DOGE: Transparency vs Secrecy; Thieftaking vs Investigation

Abstract: Is DOGE a thief, a thieftaker (modern usage: bounty hunter) or a diversion? With all the contradictory reports and poor information, it is hard to tell what they are. Both judicial review and thieftaking are rooted in English Common Law, but those that use judicial review are loath to employ thieftaking. To make matters even more complex and muddled, DOGE has not taken a single thief yet, but stories abound about Musk companies getting sweetheart deals. What is the truth? Few know for sure since most of DOGE’s work is done behind shuttered windows with maybe a few slats left open to tantalize the populace. We need open windows and actionable information.

If reports are true, the DOGE team went into the Treasury Department at the dead of night—2:00 AM and ran agents through Treasury systems to collect data. Were they a thief or a thieftaker? Depending on which media source you use, they could be either.

Britanica says this of thief takers:

“[government official/police] often resorting to hiring “thieftakers.” These precursors to modern bounty hunters were private citizens who, for a fee or a reward, attempted to identify wrongdoers and to return stolen property to its rightful owners.”

A modern term for thieftaker is a bounty hunter. The term “thieftaker” seems to fit DOGE well. They—at least Elon Musk—are not government employees or officials and one stated goal is to find fraud—thieves. The question then is three-fold:

• Why are they operating at night and in secret?
• Why do we need thief takers in 2025?
• Is there a provision for thief takers in American law?

Looking at the bottom question first, American law is largely based on English Common Law. Parts of our legal approach are clearly based on English Common Law. The biggest example is judicial review. There is nothing in the Constitution that provides for this practice. John Marshall drew on some aspects of English Common Law in Marbury v Madison to create it.

So, the people that want to invoke judicial review under English Common Law are the same people that want to restrict English Common Law for thieftakers. Seems like a double-edged sword.

Now for the middle question: why do we need thieftakers today? Broadly speaking, there are four possible answers.

• We do not need thieftakers today. Our current systems and law enforcement can do the task. DOGE is smoke and mirrors to divert attention from something else.
• While we have systems and personnel, they cannot be trusted. We need an outsider to gather and analyze information. The number of millionaires in Congress seems to show some corruption and the scandals with the FBI, Secret Service and now Social Security, FEMA and USAID seem to show their inspector generals were not up to the task.
• Our current systems and personnel are not sufficient for the task. The lack of coding on the treasury payment system seems to show the systems do not have adequate controls and the number of potential fraud findings seem to show that at least some in the bureaucracy and Congress are like the cat burglars in the opening figure.
• We need to move fast to gather evidence before perpetrators can hide and/or remove it.

Now let us look at the first question: why the secrecy and opaqueness? The most likely reason is DOGE was worried about interference if they did their bot launch during normal business hours. The batch of lawsuits over their work and findings lends credence to the idea. The other potential answer is DOGE wanted to work in secrecy. But the publicity undermines this argument.

One potential problem with DOGE as a modern thieftaker is thieftakers normally did not need to investigate and find crime. The thieftaker went after known criminals to apprehend them. Allowing untrained thieftakers into our systems can compromise investigations and hinder prosecution. But we do not know this for sure, since the thieftakers have not taken a thief and, to the best of my knowledge, there are no current prosecutions. Perhaps prosecutors are working cases, but we do not know.

This is why transparency and objectivity are so important. That is the point behind the windows in the opening figure. The left-hand window is fully open and provides the most transparency. This is particularly true when the lights are on in the building. The middle window has the shutters closed, but the slats are open, providing some obstructed visibility. The right-hand window has the shutters and slats completely closed, providing no visibility.

Now, let us turn back to the fee the thieftaker earns for his services. If DOGE, especially Elon Musk, is a thieftaker, how what does he earn as his fee? The less transparency “We the People” have over DOGE’s work, the more important this question becomes. For example, Facebook is rife with claims that Musk’s companies are benefiting from the issues the team finds. The latest report is the government will move a $2.6B contract from Verizon to Starlink a Musk company. Now this may be appropriate and legitimate, but the lack of transparency lends credence to the claims of cronyism.

We need sunshine and open discussions about DOGE and what they are doing. Right now, they are not even thieftakers working in dark rooms with little transparency. This undermines public confidence and provides plenty of room for doubt and criticism. And to the best of my knowledge, they have not taken a thief yet.