Elon Musk’s worst enemy in court is Elon Musk

About five hours into Elon Musk’s testimony, I typed the following sentence into my notes: “I have never been more sympathetic to Sam Altman in my life.”

Elon Musk’s worst enemy in court is Elon Musk

It’s dangerous to tell a courtroom “I don’t lose my temper.”

Musk’s direct testimony was an improvement over yesterday — even if his lawyer kept asking leading questions to cue him in how to answer. But that memory was immediately obliterated by an absolutely miserable cross-examination. For hours, Musk refused to answer yes or no questions with yes or no, occasionally “forgot” things he’d testified to in the morning, and scolded defense lawyer William Savitt. I watched a few jury members glance at each other. During one testy exchange, one woman was rubbing her head.

Even the judge, who at times prompted Musk to answer “yes” or “no,” was having a bad time. “He was at times difficult,” said Yvonne Gonzalez Rogers after Musk after the jury left the room. “Part of management from my perspective is just to get through testimony.”

“I don’t yell at people,” Musk said

Musk spent a lot of yesterday painting this heroic picture of himself, and this morning, near the end of his direct examination, said, “I don’t lose my temper,” and “I don’t yell at people.” He said he might have called someone a “jackass,” but only in the spirit of saying something like, “don’t be a jackass.”

Immediately afterward, Savitt baited him into being petty, irritating, and generally hard to deal with. At one point, we all watched Musk lose his temper. He spent hours quibbling over simple questions. Again and again, Savitt referred back to Musk’s deposition, where he’d answered questions slightly differently, calling Musk’s accounts into question. Even if the average juror didn’t think he was lying, he was certainly inconsistent.

The Struggle for Control

Savitt’s cross-examination left the distinct impression that Musk quit his quarterly payments to OpenAI because he wasn’t going to get full control of the company, then tried to kneecap it and fold it into Tesla. Initially, Musk wanted four board seats and 51 percent of the shares. The other co-founders would get three seats, together, to be voted on by shareholders. Though Musk said that the eventual plan was to expand to 12 seats, it was obvious that Musk had full control on the initial board of seven.

When Musk didn’t get what he wanted, he pulled the plug on his funding commitment and hired Andrej Karpathy, OpenAI’s second-best engineer, to Tesla in 2017. Despite his fiduciary duty to OpenAI as a board member, he did not try to get Karpathy to stay at OpenAI when he said he heard Karpathy wanted to leave.

By 2018, Musk was saying that OpenAI had no path forward with its current structure, declaring it was on “a path of certain failure” in emails to Ilya Sutskever and Greg Brockman. His proposed solution was to merge Tesla and OpenAI. “In my and Andrej’s opinion, Tesla is the only path that could even hope to hold a candle to Google,” Musk said. The plan never came to fruition, and Musk resigned from OpenAI’s board that year.

Doubts about the Non-Profit Model

As early as 2016, Musk had own concerns about OpenAI as a non-profit. In an email to a colleague at Neuralink, he wrote “Deepmind is moving very fast. I am concerned that OpenAI is not on a path to catch up. Setting it up as non-profit might, in hindsight, have been the wrong move.”

Asked about this, Musk said he was just speculating. Savitt said, “Those are your words, yes or no?” Musk replied, “This is a hypothetical.” Savitt said, “So you thought it might have been a wrong move? That’s what you said?” Finally, Musk said yes.

Musk was trying to make this as painful as possible for Savitt, but he also made it as painful as possible for everyone else, including the jury. Watching him simply refuse to answer questions during cross he’d easily answered during direct was annoying. It made him look dishonest.

“I’d lost trust in Altman”

Musk’s basic story during this week’s testimony has been that OpenAI is “stealing a charity.” In direct testimony, he painted himself as a trusting “fool” who had believed the wily promises of Sam Altman: “I gave them $38 million of essentially free funding, which they used to create an $800 billion for-profit company,” he lamented.

On cross examination, Musk would barely even explain how much he bothered to learn about OpenAI’s operations before suing. When OpenAI proposed a for-profit arm around 2018, he got an email outlining the proposed structure. On the stand, he said he’d only read the very first section of it. Savitt pointed out that in his deposition, Musk said he didn't look closely at the term sheet. Musk, raising his voice and effectively undermining his claims that he doesn’t lose his temper, said, “I said I didn’t look closely! I read the headline!”