Trump’s $1.8 Billion Fund in the Cross Hairs

Hello! The big legal news this week was the deal President Trump struck with his own subordinates to create an “anti-weaponization fund,” which would allow him to dole out $1.8 billion of taxpayers’ money to allies and supporters, presumably including those who attacked the Capitol on Jan. 6, 2021.

Critics called this a “slush fund,” which is, when you think about it, an odd phrase. I looked into its origins, which turn out to be nautical. Slush is what cooks on ships called the grease and fat left over from cooking meat.

A large frigate could produce 15 or 20 barrels of slush in a year, The Daily National Intelligencer, a Washington newspaper, reported in 1852.

Ships’ crew sold slush to candle makers and others, using the money for small comforts to help pass the time at sea like books and musical instruments. They called this off-the-books account a “slush fund.”

On dry land, the term has taken on negative connotations. A slush fund is ordinarily understood to mean a supply of unregulated money of dubious origin used in secret to achieve illicit goals.

Sam Bagenstos, a law professor at the University of Michigan, surveyed the history of the term in “‘Slush Funds’ and Congress’s Power of the Purse,” which will be published in The U.C. Davis Law Review. He said the term had a specialized meaning in the context of congressional appropriations.

“People tend to use the term,” he wrote, “to refer to financing mechanisms that enable the executive branch to evade the usual congressional checks on spending.”

That is what critics say Trump did this week in making a deal with his own Justice Department.

Trump had sued the Internal Revenue Service for $10 billion over what he said was its failure to protect the confidentiality of his tax returns, which were leaked by a former I.R.S. contractor in Trump’s first term. After a judge questioned whether the parties to the suit were actual adversaries, Trump dropped his case.

But the short-lived litigation allowed the parties to announce what they called a “settlement.” It had several curious elements, none of which seemed to follow from the supposed harm to Trump’s privacy resulting from the leak that was the basis of his suit.

The deal called for the creation of a $1.8 billion fund to pay people said to have been the victims of “weaponization” of the Justice Department. The connection to leaked tax data was not obvious.

In an addendum to the deal, Todd Blanche, Trump’s former personal lawyer and the current acting attorney general, purported to grant his boss perpetual immunity from any liability for claims arising from his tax filings. Here, too, the link between what Trump had sued over and the benefit he seeks to obtain is not self-evident.

I explored other aspects of the deal in a news analysis. My colleagues had a lot more to say about the arrangement:

Two police officers who defended the Capitol on Jan. 6 filed a lawsuit accusing the administration of creating, yes, a slush fund to reward rioters and groups that committed violence on behalf of Trump.
Rioters themselves were elated by the prospect of a payout from the fund.
Blanche defended the deal at a congressional hearing.
Lawyers at the I.R.S. were ready to fight Trump’s suit and prepared a 25-page memo contesting his legal arguments.
The New York Times’s editorial board weighed in. “Has there ever been an episode of presidential corruption so blatant and threatening to constitutional order?” an editorial said. “Certainly not in modern times.”

Mailbag

The ‘Purcell Principle’: A Shadow Doctrine

This question concerned the Supreme Court’s ruling last month in Louisiana v. Callais, which curtailed the Voting Rights Act’s protection of minority voting power and led several states to try to redraw their voting maps:

Given all the frenzied gerrymandering that is happening now in order to have new maps in place for the 2026 midterms, whatever happened to the Purcell principle that the Supreme Court uses to prevent new maps just before an election so as not to confuse voters? — Ira D. Blecker

In 2006, the Supreme Court issued an unsigned opinion on what critics call its shadow docket. It was called Purcell v. Gonzalez, and it gave rise to the “Purcell principle,” a phrase coined by Rick Hasen, now a law professor at the University of California, Los Angeles.

“The Purcell principle,” he wrote, is “the idea that courts should not issue orders which change election rules in the period just before the election.”

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The ruling itself was unsigned, cryptic, tentative and equivocal. That has been true of many emergency orders issued by the court in recent years. This one gave rise to what Nick Stephanopoulos, a law professor at Harvard, has called a “shadow doctrine.”

The Purcell case concerned an Arizona voter ID law. A trial judge refused to block it, but, about a month before the 2006 general election, the U.S. Court of Appeals for the Ninth Circuit issued an injunction forbidding state officials to enforce it.

The Supreme Court, saying the election was “just weeks” away, let voting proceed with the voter ID law in force.

“Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls,” the opinion said. “As an election draws closer, that risk will increase.”

In an unsigned 2020 opinion, the Supreme Court said that Purcell meant that “lower federal courts should ordinarily not alter the election rules on the eve of an election.”

The justices have sometimes taken a flexible view about what amounts to the eve of an election. In December, they lifted a lower court’s ruling that had blocked Texas’ new voting map although Election Day was 11 months away. In dissent, Justice Elena Kagan wrote that “the majority invokes (though without naming) the so-called Purcell principle.”

But the court took a different approach in the aftermath of the Callais decision, notably in Louisiana, where the justices took actions that allowed the rules to be altered in a primary election already underway.

Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, called those developments problematic in an essay posted on Tuesday on Scotusblog.

“It should be deeply troubling that the same justices who created and extended the Purcell principle,” he wrote, “paid no attention to it whatsoever in handing down a ruling that will dramatically change the conduct of elections that are ongoing.”

I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].

What I’m Reading

“First Amendment Inversion,” by Nelson Tebbe, a law professor at Cornell, explores the shifting positions of conservatives and liberals on free speech issues in The Texas Law Review.
“Trump v. Barbara: Temporal Territorial Bubbles,” by Joseph J. Donahue, who proposes a new way of looking at birthright citizenship, one centered on time.
A new survey of judges, lawyers and law professors from Bright Line Watch, a group that monitors the status of American democracy, and the Safeguarding Democracy Project at U.C.L.A. Law found “a significant erosion of the rule of law since Trump returned to office, including politicized law enforcement, a dysfunctional separation of powers and executive-branch overreach.”

Closing Argument

Are the Justices’ Papers Public Property?

You can tell the Trump administration is about to lose a case when a judge opens his decision with a quotation from George Orwell.

“Who controls the past controls the future; who controls the present controls the past,” Orwell wrote in his novel “1984.”

It was an apt start to an opinion from Judge John Bates on Wednesday rejecting a Justice Department memo declaring the Presidential Records Act unconstitutional. The act requires the executive branch to preserve materials related to the official responsibilities of the president, and it is based on the premise that presidential papers are government property.

The 52-page memo, from the Justice Department’s Office of Legal Counsel, contested that premise, noting that “over the first two centuries of the American experiment in self-government, presidents owned and controlled presidential papers.”

But the memo’s killer point, featured on its first page and addressed to the body that will probably make the final decision on the status of presidential papers, was this: “Just as Congress could not constitutionally invade the independence of the Supreme Court and expropriate the papers of the chief justice or associate justices, Congress cannot invade the independence of the president and expropriate the papers of the chief executive.”

The justices certainly maintain that their papers are their private property, and they make elaborate arrangements to keep them from public view, generally long after their retirements and deaths. But if Congress can say presidential papers are public property, it may follow that it could say the same thing about the justices’ papers.

Judge Bates did not seem eager to address this argument, relegating it to a footnote on the 40th page of his 54-page decision.

“The government has suggested that if Congress has the enumerated power to pass a law regulating presidential records, it could also pass a law regulating Supreme Court records,” he wrote. “Perhaps. But that issue is not before the court today.”

He added that the two situations may be different.

“In the judicial context, courts would have to consider implications of a disclosure provision based on the life tenure of federal judges, the multimember nature of the Supreme Court and the potential impact of disclosure on due process,” Judge Bates wrote. “And, of course, the fact that Congress might pass other, unrelated legislation to regulate government records in the future does not bear on its power to pass the law at issue here.”

Adam Liptak is the chief legal affairs correspondent of The Times and the host of The Docket, a newsletter on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.

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