Drugs and Misprision: Covering up Crimes is (sometimes) a Crime
A serious evaluation of Musk and the NYT
While there has been a great deal of ‘OMG!’ and also “We told you so.” regarding the NYT article about Musk’s drug use we have to take it seriously.
To recap, according to the article:
Elon Musk regularly made frequent off-label (and likely un-presecribed) use of Ketamine.
Elon Musk regularly consumed MDMA (Ecstasy) and Psilocybin (Magic Mushrooms) while working on the Trump Campaign and in the Trump Administration (a “special government employee is still an employee).
Elon Musk carried these things with him when he travelled across state lines and across national borders.
Long-term Campaign and Administration staffers knew about it for months.
Drugs
According to the Drug Enforcement Agency MDMA is classified as a Schedule 1 Controlled Substance like Fentanyl which means it has no accepted medical uses.1 As a consequence posession of the drug and transportation is a felony both at both the federal and state level.2 Per TSA Rules MDMA is illegal to bring across the border (much like Fentanyl).3
Psilocybin Mushrooms (magic mushrooms) are also classified as a Schedule 1 Controlled Substance which would give it similar pentalties for posession, transportation, and distribution.4
Ketamine is classified as a Schedule III Controlled Substance. To quote from a relevant article:
US physicians cannot authorise more than five refills of ketamine per prescription. When ketamine tablets are distributed by prescription, the medication bottle must state that it is a crime to distribute ketamine to others. Individuals convicted of illicit possession of ketamine are subject to imprisonment and/or large fines. Other countries have also rescheduled ketamine to exert tighter control due to its abuse liability and other harmful consequences.
— “Is Off-label repeat prescription of ketamine as a rapid antidepressant safe? Controversies, ethical concerns, and legal implications” Zhang, Harris & Ho5 (emphasis mine)
Rules
As stated in Executive Order 12564 — “Drug-free Federal Workplace” authored by President Ronald Regan:
(a) Federal employees are required to refrain from the use of illegal drugs.
(b) The use of illegal drugs by Federal employees, whether on duty or off duty, is contrary to the efficiency of the service.
(c) Persons who use illegal drugs are not suitable for Federal employment.
Under federal law Failure to report a felony offence (misprision of a felony) may be a criminal offense if the felony occurred, the defendant knew of it, failed to inform the authorities, and took some active step to help conceal the crime.6 The exact question of whether it is a crime depend on the circumstances.
Conclusion
I am not a lawyer still less a prosecutor. However if the NYT story is true then it would suggest that Musk may have comitted one or more felony offenses including the use and transportation of controlled substances and that people around him on the campaign and in the White House may also have comitted some offenses by facilitating, participating in, or concealing illegal drug use. It would also suggest that he, and they, are in violation of at least one standing executive order. While AG Bondi may choose not to prosecute under Bove’s Rule the fact is that this raises serious questions about the conduct of Mr. Musk and White House Staff including cabinet officals who worked and traveled with him.
This could be clarified by testimony under oath by cabinet officials or other means. But in the absence of a serious investigation by the Attorney General or better yet an independent agency or Congress itself. In the absence of such an investigation we are left with likely evidence of multiple crimes.
Addendum: Don Moynihan and Daniel W. Drezner have excellent pieces on the impact of Musk’s work on government, and the clear implications for Musk himself. Both are well worth the read.
And as always Charlie Sykes gets right to the point:
But the drugs are only part of the story. I am, of course, not a medical doctor, but the technical term for Musk’s condition, I believe is: “Deeply Fuqqed Up Syndrome.”
DEA Drug Fact Sheet Extasy/MDMA https://www.dea.gov/sites/default/files/2020-06/Ecstasy-MDMA-2020_0.pdf
Criminal Defense Lawyer.com “Extasy Laws” https://www.criminaldefenselawyer.com/drug-possession-and-use/Ecstasy-mdma-pills-laws.htm
ChesterTravels.com “Facts about Bringing Molly on a Plane” (the actual title) https://chestertravels.com/molly-on-a-plane/#TSA_Rules_For_Flying_With_Molly
DEA Psilocybin fact sheet https://www.dea.gov/sites/default/files/2025-01/Psilocybin-Drug-Fact-Sheet.pdf
Zhang MW, Harris KM, Ho RC. Is off-label repeat prescription of ketamine as a rapid antidepressant safe? Controversies, ethical concerns, and legal implications. BMC Med Ethics. 2016 Jan 14;17:4. doi: 10.1186/s12910-016-0087-3. PMID: 26768892; PMCID: PMC4714497.
Criminal Defense Lawyer.com “Misprision of Felony”
https://www.criminaldefenselawyer.com/resources/misprision-felony.htm