In January, on a flight to his Florida club Mar-a-Lago, President Trump mused about his $10 billion lawsuit against the I.R.S. \u201cI\u2019m supposed to work out a settlement with myself,\u201d he said.<\/p>\n
Mr. Trump is a tough negotiator, and, looking in the mirror, he faced an equally tenacious adversary. But the president managed to work out a deal<\/a> with himself on Monday, one as novel and brazen as the process that spawned it.<\/p>\n He dropped his lawsuit, extracting from his own government a promise to create a $1.8 billion fund to dole out to his political allies. A day later, in a curious addendum<\/a>, Todd Blanche, Mr. Trump\u2019s former lawyer and the acting attorney general, purported to immunize him from lawsuits arising from a great many things, not least his tax liabilities.<\/p>\n The government of the United States, Mr. Blanche wrote<\/a>, is \u201cforever barred and precluded\u201d from pursuing claims against Mr. Trump involving \u201clawfare and\/or weaponization\u201d or tax returns.<\/p>\n The whole enterprise was a jarring shock to the conventional understanding of the constitutional system, raising what legal experts said were profound questions about presidential power. If the arrangement is allowed to stand, they said, Mr. Trump will have managed simultaneously to thwart Congress\u2019s power of the purse and the ability of the courts to police the separation of powers.<\/p>\n Indeed, Tuesday\u2019s addendum flirted with a grave question<\/a> with no settled answer: Can the president pardon himself?<\/p>\n In 1974, shortly before President Richard M. Nixon resigned in disgrace for lawless conduct, Mary C. Lawton, the acting head of the Justice Department\u2019s Office of Legal Counsel, wrote in a brief legal opinion<\/a> that \u201cit would seem\u201d that Mr. Nixon could not pardon himself \u201cunder the fundamental rule that no one may be a judge in his own case.\u201d<\/p>\n That opinion has not been withdrawn or tested.<\/p>\n Mr. Trump seems determined to challenge that proposition. While the mechanism was more complicated than a formal self-pardon, the addendum being deemed lawful would have a strikingly similar effect, a declaration from the government that Mr. Trump would not be liable for his private actions.<\/p>\n Legal experts struggled to make sense of this week\u2019s developments, saying tentatively that it was unlikely anyone could sue to stop the moves.<\/p>\n \u201cIt is really difficult to think about how to frame a judicial challenge to what the president has done here,\u201d said Samuel R. Bagenstos, a law professor at the University of Michigan. \u201cThat doesn\u2019t mean people aren\u2019t trying, and that doesn\u2019t mean something might not succeed.\u201d<\/p>\n Legal challenges are indeed starting to roll in. Two police officers who defended the Capitol on Jan. 6, 2021, sued the Trump administration<\/a> on Wednesday in an attempt to block the new fund, though it is not clear that they have standing to challenge it.<\/p>\n Congress is another matter. It undoubtedly has the power to act.<\/p>\n The Constitution grants it control of the federal purse. \u201cNo money,\u201d it says, \u201cshall be drawn from the Treasury, but in consequence of appropriations made by law.\u201d<\/p>\n That clause, Justice Samuel A. Alito Jr. wrote in a 2024 dissent<\/a> in an unrelated case, \u201cimposes on Congress an important duty that it cannot sign away.\u201d<\/p>\n But Congress seems to have done essentially that in creating the Judgment Fund<\/a>, a permanent and uncapped appropriation to pay for court judgments and settlements reached in lawsuits filed against the federal government citing various statutes.<\/p>\n Until the middle of the 20th century, Congress had to enact piecemeal legislation to authorize payments for court awards against the federal government.<\/p>\n Got a news tip about the courts?\u00a0If you have information to share about the Supreme Court or other federal courts, please contact us.<\/p>\n To ease that burden, Congress created an early version of the Judgment Fund in 1956, authorizing automatic payments of court judgments of up to $100,000 without congressional action. Larger amounts would still require legislation. In 1961, Congress expanded the fund\u2019s scope to include settlements reached to resolve suits before judgment. And in 1978, it lifted the $100,000 cap, delegating to the executive branch the power to settle cases for any amount under a number of statutes.<\/p>\n Very few people had given the Judgment Fund much thought until this week, but legal experts had long warned that it was ripe for abuse.<\/p>\n \u201cThe integrity of the Judgment Fund is dependent on the good faith of executive branch officers,\u201d Paul F. Figley, a former Justice Department official who helped administer the fund from 1978 to 2006, wrote in 2015<\/a> in an article in The Journal of Constitutional Law. Its title was telling: \u201cThe Judgment Fund: America\u2019s Deepest Pocket and Its Susceptibility to Executive Branch Misuse.\u201d<\/p>\n \u201cIt serves a good purpose,\u201d Mr. Figley said in an interview this week. \u201cBut it\u2019s subject to manipulation.\u201d<\/p>\n Professor Bagenstos, who served as the general counsel of the Office of Management and Budget and of the Department of Health and Human Services in the Biden administration, wrote in January<\/a> about the danger posed by the Judgment Fund.<\/p>\n \u201cAn administration that wished to spend money on projects or beneficiaries not authorized by Congress,\u201d he wrote, \u201ccould simply encourage its desired recipient to bring a lawsuit against the United States and then settle that lawsuit (no matter how frivolous) by making a payment from the Judgment Fund.\u201d<\/p>\n While Congress has ceded power to the executive branch, it could also reclaim it. Indeed, Senator John Thune, Republican of South Dakota and the majority leader, said on Tuesday<\/a> that he expected lawmakers to scrutinize how the president\u2019s lawsuit had been ended.<\/p>\n Mr. Trump, along with his eldest sons and one of his businesses, filed suit in January against the Treasury Department, along with the I.R.S., an executive agency within the department. But the Treasury secretary \u201cis and must be the president\u2019s alter ego in the matters of that department,\u201d the Supreme Court said in 1926.<\/a> The president was suing himself.<\/p>\n A Justice Department news release on Monday said that the \u201cplaintiffs\u201d \u2014 that is, Mr. Trump and his family \u2014 \u201cwill receive a formal apology but no monetary payment or damages of any kind,\u201d a provision the White House used to defend the fund. Still, the opportunity to help direct payments approaching $2 billion to allies has value.<\/p>\n So does the elimination of the threat of an audit. In 2024, The New York Times reported<\/a> that Mr. Trump could face a tax liability of more than $100 million.<\/p>\n The deal was open to question for other reasons.<\/p>\n The I.R.S. had plenty of defenses<\/a> to Mr. Trump\u2019s suit. For instance, it might well have been barred by the statute of limitations.<\/p>\n Nor was it clear that the agency was liable for the acts of Charles Littlejohn, a former I.R.S. contractor who pleaded guilty to leaking Mr. Trump\u2019s tax information and whose actions Mr. Trump had cited as a reason he had been wronged by the government.<\/p>\n The sum Mr. Trump sought was also roughly equal<\/a> to the agency\u2019s annual budget.<\/p>\n And the suit was palpably collusive, ordinarily a reason for a judge to toss a case. <\/p>\n Tuesday\u2019s addendum to the settlement, the codicil purporting to immunize Mr. Trump and his family, raised its own legal questions.<\/p>\n \u201cIt\u2019s a really extreme and shocking kind of document,\u201d Professor Bagenstos said.<\/p>\n Even under the Supreme Court\u2019s 2024 decision<\/a> conferring broad immunity on Mr. Trump for his official acts, purely private conduct, as the filing of a tax return would seem to be, is fair game for prosecution after a president becomes a private citizen. It is not clear whether the addendum could block a future administration from pursuing such a claim.<\/p>\n A series of settlements by the Obama administration that involved dipping into the same fund Mr. Trump now wishes to use illustrate the dynamics of Congress\u2019s open-ended delegation.<\/p>\n