uncompensated special government employee ahead of the midterm elections.

Painter holds that special government employees were never intended to be powerful people with the ear of the president and vast administrative influence, though he said the fact that presidents from both parties have used the loophole would blunt any effect of Democrats criticizing Musk.

Before Zients and Dunn, the first Trump White House attracted criticism by hiring Keith Noreika to run the Office of the Comptroller of the Currency as a special government employee. Prior to that, Hillary Clinton raised eyebrows during her run as secretary of state for bringing in her top aide, Huma Abedin, as a special government employee, allowing Abedin to continue working at the Clinton Foundation while advising her at State.

However, Musk’s problems may be bigger than those of anyone before him, given that he has pledged to overhaul vast swaths of the government and hired his own staff at the Department of Government Efficiency.

“Musk should exceed any of the transparency rules and recuse himself from meetings that conflict with his companies’ contracts and regulatory interests,” said Scott Amey, general counsel at the Project on Government Oversight. “Musk should also reveal who is on the DOGE team, who they are meeting with, and all of their work product so as to not violate the public trust.”

The Washington Examiner contacted the White House asking for a response to Musk’s critics and whether his role will end after 130 days. Officials did not respond directly to those questions but sent a statement from press secretary Karoline Leavitt.

“Elon Musk is selflessly serving President Trump’s administration as a special government employee, and he has abided by all applicable federal laws,” Leavitt said.

Jeff Hauser, executive director of the Revolving Door Project, argued that Musk’s ethical matters extend beyond his status as a large government contractor.

Tesla, Musk’s electric vehicle company, is the subject of an investigation from the National Highway Traffic Safety Administration over traffic crashes that may have been caused by self-driving technology. The Federal Aviation Administration proposed civil penalties against SpaceX, and Musk also waged battles against the National Labor Relations Board.

“There are an overwhelming number of ethical issues that are raised by his appointment as an SGE and the range of access he seems to enjoy across the executive branch,” Hauser said. 

The fact that wealthy people such as Dunn, Zients, and Musk are able to circumvent ethics disclosures by accepting relatively low pay is also problematic, Hauser added.

“We think the idea that if you’re rich enough, you can essentially buy opacity over transparency is a real problem,” he said.

For now, critics may have little recourse to Musk’s special government employee status, but Painter said he could find himself in trouble if evidence emerges that he’s worked for more than 130 days.

“If he goes to 131 days, somebody is going to go into court and say he’s really a full-time employee and demand to see his financial disclosure forms,” Painter said.