Donald Trump in a 2024 campaign ad repurposed for 2026 (AdImpact/AdAnalysis/U.S. Government).
The Trump administration likely violated federal law by shifting $20 million worth of taxpayer funds to run self-promoting campaign-style ads for President Donald Trump, a federal court ruled Wednesday.
In a 35-page order, U.S. District Judge Loren AliKhan, a Joe Biden appointee, found the Office of Management and Budget (OMB) "conceded the merits" in a lawsuit challenging those "partisan campaign" expenditures as illegal under various federal laws.
The Democratic National Committee (DNC) sued earlier this month after the White House produced and aired the ads using funds originally approved for Customs and Border Protection (CBP) to hold "commemorative efforts and events related to border security."
During a hearing in mid-October, an attorney for the U.S. Department of Justice argued the plaintiffs could not meet the standard for injunctive relief because the government had stopped airing the ads days before the parties squared off in court.
The plaintiffs retorted that the ads were still being shared online by the White House, and that even though the ads lacked the "paid for by the U.S. government" tagline, the production and cutting of the ads themselves using public funds violated the propaganda ban.
Under long-standing language used in congressional funding bills, appropriations cannot be used for "publicity or propaganda purposes."
The court took note of the propaganda ban — sourced from the Consolidated Appropriations Act — when ruling against the government.
AliKhan also found the Trump administration's ad campaign ran afoul of the "core tenet of appropriations law" by way of the Purpose Statute, as well as the Antideficiency Act, which bars the government from entering into "a contract or obligation for the payment of money before an appropriation is made unless authorized by law."
Collectively, those statutory violations mean OMB and the Department of Homeland Security (DHS), which oversees the nation's immigration agencies, violated the Administrative Procedure Act (APA), the plaintiffs argued.
And the judge, while issuing only temporary relief, saw no reason to disagree with the DNC's theory of the case — because the government itself did not see fit to argue against the merits.
"Tellingly, Defendants raise no arguments on the substantive merits of Plaintiffs' APA claim against OMB and DHS," the order reads. "That is, Defendants do not even attempt to defend the challenged ads as being permissible uses of appropriations … Because Defendants have conceded the merits of the DNC's APA claim, the court concludes at this early stage that the DNC has shown a substantial likelihood that OMB and DHS engaged in final agency action and is likely to succeed on its APA claim."
Instead, the government's "principal argument" was that "they have changed their conduct, so no injury will continue to occur," AliKhan recounts before rejecting this line of thought.
"The court is unpersuaded," the order says. "As the DNC correctly points out, Defendants' argument sounds in mootness, which Defendants bear the burden of establishing … If voluntary cessation automatically mooted every case, a defendant would be 'free to return to [its] old ways' as soon as the case was dismissed."
The judge then took the Trump administration to task for failing to abide by a claim made by the president himself on Oct. 5, following an uproar, that the ads would no longer use taxpayer funds.
From the order:
[T]hat promise went unfulfilled—the ads continued to air with the "Paid for by the U.S. Government" disclosure for at least another week. Specifically, the ads continued to air on October 6, when OMB apportioned $1 million to the CBP line item for commemorative events. The ads continued to air on October 7, when the Common Cause plaintiffs filed suit in the Southern District of New York and the DNC filed suit here. The ads continued to air on October 11[.]
"And the ads continued to air on October 12, even after the Southern District of New York's TRO went into effect," the order goes on. "This sequence of events gives the court reason to doubt Defendants' assurances that the same injury will not recur."
To that end, the court granted the DNC's request for a temporary restraining order, stayed the purchase order for the ads, and enjoined OMB and DHS from further "developing and airing the challenged ads."
The court also took the plaintiffs' complaints about the non-TV versions of the ads to heart.
"OMB and DHS shall take all necessary actions to cease distribution of the challenged ads, including through authorized third parties," the order goes on.
Now, the government has until Friday to provide an account of its compliance with the order in a status report.
The next hearing in the case is slated for Nov. 2.
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