General Discussion

The extraordinary ‘settlement’ agreement between Trump and his own government

The first remarkable feature, which this Weekly Constitutional blog has covered before, is that there was not really a dispute between the parties capable of being adjudicated by the courts. The judge in this case doubted that the court had jurisdiction to hear a suit brought by one person against entities he effectively controlled.

The judge could have then struck out the case for want of jurisdiction, but she instead wanted to hear the arguments of the parties on the point. The deadline for those submissions was this week. But Trump and his fellow plaintiffs—his son and his corporation—did not make any submissions. They “settled” the case instead.

And this brings us to the second remarkable feature: the extraordinary nature of the supposed “settlement”. Here, the starting point is that in the eyes of the court there is no settlement. According to the court record—the docket is publicly available here—the suit has been withdrawn. The plaintiffs have simply dropped the case.
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Many things can be done by a contract, the legal device by which parties can agree to have obligations and rights which they otherwise would not have at law. Sometimes agreements, including those for settling litigation, can contain complex and imaginative provisions. But what is being done here is something else.

This “settlement” agreement is setting out the sort of thing which is normally done by primary legislation. It is taking taxpayers’ money and creating the means by which parties not connected to the litigation can benefit from payments by that money. This is not about litigation or its settlement: this is fiscal policy by other means.