Elon Musk’s “Department of Government Efficiency” spent the first month of the second Trump presidency ransacking federal agencies — and racking up more than a dozen lawsuits challenging its structure, operations, and power.
In response, both Musk and President Donald Trump attacked judges that dare to apply legal scrutiny to DOGE and flirted with defying court orders altogether.
Simply disregarding the courts, however, would create terrible consequences for the country — according to past remarks from DOGE’s lawyer, James Burnham, who reportedly is serving as the team’s general counsel.
“If you destroy the rule of law, you’re not going to have a country anymore,” Burnham said during an October panel of the Federalist Society in Washington. “And things are not going to work for anybody, including the people who are sponsoring the attacks.”
“If you destroy the rule of law, you’re not going to have a country anymore.”
During the panel, Burnham — who worked for the first Trump administration and did not respond to The Intercept’s questions about his current role — blasted President Joe Biden for criticizing Supreme Court rulings and liberal critics for poking around the justices’ finances and social networks.
He fretted that imposing term limits for the Supreme Court could lead to the worst-case scenario.
“It’s just going to be a race to the bottom and the ultimate consequence is going to be that the political branches do not listen to the Court anymore,” he said.
“It is not hard to imagine a president who tells the Court he does not care about their opinion, which by the way is how it works in most countries,” Burnham said, musing about what a “President DeSantis or someone like that” might do in that hypothetical scenario.
Burnham dismissed the suggestion that Trump himself might jeopardize the balance of power in the American constitutional system. He even chuckled when the panel moderator predicted that, once elected, Trump “absolutely will shamelessly attack judges who defy him.”
By Burnham’s assessment, liberals’ efforts were “a thousand times more dangerous than anything that Trump has ever done vis-à-vis the court system, and I think ever would do.”
DOGE and Crony Show
Burnham has plenty of experience boosting Trump’s agenda and defending his unconstitutional tactics.
During the first Trump administration, Burnham left Jones Day, a conservative-leaning heavyweight law firm, to join the White House counsel’s office, where he worked on the nominations of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh. He then moved to the Justice Department, where he served as a deputy assistant attorney general in the Civil Division and was briefly floated as a potential judicial nominee himself.
While at the Justice Department, Burnham tried his best to justify the White House’s decision to suspend CNN reporter Jim Acosta’s press pass in retaliation for challenging Trump’s rhetoric about immigrants. A judge ruled the White House’s move likely violated the First Amendment, and Acosta’s pass was reinstated.
During his stint at Justice, Burnham got the chance to defend Trump’s first stab at misappropriating funds and subverting Congress’s power over federal spending — namely his attempt to divert billions of dollars to the border wall that Congress had allocated for other purposes. A federal appellate court ultimately ruled the move was illegal, and the Biden administration dropped Trump’s plan before it could be considered by the Supreme Court.
Burnham also defended Trump’s tactic of bypassing the Senate’s role in vetting and confirming high-ranking executive branch officials. A district court ruled that Trump could not circumvent the Constitution by simply installing his preferred head for the U.S. Citizenship and Immigration Services, who faced Senate opposition, in an “acting” role.
In early 2020, Burnham became an adviser to Attorney General Bill Barr, “helping him with speeches and stuff,” as Burnham described the position at another Federalist Society panel in 2023.
During the Biden administration, Burnham clerked for Justice Gorsuch before returning to Jones Day. While at the firm, he represented Barr and former Transportation Secretary Elaine Chao during their interviews with the House January 6th Committee and dabbled in cryptocurrency regulatory matters.
In 2023, Burnham left Jones Day to found his own boutique firm, along with an investment fund that finances lawsuits serving a “conservative mission.”
The following year, Burnham started appearing as a regular host for one of the Federalist Society’s podcasts. In wide-ranging discussions of social media power, Musk came up somewhat frequently, and Burnham expressed admiration for the “crazy guy from South Africa” without hinting that they might soon work together.
In one episode, recorded at some point after the November presidential election and published online in late January, Burnham even touched briefly on DOGE, but did not discuss his involvement, if any, up to that point. (The Federalist Society did not respond to an inquiry about when this episode was recorded.)
“You’ve now got the DOGE, the Department on Governmental Efficiency, run by a couple of very successful tech entrepreneurs,” he said with a smirk, offering DOGE as an example of “tech rebels” supporting Trump.
DOGE Days
In mid-January, after the New York Times first reported his advisory role with DOGE, Burnham withdrew from representing clients in two federal cases, telling one court in a filing that it was “due to his departure from private practice.”
So far, Burnham has not appeared in any of the proliferating lawsuits regarding DOGE — some of which sparked the remarks from Trump and Musk questioning the role of the courts. Earlier this month, when a federal judge blocked DOGE from accessing a sensitive database in the Treasury Department, Musk attacked him on X as a “corrupt judge” and called for his impeachment. Musk also reposted a tweet that mused about defying the ruling.
“Maybe we have to look at the judges because I think that’s a very serious violation,” Trump said at a press conference with Musk in the Oval Office the next week. The White House press secretary called injunctions against DOGE and the Trump administration’s executive orders “an abuse of the rule of law and an attempt to thwart the will of the people.”
On Monday, a Republican member of Congress filed articles of impeachment against the federal judge in the Treasury database case, and Musk cheered another Republican who promised to file additional impeachment articles.
As DOGE’s general counsel, Burnham would appear to have a responsibility to advise DOGE how to operate within the law. As he counsels Musk, his DOGE crew, and anyone else considering flouting judicial orders in pursuit of power, Burnham might consider his own charge to fellow conservatives before the election.
Asked at the October Federalist Society panel what role attorneys should play in protecting the Supreme Court and the integrity of the judiciary, Burnham was unequivocal.
“The people in this room have an obligation to speak out,” he said, “and do as much as possible to defend the institution. Because it can’t defend itself.”
