Congress appropriated $20 million that ended up paying for television ads featuring President Trump; about $19 million of it was spent before a federal judge ordered the campaign stopped on Sunday night. U.S. District Judge Jennifer L. Rochon in Manhattan granted a temporary restraining order, effective 6:45 p.m. ET, that directs the administration to cancel all remaining ads — including any due to air Sunday evening — and bars it from entering, renewing or expanding any agreement for their “development, creation, dissemination, placement, or airing” for the order’s two-week duration. She also stayed the purchase order between Customs and Border Protection and the contractor, Lepugh Inc., doing business as LMD Agency Inc., CNBC reported.
Where the $20 million came from
The money’s path ran through two steps one day apart. On Sept. 19, the White House Office of Management and Budget granted CBP $20 million for “OBBB Commemorative Events,” according to a nongovernment database; on Sept. 20, the Department of Homeland Security awarded LMD Agency $20 million for a “National Media Campaign,” contracting records show. The source of the funds was first reported by The Washington Sun. In a Saturday court declaration, senior DHS official Holly Mehringer wrote that the money came from congressional funds “available for, among other things, ‘commemorating efforts and events related to border security’”; CNBC describes the source more broadly as a large appropriation for immigration enforcement.
The ads began airing in late September under the caption “Paid for by the U.S. Government.” There are five spots. The lawsuit describes one, titled “The Country He Loves,” as rapid cuts of Trump photos and videos mixed with text touting what he views as accomplishments — “Largest Tax Cuts in History,” “Reigniting American Manufacturing,” “Defend Law and Order and Police” — while the screen repeatedly flashes “AMERICA WILL NEVER BE A COMMUNIST COUNTRY.” Another ad replays one from his last presidential campaign. The fifth spot, which began airing Tuesday, covers the administration’s capture of former Venezuelan leader Nicolás Maduro. The White House defends the ads as public service announcements like those of past administrations, but unlike most PSAs they are not aimed at helping the public use a specific government program. A White House official said last month the ads “are clearly not political,” noting the president is not on the ballot and the ads carry no call to action.
The legal problem
Legal experts say the spending likely violated the federal statute barring congressionally appropriated money from being used for “publicity or propaganda,” and possibly other laws. Sen. Maggie Hassan, D-N.H., made that argument in a Sept. 24 letter to White House chief of staff Susie Wiles, writing that one ad “does not have a clear official government purpose” and appeared to breach prohibitions on appropriated funds funding “a general propaganda effort designed to aid a political party or candidates.”
The coalition that sued on Oct. 7 — the watchdog Common Cause and Service Employees International Union Local 32BJ, represented by the nonprofit Democracy Forward — asked Rochon to act even though the Manhattan U.S. Attorney’s Office had told her the ads would not continue past Sunday. The Justice Department had argued in a Saturday filing that a restraining order was unnecessary because “the alleged offending conduct will end tomorrow.” The plaintiffs answered that the defendants “admit that appropriated funds were used to pay for political ads and do not dispute that this use of taxpayer money is unlawful,” and that ads were still scheduled to air Sunday, “including during evening programming that will attract millions of viewers.” Rochon agreed the request was not moot, rejected the Justice Department’s standing argument, and found the coalition likely to win, facing irreparable harm, and that “an injunction serves the public interest,” CBS News reported. The Democratic National Committee filed a separate suit over the ads the same day.
Criticism crossed party lines. “It shouldn’t be paid for with taxpayer dollars,” Senate Majority Leader John Thune, a South Dakota Republican, told reporters. GOP Sen. John Kennedy of Louisiana said on Face the Nation last month: “I don’t think any public official, including President Trump or [former DHS Secretary] Kristi Noem or John Kennedy, should spend public money on private ads for themselves.” A group of Senate Democrats called it “the sort of government propaganda one might expect in North Korea.”
There is no legal justification — and no precedent — for the president to use the machinery of the government and funds set aside by Congress for other uses to influence electoral outcomes that further his own agenda.
That statement came from the plaintiffs after Sunday’s order. On Oct. 5, Trump had defended the ads as “rather standard” but said that going forward he or his super PAC, MAGA Inc., would pay for them from political fundraising; a White House official said there were no immediate plans to reimburse the government for what was already spent. Separately, attorneys for the artist JMSN, whose song “Love Me” appeared in one ad, sent a cease-and-desist letter to Wiles last month. Rochon said she will issue a full opinion explaining her ruling. The arithmetic that opinion will sit on is fixed: $20 million appropriated, roughly $19 million spent, $0 repaid.