Does the Foreign Emoluments Clause Apply to Elon Musk?

The role of Elon Musk, the world’s richest man, in the Trump administration has prompted concerns over ethics, transparency, and corruption. First, President Trump and Musk himself claimed that the Tesla CEO was in charge of the Department of Government Efficiency (DOGE), with the White House later announcing that he is a “special government employee” (SGE) and thus subject to looser ethics requirements than normal federal workers. Then the White House swerved and said he is no longer in charge of DOGE at all but instead is just an adviser to the president, a statement that Trump subsequently seemed to contradict when he told investors and company executives in Miami, “I signed an order creating the Department of Government Efficiency and put a man named Elon Musk in charge.”

Regardless of his official title, Musk should be bound by an important anti-corruption guardrail afforded by the U.S. Constitution: the Foreign Emoluments Clause.

The framers included the Foreign Emoluments Clause (along with the Domestic Emoluments Clause, which applies only to presidents) in the U.S. Constitution to prevent outside interests from corruptly influencing American democracy. The Foreign Emoluments Clause establishes:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. 

The Foreign Emoluments Clause creates a broad prohibition on accepting emoluments, which—according to the first judge to interpret the term in a 2018 case against Trump (District of Columbia v. Trump)—include “any profit, gain, or advantage, of more than de minimis value, received by [the President], directly or indirectly” from foreign governments. Although the case did not reach a definitive resolution before Trump left office in 2021, the judge’s broad interpretation of the term “emoluments” suggested that, if proven, payments that the Trump Organization received from foreign governments would likely have constituted illegal emoluments.

Like Trump, Musk has wide-ranging business entanglements that could produce emoluments from foreign states. For example, Musk’s  Tesla is heavily reliant on China—in recent years, Tesla received  a $521 million loan from Chinese-state owned banks and a lower-than-standard corporate tax rate from the Shanghai government. Musk has met with prominent Chinese officials in various business dealings, and analysts have speculated that Musk’s lobbying in Congress was behind the decision to remove hostile provisions to China from a December 2024 bipartisan spending bill. 

Beyond China, Musk’s company SpaceX is actively negotiating a $1.5 billion deal with the Italian government, and Musk’s artificial intelligence company, xAI, has received investments from the United Arab Emirates and Qatar, the latter of which also helped finance his buyout of X, along with Saudi Arabia. 

Given this laundry list of foreign dealings, there is clearly the potential for Musk to receive further payments directly or indirectly from foreign governments. The 2018 litigation in District of Columbia v. Trump suggested that payments made to an entity that an official has sole or substantial ownership of could constitute an emolument, although Trump maintained (and Musk would likely follow suit) that market rate payments for goods and services do not fall within the scope of the Foreign Emoluments Clause. Further, the complicated nature of Musk’s holdings would raise unprecedented questions about what degree of ownership interest is necessary to trigger an emoluments violation. For instance, Musk is the largest shareholder in his publicly traded company Tesla, with a 12 percent stake, whereas he holds a 42 percent stake in privately owned SpaceX and shares ownership interests in X with an opaque group of private investors—which X’s lawyers revealed in 2023 include Sean “Diddy” Combs and a Saudi prince.

Given Musk’s substantial ownership interests in these entities, future payments he receives from foreign governments could fall within the definition of emoluments. If so, the question of whether such payments would be unconstitutional would ultimately hinge on whether the Foreign Emoluments Clause applies to Musk in his White House role, working across the government on DOGE matters as an SGE and presidential adviser—if he is one.

Only federal officials who occupy an “Office of Profit or Trust” are bound by the Foreign Emoluments Clause. While most executive and judicial officials fall within the provision’s scope, its applicability to SGEs is murkier. Since the creation of the SGE designation in 1962, no court has ruled on whether an SGE meets the legal threshold for holding an “Office of Profit or Trust.” The Office of Legal Counsel in the U.S. Department of Justice (OLC) has intermittently been asked to evaluate whether particular SGEs occupied an “Office of Profit or Trust.” While the OLC has issued various memos related to this issue (in 1986, 1991, 1993, 1994, 1996, 1997, 2005, 2007, 2010, and 2016), no categorical rule has emerged from this body of precedent.

Instead, the OLC has applied two distinct analytical frameworks to assess on a case-by-case basis whether a particular SGE holds an “Office of Profit or Trust” and therefore is subject to the Foreign Emoluments Clause. The first, narrower approach assumes that the only persons to hold an “Office of Profit or Trust” are those who are considered an “Officer[] of the United States” for purposes of the Appointments Clause. There are currently two lawsuits contending that Musk does fall within the Appointments Clause. The second, broader approach assumes that an individual who is not an “Officer[] of the United States” can still hold an “Office of Profit or Trust” for the purposes of the Foreign Emoluments Clause if the SGE’s role presents enough of a risk of foreign corruption to warrant including them within the provision’s scope.

In its most recent guidance from 2016, the OLC declined to opine on which approach is the most appropriate and instead used the two frameworks in tandem to assess whether the SGE in question held an “Office of Profit or Trust.” Although the two methods employ distinct legal analyses, they evaluate the same overarching factors to determine whether an SGE falls within the scope of the Foreign Emoluments Clause.

One central factor in this evaluation is the nature and extent of the SGE’s authority and discretion. If an SGE’s role is primarily advisory in nature, that would indicate that they may not hold an “Office of Profit or Trust.” On the other hand, the OLC would be more likely to consider an SGE to hold such an office if the official had the authority not just to advise the government but also to implement recommendations or otherwise make binding decisions on behalf of the government. Other key factors that are significant to both methods of analysis include whether the SGE’s duties are “continuing and permanent” and whether they are paid by the government.

When applying the broader method for determining whether an SGE occupies an “Office of Profit or Trust,” the OLC considers additional factors that it has deemed relevant to assessing whether an SGE’s role presents a significant enough risk of foreign corruption to justify placing it within the scope of the Foreign Emoluments Clause. These factors include whether the SGE supervises other federal employees, whether they have a security clearance or access to classified material, whether they are subject to federal conflict-of-interest statutes and regulations, and whether they take an oath of office. The OLC has emphasized that no single element is dispositive, but instead the full context is considered in making an individualized determination.

Fragmentary information available to the public about Elon Musk’s official role makes it possible to begin to outline how the OLC could weigh these factors in evaluating whether Musk holds an “Office of Profit or Trust.” Many OLC factors would likely tip the scales toward the conclusion that Musk occupies an “Office of Profit or Trust.” He is a presidential appointee who appears to be interacting regularly with both the president and agencies across the federal government, giving him a degree of access and authority well beyond that which is usually granted to SGEs. And as the head of DOGE, he certainly seems to be supervising federal employees. Musk also reportedly has a high-level security clearance, and his team has accessed classified information. As an SGE, Musk is still subject to federal conflict-of-interest rules.

Although the full extent of Musk’s authority and discretion is unclear, he appears to be operating in a role that is not “purely advisory in nature,” but one that holds at least some authority to bind the government or implement recommendations, which should weigh in favor of determining that Musk is subject to the Foreign Emoluments Clause. Musk has reportedly played a significant role in dismantling the long-standing U.S. Agency for International Development and in shrinking the federal workforce with a deferred resignation offer that a reported 75,000 employees accepted. However, many details that could be relevant to evaluating the scope of Musk’s authority remain unknown, including whether he is leading a government entity or an advisory body governed by the Federal Advisory Committee Act.

How the remaining factors would apply to Musk is less clear. It remains unknown whether he has taken an oath of office. And there are reasonable arguments both for and against considering his office “continuing and permanent.” For example, SGEs are expected to work not more than 130 days in a 365-day period, and Trump’s executive order set an end date for DOGE of July 4, 2026. However, Musk—so far—has not appeared to serve intermittently—indeed, he has boasted about DOGE working weekends and putting in longer hours than normal full-time employees. The only factor that clearly would favor the interpretation that Musk is not bound by the Foreign Emoluments Clause is the fact that he is not being paid by the federal government, but that fact alone is not sufficient.

Since the White House has released very few details about Musk’s official role, it is difficult to decipher how each factor would ultimately be evaluated. Nonetheless, given his extensive foreign business interests and his prominent role in the Trump administration, Musk appears to present exactly the kind of risk of foreign corruption that prompted the framers to write the Foreign Emoluments Clause into the Constitution.

Given the swift politicization of the Justice Department under Attorney General Pam Bondi, the OLC may not be a reliable starting point for offering analysis as to whether Musk is subject to the Emoluments Clause. If the OLC becomes reluctant to reach a conclusion contrary to President Trump’s desired outcome, those seeking to enforce the Constitution’s key anti-corruption guardrail could turn to the courts, just as litigants filed lawsuits against Trump in his first term seeking to remedy his alleged emoluments violations. 

However, efforts to enforce the Emoluments Clause through the courts could face significant challenges. First, plaintiffs would have to establish standing by persuading a federal court that Musk’s emoluments violations caused them imminent and particularized harm. In the Trump emoluments cases, plaintiffs such as the District of Columbia and the State of Maryland, members of Congress, and the watchdog organization Citizens for Responsibility and Ethics in Washington (CREW) put forth a variety of arguments for why they met this standard. Maryland and D.C., for example, argued that their citizens were subjected to unfair competition from Trump’s businesses that were beneficiaries of emoluments, while members of Congress centered their alleged injury on the fact that Trump's conduct deprived them of the ability to vote for or against authorizing his acceptance of foreign emoluments, which Congress is empowered to do under the constitutional provision.

The issue of standing was not clearly resolved in the series of emoluments cases during Trump’s first term. District courts came to distinct and sometimes contradictory determinations, a number of which were subsequently overturned by appellate courts. In the only appeal to reach the U.S. Supreme Court before the clock ran out, the Court declined to hear an appeal of the U.S. Court of Appeals for the Second Circuit’s decision overturning a lower court’s finding that members of Congress had standing. While the court in this case ultimately determined that members of Congress did not have standing, the Maryland/D.C. and CREW cases never reached a definitive resolution. Instead, the Supreme Court dismissed them as moot after the conclusion of Trump’s first term, thereby sidestepping the question of whether those plaintiffs had standing. These disjointed precedents provide little clarity on who, if anyone, would have standing to sue Musk over alleged emoluments violations.

Beyond the standing issue, it is far from clear whether courts would—or even could—effectively enforce the prohibition on accepting foreign emoluments. In the Trump cases, plaintiffs asked the courts to declare that Trump had violated the Constitution and to enjoin him from committing future violations. Even if the courts had ruled in the plaintiffs’ favor, such remedies would have depended on then-President Trump’s willingness to comply with the court’s mandate. Now, with growing concerns about the second Trump administration’s openness to defying federal court orders, the limitations of relying on the courts for accountability should be considered. Nonetheless, a judicial ruling on Musk’s relationship to the Foreign Emoluments Clause would send an important message that the judiciary is committed to enforcing the Constitution’s dictates, even against a recalcitrant executive branch.