The Philly DA’s suit against Elon Musk’s $1 million giveaway lacked proof and made ‘unpersuasive’ arguments, judge says

District Attorney Larry Krasner’s election-related lawsuit against Elon Musk — in which Philadelphia’s top prosecutor accused the tech billionaire of running an illegal lottery by giving money to Pennsylvania voters — failed to establish proof that the contest met even the most basic definition of a lottery, the judge overseeing the case said.

Common Pleas Court Judge Angelo Foglietta, who last week rejected Krasner’s request for an injunction against Musk and his America PAC, wrote in an opinion filed late Tuesday that Krasner and his attorneys offered little evidence and made “unpersuasive” arguments in their attempt to have Musk’s daily $1 million giveaway barred from operating in the state.

Although Krasner accused Musk of misleading contest entrants by suggesting that anyone had a chance to win, Foglietta said, PAC officials provided documents and “credible testimony” to show that winners were actually chosen through a multistep vetting process — and then expected to serve as spokespersons for the PAC, making them de facto employees.

Moreover, the DA presented no witnesses to support the notion that entrants felt duped, Foglietta said, and he ignored or downplayed portions of Musk’s comments explaining that winners would need to speak on behalf of the PAC, which was established to promote the candidacy of Republican nominee Donald Trump, now the president-elect.

In addition, the judge said, contest entrants did not pay to enter the sweepstakes, as is the case in a typical lottery. And although Krasner asserted that the contest was a scam similar to those in other fraud probes his office had conducted, Foglietta said, the DA made that statement “without detailing the facts of those other investigations or how they were similar to the facts of this case.”

“Although [Krasner] alleges that America PAC and Elon Musk ‘scammed’ people,” Foglietta wrote, “… DA Krasner failed to provide any evidence of misuse beyond mere speculation.”

Krasner, in a statement Wednesday, said: “We respectfully disagree with the Judge’s opinion in this matter.”

Then, in an apparent reference to proposed class-action suits filed against Musk and his PAC in other states, he added: “We note that there is litigation on this issue in other jurisdictions. Stay tuned.” He did not comment further.

Foglietta’s reasoning appears to end, at least for now, the legal proceedings between Krasner and Musk, whose wealth and proximity to power have only grown since Trump won the election last week. Trump said Tuesday night that once he is sworn into office, Musk would cochair a new committee to reduce government spending.

Krasner, a Democrat, sued Musk and his PAC last month, saying they were violating state lottery and consumer protection laws by distributing cash to registered voters in Pennsylvania and other battleground states ahead of the presidential election.

To enter the $1 million daily sweepstakes, residents — who were required to be registered voters — had to sign a petition organized by the PAC affirming their support for free speech and the right to bear arms.

Musk said he hoped the giveaways would drive up Republican voter registration numbers. But several election-law experts — and the Justice Department — warned that the contest appeared to violate federal laws banning giving money or other things of value in exchange for votes or registering to vote.

Still, Krasner’s lawsuit was the first legal action taken against the sweepstakes. And it took a different approach, targeting Musk under state laws that prohibit anyone but the state from running a lottery in Pennsylvania. He also accused the PAC of failing to provide information on how it was protecting the personal information of entrants.

But on Nov. 4, after a daylong hearing in City Hall, Foglietta rejected Krasner’s bid for an injunction to stop the contest from operating in Pennsylvania before the election.

And in his opinion Tuesday, the judge said the timing of Krasner’s request represented another fatal flaw.

By the time the case was heard in court, Foglietta said, the PAC’s sweepstakes had only one day to go before it would shut down — and the only remaining winner at the time was a registered voter in Michigan.

An injunction, therefore, would not have prevented any future payouts in Pennsylvania, the judge said.

Krasner’s attorneys said that did not preclude the need for a legal ruling against the contest.

Foglietta disagreed.

“This Court is not here to enter superfluous orders,” he wrote.