Jack and Bob discuss the legality of the three advertisements praising President Trump that have recently aired with the tag “Paid for by the U.S. Government” and were reportedly paid for with Department of Homeland Security funds. They explain why the advertisements run afoul of the annually enacted appropriations rider barring the use of public money for publicity or propaganda purposes, and examine how the Government Accountability Office’s categories of impermissible propaganda apply to each of the three ads. They also touch on the less-clear relevance of the Hatch Act, why the applicable enforcement mechanisms are unlikely to be used, and what might explain an administration with ample party funds spending public money on advertisements that leading members of its own party have criticized.
Mentioned
Bob Bauer, “The Illegality of Trump’s Taxpayer-Funded ‘Public Service Announcements’,” Executive Functions, Sept. 28, 2026
The ‘publicity or propaganda’ rider, Pub. L. 119-75, div. E, § 718
GAO, Principles of Federal Appropriations Law, Ch. 3
Office of Legal Counsel, 28 Op. O.L.C. 109 (2004)
Antideficiency Act, 31 U.S.C. § 1341
Hatch Act, 5 U.S.C. §§ 7321–7326
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Good morning, Bob.
Bob Bauer: Good morning, Jack.
The White House has recently aired pro-Trump TV ads with the label “Paid for by the U.S. Government,” and the funds come from the Department of Homeland Security. Many Republican members of Congress, including Senate Majority Leader John Thune, have objected that political ads shouldn’t be funded by taxpayer dollars. So today, as is our wont, we’re going to talk about the legality of this scheme. But can you start us off by telling us what these ads were?
So far, there are three ads. Apparently, roughly $2.5 million has been spent on them. There was intense airing of one of those ads over the coverage of the National Football League on Sunday—the ads were run some 340 times, apparently.
And they are ads that are short takes, very heavily focused on Donald Trump, prominent in lauding him—if you will, praising him. That’s the fundamental function of the advertisement, with some musical background. In one case, the musical background is from a song entitled “Love Me.”
And the administration has responded by saying that these advertisements are to remind people of the importance of patriotism and loving their country—I’m paraphrasing. And as you point out, the question has been, how in the world can the United States government, in light of the applicable law and fundamental intuitions about how government money should be spent—how could the administration possibly be doing this?
And I’ll just conclude this point by saying the administration has apparently set aside a substantial budget for this and says there is still more to come.
When you say they set aside a substantial budget, you mean they set aside a substantial budget from within the government?
Correct, from Homeland Security, apparently. And the last number that I saw was $20 million.
Okay, so this is coming out of the DHS budget. And what does the law say about using federal funds for these kinds of partisan ads? First of all, is it clear that this is a partisan ad? Let me ask you that.
One of them is, it seems to me, very clearly, because it essentially draws on, and in some cases duplicates, campaign material from prior campaigns—a speech that he gave at a rally. It’s not clear whether it was pulled together from different occasions or one particular occasion; I’m less sure about that. But there’s no question that that’s what it is. It’s the adaptation of a campaign ad for these U.S. government, taxpayer-paid purposes.
What does the law say about this? The law says the following. An annual appropriations rider has for many years provided that appropriated funds cannot be used for, quote, “publicity or propaganda.” And the [Government Accountability Office] and the Office of Legal Counsel have fleshed out what type of communications would be considered propaganda for these purposes. They fall, just very briefly, into three categories.
First of all, self-aggrandizing material that is focused not on providing information but on somehow the importance or the significance of a particular official or program within the government—something, again, that is just self-aggrandizing. Secondly, partisan political material. And thirdly, a category that is called covert propaganda. That essentially addresses propaganda that is clearly that, but the source of the funding is not disclosed to the viewer.
So do these ads violate that law?
Yes. In my view, they clearly do. The fact that the U.S. government acknowledges it’s paying for it—and we can discuss why the administration is being so frontal about this; it’s just proceeding in the face of all this criticism to continue to do this—the fact that there has been disclosure doesn’t address the fundamental legal issue. The question is, is it propaganda? And all three of the ads that have so far been run—the “Love Me” ad, one that has to do with the Maduro capture, and one that has to do with the so-called “Final Battle,” which is essentially a battle, I guess, for the soul of the republic that Donald Trump leads—all of them violate either the self-aggrandizement provision or, alternatively, that provision and also the one that prohibits partisan content.
Okay. So what about the Hatch Act? Doesn’t it apply here as well? And what is the Hatch Act?
The Hatch Act generally prohibits executive branch officials from using their official position or influence to engage in partisan activities, to influence partisan political judgment—voter judgment. And there are certain lines that are drawn between activities that are permitted to them off duty and activities of a political nature that they absolutely cannot engage in while on duty. The question of the application of the Hatch Act to this seems to be more complicated.
For one thing, the president and the vice president are exempt from Hatch Act restrictions. The question then becomes, what about the people who’ve assisted in preparing the advertisement? And I think that’s a more complicated question. I’m not saying it doesn’t apply. I just think that application is a little less clear. I think the application of the anti-propaganda law is very clear.
Okay, let’s stick on that one, then. So it has been a common theme in the last 18 months. The question is, there appears to have been a legal violation, but what, if anything, can be done about it? Is there a legal enforcement mechanism here? This is a violation of an appropriations rider. So does that mean that the administration, if our interpretation is right, is spending unappropriated monies?
That’s correct. It’s violating a condition on the use of public funds that puts it in violation of the Antideficiency Act, which provides that the government cannot spend money that has not been appropriated for that purpose—in excess of lawfully appropriated funds for that purpose or for any purpose.
What is the penalty for spending unappropriated funds?
It could be criminally enforced—we can get into that question—but that has not happened. Typically speaking—and I’m now going to speak about how GAO has seen the resolution of these anti-propaganda law violations—as a kind of Antideficiency Act violation, that is supposed to go to the Office of Management and Budget, and the Office of Management and Budget is supposed to work through the way in which that violation is investigated and ultimately remedied.
However, of course, there’s no reason to believe—since OMB is a party to this particular violation, the administration is claiming it isn’t a violation. Anything that the Government Accountability Office has to say on this topic really doesn’t matter. And the Office of Legal Counsel, of course, are executive branch lawyers, and there’s no reason to believe in this administration that they are going to give an opinion that is adverse to the administration’s desire to pursue this program.
And even if they did, which they won’t, the president will just ignore it.
I mean, this is like what we’ve seen so, so many times. It’s the bad man theory of executive power. It’s okay to act clearly unlawfully if you can get away with it, basically. Is that right?
That’s correct. I mean, this is a challenge that essentially the administration is throwing down, even in the face of bipartisan criticism, even in circumstances in which the president, through various allied organizations and the political party, has tons of money—extraordinary sums of money—that it’s in the middle of spending on the midterms. The administration’s decided to spend millions of dollars of taxpayer money on what is obviously propaganda in violation of federal law, and it does not appear to be retreating in the face of the criticism.
So I have to say, this is a massive puzzle to me. I can’t explain it other than a desire for an executive power flex despite adverse political consequences. As you just said, the administration and the Republican Party have plenty of money. They’re loaded. And we’re not talking about huge numbers here from the government, I think, compared to the money that they have. Is that right?
That’s correct. I mean, we’re talking about—again, on reported numbers—$2.5 million spent to date and $20 million potentially budgeted, at least so far, for the program as a whole.
So what they’re basically doing is spending taxpayer money in the middle of a difficult campaign when they’ve got plenty of money otherwise, clearly violating the law. It’s been criticized by senior members of the Republican Party in Congress. It can’t be a good message that the president is spending taxpayer money in this way, when his own party is criticizing it, in a difficult election where people are hurting. So what’s going on? Why are they doing this?
Well, I suppose, given the reporting that he’s intensely interested in this and is actually picking the ads from any number that are put in front of him—I don’t know exactly how the process works—he’s picking the ads that he likes. It’s he we’re talking about in this situation. He has decided he wants to do this. And this is not dissimilar from other steps he’s taken to essentially solidify his position, communicate graphically his position. This is my government, and I can do with it what I want. It seems to me this is not dissimilar from tearing down the East Wing of the White House. It’s not dissimilar from other monument-building activities that he’s engaged in or is looking to engage in in the city of Washington—the dispute over the Kennedy Center, putting his name on the building, and his continuous fight over court-ordered removal. It just seems like he is insisting on saying, I can do this, and you can’t do anything about it.
Even if it hurts the party in a difficult election and is ultimately going to hurt him. In some ways, I think he enjoys flexing the ability to violate the law and get away with it even more when it doesn’t even seem to be a political advantage.
Yes. Yeah, I think we increasingly see that—the same problem that the party as a whole is having with his insistence, for example, on having a midterm convention in Texas that many Republican candidates did not want to attend. They did not think that essentially an encomium to him over a two-day period, with, I think, two speeches that he gave, was precisely what the doctor ordered in this election, and he did it anyway. He’s taking the position that people don’t recognize that he’s done a phenomenal job, and that he’s doing it because he’s a powerful, strong president, and therefore he’s going to emphasize what a good job he’s done and how much power he has, which includes the power to do this, and nobody can stop him from doing it.
It’s amazing to me that there’s nobody in the White House that can talk him out of this. It’s just extraordinary.
Oh, it’s interesting that you say that, because the other day—and again, I don’t believe any names were attached to this particular set of comments, apparently within the West Wing—but it was reported that when some question was raised about why doesn’t somebody restrain him, essentially the response was a shrug of the shoulders. There’s nothing we can do about it. He’s the boss.
He’s the boss, and he’s leading us off the cliff.
Yes.
Thanks, Bob.
Thank you.
