Trump fund is a joke. Where's Congress?
By: Andrew P, Napoltano
Columnist
..... President Donald Trump announced that he plans to give away tax dollars without congressional or judicial authorization to his friends and allies who he believes were mistreated by the Biden administration. Can he legally do that?
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Here is the backstory.
..... During the last year of his first term in office, Trump;s tax returns were stolen along with those of 425,000 others by an IRS employee who leaked Trump's to media outlets. The acts of stealing and leaking were, of course, criminal, and the now-former IRS employee who pleated guilty to theft of government documents served nearly four years in federal prison.
..... But the publication of the returns was protected under the Supreme Court's Pentagon Papers case. IN that case, Daniel Ellsberg famously stole documents form the Department of Defense, where he was a civilian employee.
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when word got out that he had delivered about 7,000 pages to The New York Times and Washington Post, the Nixon Department of Justice field complaints in to federal courts and obtained restraints on both newspapers, preventing publication. The stolen documents revealed that American generals had been misleading President Lyndon B. Johnson about success in the Vietnam War, and LBJ had been misleading the public.
..... The Supreme Court bypassed two intermediate appellate courts and accepted appeals directly from the trial courts' decision that imposed the injunctions.
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After a very short briefing schedule and a memorable oral argument, the court ruled that while the thief who stole the secrets can be prosecuted, media outlets that publish even stolen mutterers that are material to the public interest may do so without criminal prosecution or civil liability. This was the high-water mark for press freedom in America.
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When various publications and websites published Trump;s tax returns, his lawyers persuaded him that the Pentagon Papers case was so well-settled that he shouldn't bother suing anyone in the media, and the thief, by then sitting in a federal prison, was effectively judgment-proof.
..... So Trump waited until after he returned to the White House to sue the IRS for permitting the theft. Surely, a private citizen who has been harmed by grossly negligent government behavior should have a cause of action against the government.
..... But how about the president suing the IRS, which works for him? And how can the IRS be represented by the Department of Justice, which also works for the president? And how can the acting attorney general, who is Trump's former criminal defense lawyer, permit the DOJ he supervises to be adverse to the president, who is the self federal law enforcement officer in the land?
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Well, the case gets curiouser and curiouser, as early in the week, [05/19/2026] Trump and DOJ announced that they had "settled" his case, against the IRS by using DOJ funds - appropriated to pay judgments giantess the United States - to establish a $1.8 billion fund to distribute cash at Trump;s discretion to persons he believes were aggrieved by their treatment at the hands of the Biden DOJ.
Is this the constitutional crisis that could topple Trump?
..... This entire litigation and tits resolution implicate serious constitutional issues that the acting attorney general and Trump wish would go away.
..... First is the Constitution's Case or controversy Clause, which requires that federal courts may hear only real disputes, with real adversity between the parties - a level of conflict that is nonexistent here. One of the purposes of the clause is to prevent the sue of federal courts to facilitate the very type of collusion between the parties that is paramount in this case.
..... How can Trump be both the plaintiff and the legal superior of the defendant? He cannot. That's why this case never reached a federal judge for disproportion. had it done so,, the judge would have shelved it - dismissal without prejudice ins the proper mechanism - until Trump is out of office.
..... The second constitutional impediment is equally as troublesome. The Constitution's Appropriations Clause requires that no money shall be drawn from the Treasury except that which has been appropriated by the Congress and spent as Congress directed. The scheme concocted by Trump and his own IRS and his won DOJ was never presented to Congress. nor did Congress appropriate these funds for this purpose.
..... The scheme is probably not front page news, but it does involve nearly two billion taxpayer dollars and it is another example of the government's cavalier indifference to constitutional norms.
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This is not to argue that Trump has no case against the IRS, rather that the case cannot be litigated while he is in the White House. and it cannot be resolved in a way that substantially burdens he taxpayers without congressional or judicial approval.
Where is Congress?
..... In the post-World War II era, Congress has happily loomed the other way while presidents encroached on its powers and privileges, hoping for a politically popular outcome, but dismissive of its constitutional obligations.
..... While Congress and the presidency are equal branches of government, Congress is the first among equals. This is not a question of were. It is a question of will.
..... Congress is he preeminent branch. It can remove jurisdiction from the Supreme Court and it can remove a president from office. The Constitution;s drafters contemplated a Congress jealous of the encroachment upon its powers.
..... Why let a president kill boat people without any due process?
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Why let a president stat a war when the Constitution clearly reposes that authority in Congress?
..... Why let the president impose and collect sales taxes on products and services originating in foreign countries when the Constitution makes clear that only Congress can do that?
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And now this: why let the president under the guess of settling a lawsuit with no adversity between the parties, and with no judicial oversight or approval, take tax dollars and give them to his political allies?
..... These dangerous times are made worse by a supine Congress and a constitutionally indifferent president. the Constitution cannot enforce itself. What part of it will the president evade and Congress overlook next.
..... Andrew P. Napolitano, a former New Jersey Superior Court judge, has published nine books on the U.S. constitution. To learn more, visit JudgeNap.com