I promise you, Elon legitimately thought there would be an opportunity to go private again. He's said he wanted to do so in the past, and even has said they never wanted to go public, but were left with no choice. I don't think any part of Elon was trying to commit fraud or security manipulation. He made a mistake, we all do. He said something that should not have been said at that given point of time. I'm sure he was excited. He even said he typed that tweet in the car after leaving SpaceX.
Should he be fined? That is up to the SEC. Will I and many other investor lose trust in what Elon's mission is? Absolutely not.
That's cool and all. And that's probably why the DoJ case will fail (at least, I'm betting that the DoJ case will turn up nothing).
But this is the SEC: they only have to prove recklessness or negligence. That Musk was NEGLIGENT in his ability to properly vet the information before tweeting.
In particular:
> Musk knew or was reckless in not knowing that each of these statements was false and/or misleading because he did not have an adequate basis in fact for his assertions.
https://www.scribd.com/document/389617063/United-States-Secu...
As a CEO, his responsibility is to report on the news of the company to his investors in a responsible manner. If Musk is negligent and/or reckless about the facts, then that is ALONE sufficient to have him removed from the position.
That's the thing about this SEC case. They do not have to prove scienter (criminal knowledge of wrongdoing) or malice. They only have to prove recklessness or negligence.
EDIT: Upon further review, paragraph 79 claims that Elon Musk has scienter of these events. So the SEC is in fact claiming that Elon Musk deliberately knew that making these statements were wrong, and did it anyway. This is above and beyond "reckless" or "negligent" !!
I mean, I might be proven wrong. But... showing off a couple of rage tweets in court to prove malice doesn't seem plausible to me. Would a Jury of 12 (and remember: all 12 have to agree) be convinced over a couple of "who likes short-shorts" tweets?
If a SINGLE jury member, 1 out of the 12, disagrees, then you get a hung case aka a mistrial. As per the rules of the DoJ investigation anyway. That's why I don't think the DoJ will go anywhere, because proof and evidence is at a way harder standard in a criminal case.
I mean, insiders and the SEC clearly know he didn't have an offer to go private on the table when he announced. With Musk's pattern of behavior on twitter recently (pedophile name-calling, weed gifs, etc.) it's much more likely that he was reacting to the short sellers that got under his skin, rather than making a calm, confident announcement of acquisition as you say. When Musk's team finally scrambled together an offer after the announcement, Musk rejected it outright because he was paranoid about Volkswagen [1], a manufacturer that would have helped solve Tesla's scaling problems.
There's always going to be short sellers. There are not always going to be CEOs who let them get under their skin or let hubris in the way of business.
This is clearly your opinion..
This is the Musk apologizing I'm talking about.
According to the hard facts the SEC is presenting this is patently false, there was absolutely no reason for Musk to "legitimately" think that.
> even has said they never wanted to go public, but were left with no choice.
Also just not even close to true. Elon would have been canned and Tesla would have been bankrupt by now if they didn't go public. If by "left with no choice" means "structured the company so that only a public IPO could sustain it and allow for the path he wanted" then I guess you're right?
See: https://www.bloomberg.com/view/articles/2018-08-17/elon-musk...
Until that changes, investors will overlook a lot.
I also take the long view; Elon is instrumental to the long-term outcome for Tesla, our species, and our planet.
Unless we make him President. Don't make him President.