As Twitter desperately tries to fend off his hostile takeover bid, Elon Musk could be facing another potential battle with the federal government, with both the Securities And Exchange Commission (SEC) and the Department of Justice reportedly poised to launch an investigation targeting him.
News of potential looming federal probes of Musk, who has previously clashed with the SEC over his ownership of carmaker Tesla, came in a Wednesday report from Charles Gasparino of Fox Business Network. It was not clear whether the agencies are looking into Musk’s handling of Tesla, his $41 billion bid to take Twitter private, or both.
“Both the DOJ and the SEC are clearly scrutinizing this entire matter,” Gasparino said. “Now, we’re getting this from lawyers … they’re clearly monitoring and scrutinizing this entire issue, whether he filed the right forms, whether there’s a stock manipulation case here, whether he’s making public statements that he probably shouldn’t make. … What we do know is that he’s stirred up a regulatory hornets’ nest. DOJ, SEC, I’m getting this from lawyers who deal with them.”
The veteran business journalist said that the Justice Department faces a high bar for bringing a criminal case against Musk, but the SEC could have an easier time coming down on the world’s richest man if it can show he manipulated stock in companies in which he held stakes.
Gasparino tweeted on Thursday: “@elonmusk offers to buy the rest of @Twitter a legal source tells @FoxBusiness @SECGov and @TheJusticeDept have launched what he described as a ‘joint investigation’ into a myriad of Musk regulatory issues primarily involving @Tesla.”
BREAKING: As @elonmusk offers to buy the rest of @Twitter a legal source tells @FoxBusiness @SECGov and @TheJusticeDept have launched what he described as a "joint investigation" into a myriad of Musk regulatory issues primarily involving @Tesla https://t.co/TDFLED1XuI
— Charles Gasparino (@CGasparino) April 14, 2022
Musk’s battle with the Securities and Exchange Commission date back to 2018, when the SEC filed a complaint targeting him after he announced he wanted to take Tesla private. Musk tweeted at the time, “Am considering taking Tesla private at $420. Funding secured.”
Am considering taking Tesla private at $420. Funding secured.
— Elon Musk (@elonmusk) August 7, 2018
The SEC wrote in the complaint:
Musk made his false and misleading public statements about taking Tesla private using his mobile phone in the middle of the active trading day. He did not discuss the content of the statements with anyone else prior to publishing them to his over 22 million Twitter followers and anyone else with access to the Internet. He also did not inform Nasdaq that he intended to make this public announcement, as Nasdaq rules required.
“This unjustified action by the SEC leaves me deeply saddened and disappointed,” Musk responded. “I have always taken action in the best interests of truth, transparency and investors. Integrity is the most important value in my life and the facts will show I never compromised this in any way.”
Ultimately, Tesla and Musk settled with the SEC with Musk agreeing to step down as chairman and Tesla and Musk having to each pay $20 million in penalties. Part of the settlement forced Musk to have his tweets reviewed by Tesla’s legal department if they were strongly related to the company. In February 2022, an attorney for Musk issued a letter to the SEC stating:
We write to alert the Court to a pattern of conduct by the Securities and Exchange Commission (the “SEC”) that has gone beyond the pale. Simply stated, the SEC has failed to comply with its promise to pay Tesla’s shareholders the $40 million it collected as part of the settlement in these cases and that it purports to be holding for them. Instead, it has been devoting its formidable resources to endless, unfounded investigations into Mr. Musk and Tesla. We are respectfully requesting that the Court schedule a conference to address why the SEC has failed to distribute these funds to shareholders but has chosen to spend its energy and resources investigating Mr. Musk’s and Tesla’s compliance with the consent decree by issuing subpoenas unilaterally, without Court approval.
The SEC denied it was harassing Musk and denied the request for a conference. Musk’s attorneys then filed a new motion saying Musk had settled with the SEC so Tesla could survive. Musk himself stated, “Funding was indeed secured. I should say I do not have respect for the SEC in that situation. I don’t mean to blame everyone at the SEC, but certainly the San Francisco office. The SEC knew that funding was secured. They pursued an active public investigation, nonetheless.”
This week, Musk told the audience at the TED Conference in Vancouver, “So I was forced to concede to the SEC unlawfully. Those bastards,” adding that he was concerned banks would stop offering capital. He snapped, “So that’s like having a gun to your child’s head. I was forced to admit that I lied to save Tesla’s life and that’s the only reason.”