Editorial: Congress has power to flush the slush fund

The Trump administration's creation of a $1.776 billion fund of taxpayer money under the president's control to pay favored individuals outside the judicial process is drawing bipartisan condemnation.

"From all outward appearances, this doesn't pass the smell test," said Sen. John Curtis, R-Utah. "We're considering legislative options," added Rep. Brian Fitzpatrick, R-Pennsylvania. "You can't do that."

When Republican members of Congress grouse about the president's excesses, it's usually just talk. But not always: Sen. Thom Tillis, R-North Carolina, used his power over confirmations to force the Trump Justice Department to drop its frivolous criminal probe into Federal Reserve Chair Jerome H. Powell. Perhaps this will be another instance where congressional Republicans assert themselves. They'd be doing a favor not just for taxpayers but their own party.

The "Anti-Weaponization Fund" announced last week is part of the "settlement" of President Donald Trump's lawsuit against the IRS over the leak of his tax returns by a contractor in 2019 and 2020. That leak — which affected thousands of taxpayers — was a serious crime, but it's not appropriate for the president to dictate the terms of a settlement in his own case. That's essentially what Trump is doing, because he controls the officials in the Justice Department and IRS who signed off on the terms.

The fund will make payouts to people the administration considers victims of government "weaponization." It's a loosely defined category expected to primarily include political supporters of the president who have been subject to investigation or prosecution. Congress never approved such a program, so the administration will tap the Treasury Department's Judgment Fund for paying settlements — a pot of money subject to relatively few controls that has been misused in the past.

Even a small number of Republican members of Congress offended by this extrajudicial arrangement have the power to limit or stop it. The Trump administration is pursuing, and Congress has been advancing, a $72 billion reconciliation bill to fund Immigration and Customs Enforcement and Border Patrol. The bill is intended to circumvent the Democrats' filibuster with only Republican votes.

The House or Senate could pair that money with language tightening control over the "Judgment Fund." They could limit payouts to third parties from the fund in a way that would also constrain future Democratic administrations.

Congress doesn't need to acquiesce to executive endruns around its power of the purse. As Justice Brett M. Kavanaugh wrote in a recent dissent that was praised to the heavens by Trump: "Importantly, the House, the Senate and the President annually approve most appropriations. As a result, each house of Congress and the president independently possesses de facto veto power over particular appropriations."

Just a handful of Republicans in either chamber can stop Trump's fund from going forward. Trump could veto the legislation Congress passes, of course — but would he really hold up funding for vital government functions over a much smaller pool of money for allies? That certainly wouldn't be a good political look heading into the midterms.

Two police officers who experienced the Capitol riot on Jan. 6, 2021, filed a lawsuit to stop the fund based on the expectation that it will be used to pay defendants in riot cases. But their claim to legal standing is shaky. The courts aren't the best venue for checking the executive's misallocation of resources — Congress is. The presidential cynicism on display here just might be enough to create a bipartisan legislative majority.