Retired federal judge Andrew Napolitano is raising sharp constitutional questions over the Trump administration’s announcement that it will distribute $1.8 billion in Justice Department funds to individuals Trump believes were mistreated by the Biden administration—money drawn from a “settlement” of Trump’s own lawsuit against the IRS.
In a column published May 21 at Consortium News, Napolitano walks through the origins of the case: Trump’s tax returns were among those stolen and leaked by an IRS contractor, who subsequently pleaded guilty and was sentenced to a maximum of five years in prison. Because media publication of the stolen returns was shielded under the Pentagon Papers precedent, Trump’s legal options were limited. He waited until returning to the White House to sue the IRS itself, a move Napolitano finds legally untenable from the start, since the IRS and the Justice Department both answer to the president.
The resulting “settlement,” Napolitano argues, violates two foundational constitutional provisions. The Case or Controversy Clause bars federal courts from hearing disputes lacking genuine adversity between the parties: a condition obviously absent when a president is effectively suing himself. The case never reached a judge, who Napolitano believes would have dismissed it. The Appropriations Clause presents an equally firm barrier, he argues: Congress neither authorized this disbursement nor appropriated funds for this purpose, yet nearly $2 billion in taxpayer money is now slated for distribution at Trump’s personal discretion to political allies.
