Musk's "5 bullets" mess

From a Saturday tweet to a government-wide email to pushback and confusion to pullback to a whining tweet on Monday evening. Also: Trans litigation update.

In the less than 60 hours since Elon Musk tweeted on Saturday that all federal employees would be getting an email “requesting to understand what they got done last week“ and that “[f]ailure to respond will be taken as a resignation,“ Musk’s non-department, non-governmental inefficiency has been on full, public, and painful display.

Musk’s tweet was followed by the now-infamous hr@opm.gov “5 bullets” email purportedly sent from the Office of Personnel Management later Saturday via the newly established government-wide email system:

Thus unleashed a hellstorm across government agencies, as employees and managers who actually understand what government agencies do considered the legal, ethical, and practical ramifications of having employees share information with a random email address outside of their agency.

Already, the email lacked arguably the key element of Musk’s tweet — that an employee not responding would equate to their resignation from government.

Despite that change, the pushback was clear within hours, as FBI Director Kash Patel became one of the most prominent officials to immediately tell his employees to “pause any responses.” He was, however, by no means alone.

That, though, was followed almost as quickly by the confusion. Soon after Patel’s message went out, a message reported by Marisa Kabas that Law Dork also viewed came down from the Justice Department’s Assistant Attorney General for Administration — in theory, above the FBI — directing that “employees should be prepared to follow the instructions.”

Sunday was a continuation of that conflicting, confusing fallout across the government, summed up by this evening report from The Washington Post, which began:

Elon Musk’s demand that all 2.3 million government workers justify their work prompted confusion and resistance on Sunday, as several government agency leaders told their staffs not to reply to a mass email requesting bullet-point summations of their accomplishments.

As Monday — deadline day — opened on the nation, confusion reigned.

The Justice Department’s AAG for Administration sent a follow-up email stating, “Due to the confidential and sensitive nature of the Department's work, DOJ employees do not need to respond to the email from OPM.”

For some, it was not that clear on Monday. Multiple federal employees who have spoken with Law Dork provided information and emails showing changing guidance about how to respond — or not — to the “5 bullets” email coming sometimes within an hour of one another.

One employee who was off on Monday told Law Dork of multiple phone calls from their supervisor — initially being told they needed to respond to the email and then a second call within the hour that a response is voluntary.

Another employee in another agency detailed a similar on-again, off-again series of emails sent to employees Monday morning.

Then, during a meeting of the Chief Human Capital Officers Council on Monday afternoon — as a Justice Department email sent after the meeting detailed — OPM informed everyone attending that responses to the “5 bullets” email are voluntary and confirmed that a non-response is not a resignation. That news then trickled down to some, but not all, employees in many, but not all, agencies by 5 p.m. — albeit with slightly differing language being sent within those different agencies.

Among the most stark (and, perhaps, most passive-aggressive toward Musk?) of messages reviewed by Law Dork was the one sent to Department of Health and Human Services employees around 5 p.m. Monday.

After being told that OPM “rescinded th[e] mandatory requirement“ of the initial email and being told that there was “no HHS expectation that HHS employees respond to OPM and there is no impact to your employment with the agency if you choose not to respond,” HHS employees were provided a set of, yes, five bullet points — “guidelines” for “if you choose to respond,” as the unsigned email stated. They were:

• Respond to the email by the deadline established (today @ 11:59 P.M.).

• Keep your response at a high level of generality and describe your work in a manner to protect sensitive data, personally identifiable information, and applicable privileges to the extent possible. Do not (1) identify, by name or title, any other HHS employees with whom you have been working; (2) identify, by case name or otherwise, matters you are working on, or (3) identify any specific grants or contracts, or any specific grantees or contractors.

• If you are engaged in scientific research or reviews, do not identify by name any drugs, devices, biologics, therapeutics, or similar items in your response. If you are engaged in any scientific experiments, research, or reviews, do not provide information that could allow anyone to identify the precise nature of your work.

• Respond by replying to the OPM HR email as instructed, with a cc: to your supervisor.

• Assume that what you write will be read by malign foreign actors and tailor your response accordingly.

tl;dr: Assume deer dead

Of course, this is not the end of this — to give just one example, NBC News reported on Monday that “DOGE will use AI“ to review the responses to the OPM email.¹

But, this is the first broad-based, top-to-bottom, public pushback against Musk from within the government that we’ve seen — and Musk blinked and whined.

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Trans military service update

The latest in the challenge to President Donald Trump’s anti-transgender military executive order — in which U.S. District Judge Ana Reyes held a two-day hearing last week — is a new scheduling order that came out of a late afternoon status conference on Monday.

The military’s guidance implementing the executive order is expected by Wednesday. Reyes, with the agreement of plaintiffs’ lawyers and the government’s lawyers, set a schedule on Monday reflecting that.

First, she ordered the guidance to be shared “as soon as practicable“ after issued. Then, an amended complaint and preliminary injunction request are to be filed by March 3, the government’s opposition is to be filed by March 10, and the hearing will be held March 12.

Although not listed in the minute order, Reyes also told the plaintiffs to notify the court and government immediately after the guidance is issued if they are going to seek a temporary restraining order. Reyes said she would keep her schedule clear on Thursday if needed for arguments — and suggested the lawyers should do the same.

Also not listed in the minute order — or discussed at the conference: Justice Department Chief of Staff Chad Mizelle’s judicial misconduct complaint filed against Reyes.

1. The “5 bullets” email already led to fallout in ongoing litigation over the email system, with mixed questions of cause and effect detailed by Marcy Wheeler at emptywheel on Monday.