The situation has gone from bizarre to serious. This isn't a case of Musk's calling one of the Thai cave rescuers a pedophile or of an apology to analysts on one earnings call after rudely dismissing them on a previous one, which resulted in a $5 billion value bump.
This time, Musk's uncontrolled utterances put himself and the board into potential jeopardy and likely mean ugly times ahead for company investors.
The position of a CEO demands a degree of decorum, at least. Preferably probity, particularly at a public company. To accept investment from the public and sell shares, a company must comply with rigorous regulatory demands that exist to ensure a fair market. Corporate officers can't say things to manipulate share prices, even if unintentionally.
Tesla has a devoted following among individual investors because of Musk. If he tweets something positive about Tesla or SpaceX, Tesla's stock increases in value on average, according to new research. Musk is Tesla's best PR tool.
And if Tesla were a private company, that would be fine. Only it's not, and Musk's statements have been staggeringly risky. Not that risky behavior is alien to Musk, as he has said Tesla and SpaceX had only a 10 percent chance of success when they started.
Taking a risk yourself is one thing. Putting others into it is different. Musk had said the funding was secured to go private. However, since then he said that someone with Saudi Arabia's sovereign investment fund "strongly expressed his support for funding a going-private transaction."
That isn't even close to having secured financing. How many times have you heard people voice support for an idea in business when they have no intention of following through? Or when one person likes a deal but others in the organization don't?
Calling this secured funding is wishful thinking, and Musk should know better. The law will expect that he did. Former SEC chairman and current CEO of consulting firm Kalorama Partners Harvey Pitt told CNBC, "If you make a false statement in connection with the trading of securities, you run the risk of having to pay for the damages you caused and also you run the risk of a criminal prosecution."
If investors make decisions based on the information and suddenly find they've lost money because the statements weren't accurate, they may have grounds for a lawsuit. And while the government doesn't regularly prosecute CEOs, it can in the right circumstances. Just ask Martin Shkreli.
Notice that Pitt didn't say someone had to lie deliberately or intend to manipulate markets, only that a statement was deemed false.
The situation raises some uncomfortable speculation. Accomplished journalist and lawyer James B. Stewart asked about Musk a devastating question: "What was Mr. Musk's state of mind when he wrote it?" The question for the board, as Charles Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware, told Stewart, is "What does this say about the judgment of the person who set all this in motion?"
In other words, is it safe to keep Musk on the management team?
Even if the SEC decides to take no further action -- declines to start a formal investigation past the subpoena stage -- the seat-of-the-pants process as it has occurred will make it difficult for financial and legal advisors to do their job if the company really does go private.
And for those who think all of this is normal business, as a number insisted to me when news of Tesla's desire for retroactive supplier discounts came out, it wasn't then and isn't now. This is as far from normal management and business as you can get.
Forget legal actions. Forget going private. Companies that might have otherwise done business with Tesla, companies that might be necessary to Tesla's success, could decide now the company is too flaky to deal with. Banks and other financial services will have to think twice before doing business with it, because they depend on predictability.
Not good for a company that, in its second quarter 10-Q, had a total of $2.95 billion in cash (including restricted cash and assuming full possible conversion of net accounts receivable) and current liabilities topping $9 billion. Tesla needs money.
Musk is an asset in some ways, but he's raised the question of whether these days he's more of a liability.