Almost nothing has upset senators as much as President Donald Trump’s nearly $1.8 billion payout fund that aims to compensate those who say the Justice Department wrongfully targeted them.
More than a dozen Republican senators have privately asked the White House to get rid of the fund, the Wall Street Journal reported Friday.
And even as a federal judge in Virginia temporarily blocks the Justice Department’s plans, the fund has sparked such a strong backlash from GOP lawmakers that it stalled efforts to advance a budget package largely aimed at funding immigration enforcement agencies.
Lawmakers have raised concerns about who could benefit from the fund, especially those who took part in the U.S. Capitol assault on Jan. 6, 2021. Controversy around the payout fund threatens to add even more political risks for Republican lawmakers heading into the midterm elections.
Even so, Congress has broad authority to act on the fund regardless of the ongoing litigation. As the Senate returns from the Memorial Day recess on Monday, several proposals have been floated, but Republicans are waiting for the Trump administration to weigh in.
Here’s what you need to know about Congress’s power and political will to restrict the fund.
Catch me up: What is the payout fund?
Trump’s nearly $1.8 billion “anti-weaponization fund” would draw from the federal government’s Judgment Fund, a permanent appropriation that the Justice Department uses to pay court judgments and legal settlements against the United States. Trump agreed to drop a $10 billion lawsuit against the IRS over the leak of tax returns in exchange for creating the $1.776 billion pool of money.
The Judgment Fund was created by Congress in 1956 to allow certain legal claims against the government to be paid automatically, without requiring Congress to vote each time. In 1977, Congress eliminated a $100,000 cap on payments from the fund and expanded the range of payments that could be issued.
On Friday, a federal judge reopened Trump’s $10 billion lawsuit against the IRS. The judge ordered lawyers for Trump and his family to respond to “grievous allegations” that the deal amounted to an act of fraud, casting new uncertainty over the fund’s future.
How did Republicans react?
The announcement of the payout fund emerged just as Senate Republicans were finalizing a budget package to fund immigration enforcement agencies. Passing the bill before the Memorial Day recess had been a priority after Trump asked lawmakers to send it to his desk by June 1.
Several Republicans balked at the fund. When acting attorney general Todd Blanche met with Senate Republicans, more than 20 senators voiced concerns during the meeting, according to a Senate GOP aide. Plans to vote on the budget package were ultimately scrapped. Senators left for recess without taking action.
Their biggest concerns were over who could benefit from the taxpayer money. People who have pleaded guilty to violent crimes against law enforcement could benefit, said Sen. Thom Tillis (R-North Carolina). “How absurd does that sound coming out of my mouth?”
What can Congress do?
At the center of the fight is a core constitutional issue: Congress holds “power of the purse.”
Legal experts say lawmakers have wide reach to restrict or eliminate the Justice Department’s anti-weaponization fund. Though, it all depends on how they do it.
Congress could block the fund outright, said Paul Figley, a law professor at American University and a former Justice Department attorney. Lawmakers can also take a more limited approach, including barring payments to people convicted of certain crimes.
Congress could also exclude individuals who have engaged in insurrection against the U.S. from receiving payments, said Samuel Bagenstos, a law professor at the University of Michigan and a Justice Department appointee during the Obama administration.
Congress could also reimpose caps on payments from the Judgment Fund or restrict the ability to distribute money through the separate commission that is being created to oversee the fund, said Duncan Hosie, an academic fellow at Stanford Law School’s Constitutional Law Center. He added that Congress could also require the funds only cover settlements that have been approved by a federal judge.
What can’t Congress do?
While Congress has broad constitutional authority, targeting specific groups to limit their access to the fund could be problematic, according to Zachary Price, a law professor at UC Law San Francisco and a former Justice Department attorney. Under the Constitution, Congress is banned from passing targeted laws that punish people without a trial by the so-called bill of attainder clause. That could prevent Congress from imposing punishment on the Jan. 6 defendants, or any identifiable group. Still, Price said, Congress could create broader eligibility limits in a way that would probably be more legal.
What is likely to happen when lawmakers return?
Senate Republicans are waiting for the Trump administration to weigh in about putting guardrails in place on the fund, though that has not happened yet, according to a Senate GOP aide, who was not authorized to speak about internal deliberations.
Senators are talking about a range of options from ending the fund altogether to putting clear guidelines in place on who can receive payments, the aide said, which was also confirmed by another Senate staffer.
If Trump does not relent, senators are likely to attach measures to restrict the fund to the budget package they are still considering, which Trump has called a priority, making it harder for him to veto the measure.
Republicans have talked about changing eligibility for the payments or changing how members of the commission overseeing the fund are selected, according to another Senate GOP aide. But these options may not go far enough for some Republican senators.
The budget was already going through a process called reconciliation, which only requires 51 votes for passage. And part of that reconciliation package already falls under the jurisdiction of the Senate Judiciary Committee. This means a related amendment limiting the payout fund would also require a simple majority to pass rather than the 60 votes typically required to avoid a filibuster.
With so many lawmakers concerned about the payout fund, some Republican senators are worried a more limited approach could make it easier for Democrats to offer an amendment to block the fund outright and win just enough GOP support for it to pass, the Senate GOP aide added.
What else is happening to limit the payout fund?
House lawmakers have already begun introducing stand-alone bills targeting the anti-weaponization fund.
Rep. Jamie Raskin (Maryland), the top Democrat on the House Judiciary Committee, introduced legislation that would prohibit the use of federal money to create or finance the payout fund. It would also impose restrictions on awarding money to individuals involved in the Jan. 6 attack on the Capitol.
Rep. Brian Fitzpatrick (R-Pennsylvania) and Rep. Tom Suozzi (D-New York) introduced a bipartisan bill to block the Justice Department from using federal money to pay out claims through the fund.
Separately, California Gov. Gavin Newsom (D) said he would pursue a 100 percent tax on any money received by a California resident from the fund.
In the New York State Legislature, Assembly member Alex Bores, a Democrat, introduced a bill that would impose a 100 percent state income tax on any money collected from the fund by a New York resident.
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