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3 lawyers with ‘elite establishment credentials’ have joined Musk’s DOGE effort, report says

By Debra Cassens Weiss

February 12, 2025, 3:10 pm CST

Three lawyers who have joined Tesla CEO Elon Musk’s Department of Government Efficiency have “elite establishment credentials,” according to a report by ProPublica.

Two of the lawyers have clerked for U.S. Supreme Court justices, while the third has been hired as a Supreme Court clerk for the 2025-2026 term, ProPublica reports here and here. They also have BigLaw ties. The lawyers are:

  • James Burnham, who is the DOGE’s general counsel. A former clerk to Justice Neil Gorsuch, Burnham was formerly a Jones Day partner. He worked in the White House counsel’s office and the U.S. Department of Justice in the first Trump administration. More recently, he launched a boutique law firm and a litigation finance fund.

  • Keenan Kmiec, a former clerk for Chief Justice John Roberts. He worked at a “corporate law firm” (identified as Sidley Austin on LinkedIn), worked at his own firm handling insider trading litigation, worked at a Swiss foundation promoting blockchain, and was the CEO of a startup.

  • Jacob Altik, who has been hired to clerk for Gorsuch beginning this summer. He is a former associate at Weil, Gotshal & Manges and a former intern at the New Civil Liberties Alliance, a nonprofit that aims to “protect constitutional freedoms from violations by the administrative state.”

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The words of U.S. Supreme Court Justice Clarence Thomas have found their way into one of multiple lawsuits targeting the Elon Musk-helmed Department of Government Efficiency (DOGE).

Those words will likely prove familiar.

In a 64-page lawsuit filed by 14 states on Thursday in the U.S. District Court for the District of Columbia, the plaintiffs attacked the basic constitutional legitimacy of the cost-cutting organization with an iteration of the exact same argument that spelled doom for onetime special counsel Jack Smith in the Mar-a-Lago documents case.

As readers will recall, last summer, Chief Justice John Roberts and a majority of the justices issued a broad grant of presidential immunity; then, two weeks later, U.S. District Judge Aileen Cannon used a concurrence to that opinion by Thomas to squelch Smith’s authority and dismiss the case against Trump with a novel reading of the U.S. Constitution’s Appointments Clause.

Now, led by New Mexico, the latest anti-DOGE complaint uses an Appointments Clause argument of its own.

“There is no greater threat to democracy than the accumulation of state power in the hands of a single, unelected individual,” the lawsuit begins. “President Trump has delegated virtually unchecked authority to Mr. Musk without proper legal authorization from Congress and without meaningful supervision of his activities. As a result, he has transformed a minor position that was formerly responsible for managing government websites into a designated agent of chaos without limitation and in violation of the separation of powers.”

The lawsuit, which names Musk, DOGE, and Trump as defendants, argues the executive branch lacks the authority to either unilaterally create or “dismantle” a federal agency.

“Framers of the Constitution crafted the Appointments Clause to protect against such tyranny in our system of government,” the lawsuit reads. “The Appointments Clause was designed to buttress the separation of powers in two ways: first by requiring that Congress create an office before the President can fill it, and second by requiring that the Senate confirm a nominee to an office created by law.”

To hear the plaintiffs tell it, Musk’s “significant and unprecedented” perch within the Trump administration has effectively rendered him an unappointed “principal officer” of the United States.

“Mr. Musk takes actions that can only be taken by a nominated and confirmed principal officer of the United States,” the lawsuit goes on. “But President Trump did not appoint Mr. Musk with the advice and consent of the Senate. Mr. Musk does not occupy an office created by law and has no authority to exercise the powers of a principal officer, or any other officer. Mr. Musk’s actions violate Article II, Section 2 of the United States Constitution.”

This framework is precisely how Cannon viewed Smith. And, like Cannon, the plaintiffs have cited Thomas to make their case.

From the lawsuit, at length:

Importantly, the Appointments Clause only grants the President the power to nominate officers to offices that Congress has already “established by Law.” U.S. Const. art. II, § 2, cl. 2. “If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office.” Trump v. United States, 603 U.S. 593, 650 (2024) (Thomas, J., concurring). “By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist.” Id. at 646 (Thomas, J., concurring).

The lawsuit, in a secondary argument, also says Musk and DOGE are acting beyond any statutory authority.

The plaintiffs are asking the court for a temporary restraining order and a preliminary injunction that directs Musk to disclose how any government data obtained by DOGE has been used so far, that orders Musk to destroy any copies of such data in his possession, and that broadly bars him and DOGE from acting on any such data. The lawsuit contains a laundry list of 10 would-be prohibited actions.

New Mexico and the other states, in often bombastic terms, are also asking the judge to echo some of their legal conclusions and rhetoric by issuing declaratory relief that “Musk’s officer-level governmental actions to date, including those of his subordinates and designees, are ultra vires and shall have no legal effect” and “declare that any future orders or directions by Mr. Musk or DOGE” are similarly unlawful.

No judge has been assigned to the case of this writing.

The U.S. Department of Justice has reportedly issued a warning to a pro-Donald Trump political action committee run by Elon Musk over the group’s daily $1 million lottery for registered voters in swing states.

A letter from the DOJ’s public integrity section was recently sent to Musk’s America PAC about the lottery, CNN reported on Wednesday, citing unnamed “people briefed on the matter.”

The anonymous sources cited by the cable news network say the letter warns that the lottery potentially violates federal law.

Musk announced the lottery at a Trump campaign event in Harrisburg, Pennsylvania, on Saturday. Since then, at least two winners have been announced — each of whom had already voted by mail as Republicans in the Keystone State before they entered the sweepstakes.

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Lawyers seek over $288K per hour in attorney fees, payable in Tesla stock, for suit toppling Elon Musk’s compensation

By Debra Cassens Weiss

March 4, 2024, 1:28 pm CST

The three law firms that successfully sued to overturn SpaceX owner and Tesla CEO Elon Musk’s $55.8 billion Tesla compensation package are seeking attorney fees payable in company stock worth more than $5.6 billion.

The lawyers are seeking about 11% of Tesla shares worth more than $51 billion that were freed up as a result of the litigation, according to the brief supporting the fee application. They are also seeking more than $1 million for litigation expenses.

Law360, Reuters, Fortune and the New York Post have coverage of the fee request.

The fee request amounts to more than $288,000 per hour, according to the 127th footnote in the brief.

“These implied hourly rates and lodestar multiples are admittedly unprecedented,” the brief says. “But that is a function of the gargantuan size of the tort underlying this action, and plaintiff’s counsel’s
achievement of an unprecedented, total victory in challenging that tort.”

The three firms seeking the fees are Bernstein Litowitz Berger & Grossmann; Friedman Oster & Tejtel; and Andrews & Springer.

The record for a fee award in a shareholder case was $688 million in 2008, which was awarded to lawyers who sued over the collapse of the Enron Corp., according to the news coverage.

Judge Kathaleen McCormick of Delaware’s chancery court had ruled Jan. 30 that Musk’s $56 billion pay package was unfair to shareholders, Reuters previously reported.

The name plaintiff in the case is stockholder Richard Tornetta, who was at one time the drummer in the band Dawn of Correction, according to the New York Post.