“Entangled With the Federal Government”

Federal law requires officials to divest from personal business dealings that might conflict with their work. In the executive branch, the rules around disclosure and divestiture of conflicts of interests are directed and enforced by the independent Office of Government Ethics.

Refusing to divest conflicts of interest could run afoul of US Code 208, which subjects officials to criminal penalties for using their office to advance personal financial interests.

Should Musk join the Trump administration — either as a full-fledged cabinet member or as a chair of a commission — he could be subject to this ethics law as a federal employee, requiring him to potentially sell off his billions of dollars in assets before assuming the role.

Trump has appeared to go back and forth about a potential role for Musk in his administration, saying in August that “[Musk] is running big businesses and all that” and therefore he didn’t “know how he could do that with all the things he’s got going.” Musk has continued to press the issue, although it’s not fully clear what kind of role he is envisioning.

When he first assumed office in 2017, Trump refused to put the hundreds of businesses he owned in a blind trust or sell off his assets; instead, he gave control over the daily operations of his companies to his sons and a business partner. The move was condemned by Shaub, then the Office of Government Ethics director, for breaking with decades of ethics standards.

Trump’s cabinet members followed suit. At least four appointees maintained their ties to business groups that they may have regulated.

Don Fox, a former official at the Office of Government Ethics during the Bush and Barack Obama Administrations told APM Reports at the time, “If the boss doesn’t care, why should you, then?”

But Trump’s own holdings pale in comparison to Musk’s sprawling enterprises.

“This man is so entangled with the federal government . . . it makes Trump’s own conflicts of interest look small in comparison,” Shaub said.

Last year, SpaceX, Musk’s aerospace and digital technology company, had contracts with sixteen different agencies ranging from NASA and the Defense Department to the Department of the Interior. Tesla, Musk’s electric vehicle venture, contracted with the Energy, State, and Defense Departments. Altogether, Musk’s companies were awarded $3 billion across nearly a hundred different contracts last year — and account for at least $15.4 billion in government funding in the past decade.

Musk “has massive involvement with the government in terms of contracting, there are a lot of ways he could wind up affecting his own financial interests,” said Shaub, explaining that Musk would almost certainly encounter these conflicts if he was appointed to a cabinet position. Beyond his massive portfolio of investments, his companies, SpaceX and Tesla, are frequently funded by, and feuding with, various federal agencies.

Meanwhile, federal agencies have targeted Musk’s companies for a range of incidents of malfeasance, labor violations, and consumer protection issues, leading to at least twenty recent investigations or reviews.

If Musk were to take a position in the cabinet, he could directly discourage investigations or grant preferable government contracts to his companies on a wide range of issues.

“Obviously, if you get involved in anything having to do with climate change, the automotive industry, electric vehicles, obviously Tesla’s an issue,” said Richard Painter, a University of Minnesota law professor and the vice chair of the ethics-focused nonprofit Citizens for Responsibility and Ethics in Washington. And that conflict arises with his other major tech company, SpaceX, around “the NASA program, the space program, any of that.”

“And then there’s X,” Painter continued, discussing Musk’s acquisition of the social media site formerly named Twitter. “If he’s going to hold onto X and social media — decisions about the Federal Communications Commission and all that, he’s gonna have to stay away from.”

Working Around the Rules

Could Musk join Trump’s cabinet without divesting his billions in holdings? It’s been done before.

Industry leaders are frequently invited to join government councils for the industry-specific expertise they may bring to policymaking. These experts often occupy advisory positions and make recommendations for policy — while they continue to operate within their industry. They’re also subject to minimal conflict of interest rules.

But Shaub said that the position Musk appeared to be seeking was likely, at the very least, the chair of such an advisory committee — which, he said, is usually classified as a “special government employee.” Such officials are subject to the same conflict of interest penalties as full government employees.

“The conflict of interest law applies with full force to a special government employee,” said Shaub.

Other industry leaders have similarly tried to avoid divesting from their assets as they joined previous administrations, despite evident impropriety. Billionaire investor Stephen Schwarzman, the cofounder and CEO of the Blackstone Group, chaired Trump’s business advisory council as one of Trump’s close outside advisers during his presidency — all while his private equity firm had an interest in administration policies. But the advisory council was not subjected to federal ethics rules applying to government employees.

There’s also a possibility that Trump could grant Musk a waiver exempting him from the ethics rule, allowing him to keep his business dealings even while he works for the government.

Technically, such waivers can only be issued when conflicts of interest are determined to be unlikely to “affect the integrity” of the position. But practically speaking, the Trump White House would have unilateral authority to issue a waiver to Musk, Shaub said.

“Once the waiver is issued, even if it’s inappropriately issued, it counts,” Shaub explained. And the Trump administration would have the authority to do so because, he said, “There’s no one to stop them from doing it.”

A 2018 Senate bill attempted to reinforce the requirements to divest “conflicted assets” for everyone from members of Congress and senior government officials to the president and vice president. The bill would have required officials to sell their “conflicted assets” and reinvest them in Federal Employee Investment Accounts, which are managed by the Treasury. That bill did not advance.

But perhaps the biggest benefit to Musk could come if he follows ethics standards and chooses to divest from his companies. By doing so, he could score an unprecedented tax break.

“Allows You to Further Gain on Required Divestitures”

The tax break that Musk could win if he ultimately divests from his business dealings as a government official was created in 1989 as a way to “minimize the burden” for public servants who were forced to sell off property or investments that posed a conflict of interest with their work. (Musk could only qualify for the tax break if he received a full government employee position like a cabinet secretary — as opposed to a “special” advisory position.)

The Office of Government Ethics can, for any executive branch employee, issue a “certificate of divestiture” when they sell off conflicting business interests. This allows the employee to utilize Section 1043 of the tax code and defer capital gains taxes on the investments they sell — so long as they invest the money in a diversified investment fund, like a mutual fund. Technically, the tax is simply deferred until the new assets are sold. But if they are never sold, “the deferral is permanent,” according to tax attorney Bob Rizzi at the Washington, DC–based firm Holland & Knight.

“One of the key provisions of the code is Section 1043 that allows you to further gain on required divestitures,” Rizzi explained during a recent presentation about executive branch appointments ahead of the 2024 election. “Section 1043 planning is a major part of planning for some of these appointments, and it can be a very welcome opportunity for somebody who is committed to going into the government and divesting and mitigate some of the costs of doing that.”

And there’s no limit on how large the tax break can be, meaning that it can be used to avoid paying taxes on millions, or even billions, of dollars in assets, so long as the money is quickly moved to a mutual fund or other qualifying account.

The Office of Government Ethics notes in a fact sheet that the divestiture program’s tax deferral is “not an employee benefit” and is intended only to “reduce the financial burden of complying with ethics laws.” But experts say many officials see the tax break as a perk.

“It’s absolutely a nice benefit of government service,” said Painter. “Some people, we thought, wanted to go into government service so they could have the ethics lawyer get them a certificate of divestiture.”

In December 2016, weeks before Trump took office, a group of Senate Democrats took aim at the “little-known tax loophole” that allows cabinet appointees to delay their tax bill indefinitely. The bill, which was aimed at Trump and his appointees, would have limited the amount of capital gains tax they could avoid to $1 million. The bill was abandoned in 2018.

Because of the major financial benefits involved, tax law only allows government employees to defer taxes on business divestments that specifically resolve conflicts of interest.

“I have a hard time imagining how the richest man in the world could possibly divest enough to eliminate conflicts of interest,” Shaub said of Musk. So, as a result, he said, “In a normal world, I would see it as unlikely that he would get a certificate of divestiture.”

But under a second Trump administration, Shaub said, “I think it’s possible that they might do it.”

Musk has gotten rich in part because he’s avoided large tax bills in the past. Thanks to exploiting tax loopholes, in 2018, Musk paid no federal income tax — and in previous years, he’d paid less than $100,000 on reported income that ranged up to $1 billion. His tax burden also doesn’t reflect the billions he owns in shares in his companies, a financial arrangement that allows the ultrarich to further avoid income taxes.

Musk’s many holdings mean his potential divestment tax break could be immense. Musk’s majority shares in SpaceX are worth tens of billions; he also has $73 billion in Tesla shares. And although X has dropped precipitously in value since Musk’s takeover, his stake in the company is still worth billions.

“I don’t think anybody should issue a certificate of divestiture for billions of dollars,” said Shaub, who emphasized that he supported the divestiture program in other, less extreme cases. “That seems like an abuse of the program.”

But the Office of Government Ethics has doled out big tax breaks to other appointees in the past. In May 2006, former president George W. Bush nominated Paulson, then the CEO of investment firm Goldman Sachs, as secretary of the Treasury.

Paulson sold off $484 million in Goldman shares upon taking office to avoid holding millions of stock in a multinational investment bank while also running the Treasury Department. And he received an Office of Government Ethics certificate to do so tax-free, avoiding paying likely tens of millions in capital gains tax.

Had Paulson held onto the stock, its value likely would have plummeted two years later during the 2008 financial crisis.

“There would have been at least a $60 million tax on that [divestment], but I got him a certificate of divestiture over at the Office of Government Ethics,” said Painter, who was the chief White House ethics lawyer at the time. “He sold the stock, bought conflict-free assets, and I don’t know if he’s ever paid the tax. I have no idea.”