17th July 2026
Yesterday this blog published a post, but it had a borked link to the judgment mentioned. Although this was quickly corrected online, it meant those who only read emails would not have the link.
That judgment of the ages is here – and you really should read it in full.
And my Weekly Constitutional article at Prospect on the case is here.
I should be publishing a fuller post on here on the case soon.
16th July 2026
There has never been a case like this one.
That is not just the view of some passing legal blogger, but of the judge herself. As Judge Kathleen M. Williams said in her latest, highly significant order:
“But perhaps the most startling misstatement advanced by Plaintiffs is their characterization of this case as “ordinary.” […] There is nothing “ordinary” about this case; it is the very definition of sui generis.”
“Sui generis” is a legal phrase, meaning a thing is unique.
As a biologist would say, a thing has a genus all of its own.
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The case is, of course, the (supposed) litigation between President Trump and his own government, which was (supposedly) settled in a way so as to lead to a huge slush fund for political allies and wide ranging tax immunities for Trump.
And that has come to a halt, with this wonderful piece of legal writing, which you should read in full.
I will do a longer piece on here when I have fully recovered from an irksome illness, and thank you for your patience in the meantime.
4th July 2026
A republic, if they can keep it – as Franklin said
Today is the 250th anniversary of the declaration of independence by a group of people who took land from one group of people and enslaved another group of people. All in the name of liberty.
Still, it was a step in the right direction, if not really a stride. In principle, a republic is better than a monarchy, and a federal system is generally better than a unitary state. And the theory of a separation of powers, with checks and balances, is a very fine theory indeed.
Over at Prospect I have done a Weekly Constitutional piece on how the United States and England, supposedly both from the same common law origin, have ended up with very different views on executive power.
In England and Wales (and in the United Kingdom, though this blog is always mindful that Scotland and Northern Ireland have their own legal systems), a primary statute that expressly limited executive power would be respected by the courts. But in the United States, a statute doing the very same was this week struck down by the supreme court.
It is an odd outcome for a nation some 250 years after ridding itself of a monarchy.
But happy birthday all the same.
3rd June 2026
The proposal for a ‘anti-weaponisation’ fund seems to have been dumped.
The acting Attorney General of the United States said at Congressional meeting yesterday that:
“We are not moving forward with the fund.”
Nor indeed moving in any direction with the fund.
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But the fund was a consequence of a more fundamental abuse of power which is still in place, and until that is hacked out there will be other problems.
As set out in previous posts, a contrived and inflated legal case was brought by Trump (and his son and his company) against the United States government, which was then purportedly ‘settled’ between the parties, though without court approval or even recognition.
The settlement – that is a contract – was then used as a legal basis to create rights and obligations of an extraordinary nature.
To allude to the eminent jurist Meat Loaf, one can do many things with settlement agreements, but one cannot do that.
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One provision of the supposed ‘settlement’ was the creation of the ‘anti-weaponisation’ slush fund to benefit various supporters of Trump. This audacious move now appears to have been aborted.
But other extraordinary provisions with a basis on what only a private contract are still in place.
This is an addendum to the supposed agreement:
This is a wide immunity for the plaintiffs – and others! – from more-or-less any action the United States treasury or revenue service could take against them. If the provision had effect, it would fetter the tax authorities, preventing them from doing a whole range of actions.
Such an immunity should, if it exists at all, have a solid legal basis – and should be approved or overseen by Congress.
But to base such an immunity on the shaky-flimsy basis of a private contract without any court recognition is, well, inappropriate.
One suspect that one purpose of the litigation was to get in place a ‘settlement’ agreement, where the opportunity would be taken to place wide-ranging obligations and restrictions on the tax authorities.
As reported in yesterday’s post the court has re-opened that litigation. If the litigation is now stuck out then there will not even be nominally a dispute, and without a supposed dispute there cannot be a settlement.
That would mean the above immunities would go too – to the extent they even exist at law.
So a lot still rides on what the court does with this re-opened case.
The slush fund seems to have gone, but will the rest of the ‘settlement’ go too?
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2nd June 2026
In a significant development the court has now re-opened the litigation which had ended in the supposed ‘settlement’ of a slush fund for President Trump’s political supporters.
You may recall that this blog has previously covered this extraordinary case.
The story so far in essence:
– Trump (and his son and company) brought a largely contrived case against his own government for inflated damages of $10 billion;
– the court rightly doubted that this was an actual dispute between the parties, and so required further submissions on jurisdiction;
– just before the deadline for those submissions, Trump and his co-plaintiffs pulled their claim, leading the court to formally end the case;
– there was then a supposed “settlement” between the parties but without any court recognition which purported to set up a $1.776 billion slush fund and also to grant legal immunity for Trump and others;
– but this ‘settlement’ has been challenged by former Capitol police and also by a group of former federal judges.
Well, the action brought by the group of former federal judges has actually gained some traction.
The judge has now re-opened the case.
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Here is the online docket, and sometimes dockets are a form of poetry.
You can see on 18 May 2026 the case was closed, and then on 27-29 there was an application and then an Order to re-open the case.
You may recall from an earlier post that the former judges are attacking the ‘settlement’ from the perspective that there was an abuse of process in pulling the case and then purporting to settle it.
The judge now has re-opened the case, and she is now asking for even more submissions from the parties.
This places the parties in a far worse position than they were on the eve of the case being pulled. And here there seems to be no way out for the parties by trying to pull and ‘settle’ the case again. They have to come up with the submissions, else presumably the the case will be struck out.
You will see that those challenging the ‘settlement’ can, in turn, make submissions in reply.
This is a huge set-back for the parties setting up this slush-fund on the back of a ‘settlement’. If the case is struck out, there is nothing to settle, and so there cannot be any kind of ‘settlement’.
The rug is being pulled.
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There is so, so much wrong with this case, from every angle. It is like an implausible exam question for law students. This is not what litigation is for and this is not what settlements are for.
But at least now there is a chance for the court to self-correct the excesses of the parties, for if the case is struck out there cannot be a ‘settlement’ – either recognised by the court or otherwise.
Let’s keep watching.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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28th May 2026
This blog has previously covered the extraordinary legal suit brought by Donald Trump against his own government and then the extraordinary supposed “settlement” of that law suit.
That “settlement” purported to use a private agreement (not placed before a court) to establish a high-value fund to benefit political allies of the president – including the insurrectionists who attacked the Capitol.
It looked as if the legal side of the case was over, and it was now a matter for politics.
But the legal side is not over.
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There are (at least) two legal challenges to what has happened, from different perspectives. Both are legally interesting, as they attack the problem from different legal angles.
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One challenge is from two police officers who were at the Capitol during the attempted insurrection.
You can read their challenge here.
The police Plaintiffs are applying for orders and other court relief to quash the establishment of the fund – primarily on the basis that the federal government does not have the legal authority to do what it is purporting to do.
This appears to be essentially a public law action against the federal government. It is exactly the right sort of case to bring against public bodies exceeding their powers.
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The other case is far more legally ambitious and imaginative, and it has been brought by a posse of retired federal judges, who are “Movants” (lovely legal word) of a motion for the court itself to re-open the case.
This is also exactly the right challenge to bring – but in respect of what appears to have been the abuse of process which led to the supposed “settlement”.
If the Movants succeed then the court will re-open the case and continue with its inquiry into whether there was a real dispute.
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Some abuses of the law are straightforward, and when they occur they usually lend themselves to an obvious remedy.
But the more extraordinary the abuse, the more any remedy has to be especially fashioned.
Here the police Plaintiffs and the federal judge Movants have worked out two different ways to approach the instant situation – one by attacking the outputs (the setting up of the fund), the other attacking the inputs (the way the supposed litigation ended).
I am not an American lawyer, and so I do not know if either case has merit and/or will have traction. But both are interesting ways to get the courts to weigh back in an utter outrage that had looked as if it had escaped the courts.
22nd May 2026
Contract law is a fascinating subject: it is about how parties can create legal obligations and rights between themselves which otherwise would not exist.
Constitutional and other forms of public law are, of course also fascinating: for they set out what can and cannot be done by those charged with public power.
And when contract law and constitutional law mix, then the results are even more fascinating.
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The legal suit brought by President Trump (and his son and his corporation) against his own government is extraordinary for many reasons.
In particular two things stand out.
First, there does not seem to be a dispute capable of being adjudicated by a court.
Second, there does not seem to have been a settlement in any legally recognisable form.
To adapt a famous techie saying: bizarre in, bizarre out.
In reality the whole exercise is brazen corruption. Everyone knows this, though many do not seem to care. It is the sort of thing that should (but will not) lead to Trump’s immediate impeachment and removal from office.
But, this being a law and policy blog, let us go though the motions of looking at this racket from a legal perspective. If anything, it will show what an odd thing is going on.
As this blog has already set out (as well as at this Prospect piece), the law suit was a rum affair.
That is not to say there was not an underlying legal wrong: the leaking of the president’s tax returns (even if in the public interest) was an unlawful act and indeed the leaker has been prosecuted under the criminal law.
And generally (if not universally) speaking where there is a criminal offence there is usually a civil wrong – what lawyers call a tort.
The records of Trump were leaked by a government contractor and so, in principle, there is both blame and a claim.
But on this basis, Trump and his co-plaintiffs constructed a demand for an extortionate amount – far above what would be the level of damages for such a wrong – and brought the claim at a time when Trump was in effect the head of the defendants. Trump thereby would have effective control of both sides of the case.
The plaintiffs, however, encountered a problem. The court was not convinced it could hear a claim where one person controlled both sides. And if there is not an actual dispute between parties in disagreement, then the court would not have jurisdiction to hear the claim.
At this point the judge could have simply stuck out the suit for want of jurisdiction (though that probably would have been appealed). Instead, the judge invited the parties to make submissions on the jurisdiction point – and she also appointed independent lawyers as “friends of the court” to make submissions which the parties may selfishly not wish to make.
The deadline for those submissions was last week. But the plaintiffs did not make submissions. They pulled the case instead. The claim was dropped.
We will never now get to know how the court would determine the issue.
And if you looked at the court record – the online docket is publicly available here – that is the end of the story.
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But the story does not end there.
There is a supposed “settlement” – click here.
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This is not a settlement agreement which the parties put before the court to be endorsed. It is thereby not an agreement that has been recognised by the court, still less are its terms enforceable by the court before which the relevant litigation was brought.
It is instead a private agreement between parties to, among other things, bring the litigation to an end.
Such private side agreements are possible, though the parties lose any benefit of the relevant court recognising and enforcing the terms of the agreement.
The remarkable thing about the supposed settlement agreement is not that it ends the law suit – it is what the agreement purports to do as well.
In essence: a private settlement agreement is being used as a basis for legislating for a lucrative fund for the benefit of third parties and immunity from criminal prosecution for the plaintiffs.
Contracts – including settlement agreements – can be used for many complex and imaginative things, but this goes beyond the extremes for what any contract can properly be used for.
This is instead the sort of stuff that legislation is for, passed by Congress – not a settlement agreement which has not even been placed before a court for endorsement.
The settlement agreement even purports to provide for the tax status of this fund, a fund which is intended to benefit those allies of the president who have been accused of and convicted of crimes against public officials.
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We are in strange times and so nobody can say with any certainty that this slush fund will be held to be unlawful if not unconstitutional.
The scheme should, of course, be quashed on the spot.
The cynical audacity of the proposal, and the means by which it has been contrived, warrant gasps – though not of admiration.
Over at Prospect – click here – this week’s Weekly Constitutional post is about this example of sheer charlatanism.
And that post concludes by saying that if this sort of thing can be imagined by Trump and his cronies, whatever will he and his cronies try to get away with next.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
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5th May 2026
It is a paradox that in the weeks and days before an election people tend to become less interested in law and policy. The focus instead turns to politics and personalities, and the soap opera of who is up and who is down, and who is in and who is out.
And in the days after the elections, those who could not predict the outcome will confidently assert that the result proved them right all along.
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This is not really a politics blog, and it has no party-partisan preference. Indeed, the general view of the blog is that governments tend to be illiberal, regardless of which politicians take power, and that the politicians who affect to be liberal in opposition tend not to carry that liberalism over into office.
As the eminent jurists the Bonzo Dog Band aver, it can seem that no matter who you vote for the government always gets in.
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But.
We have in popular opposition not only those parading their liberalism, but the illiberalism, and so voters have a choice between the possibility of liberalism (and likely disappointment) and the certainty of illiberalism (and likely despotism).
And so it is at times like that we should take more interest in the actual workings of government and now public administration works. We should watch how public administration is conducted with anxious scrutiny.
This is why, perhaps counter-intuitively, the whole Starmer-Mandelson-Robbins affair is important.
In respect of political drama, the matter may not be of lasting import: the media caravan has moved on, and the attention-spans of the easily bored have been exhausted. The Prime Minister is still in office and if he is to be deposed, then it will because of a further political drama and not the one which has just passed.
The importance of what happened is otherwise than of immediate political effect. It was instead in the rare insight we had into how ministers and officials actually do make decisions (or don’t make decisions). The sort of thing which is usually hidden from public view.
An excellent balanced and informed account of the matter has now been posted at the Substack of the estimable former civil servant Martin Stanley. That post is required reading for anybody with an interest in our government in action (or inaction).
What I can add from the perspective of a former central government lawyer is that the informal-formal inexact process and lack of process is not unusual in Whitehall. The only difference here is that a stone has been lifted and we get to see what was teeming underneath.
(Public administration is more about teems than teams.)
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Sometimes one can fall into the error of thinking government and administration is about the neat, almost-Euclidean geometry of decision trees and straight lines on a grand plane of an organogram. No, it is often a mess, both at the time and when there has to be an account of it afterwards.
This is why one the purpose of processes and policies and public law is not so much to make things go well, but to help stop things being worse. For example, the law of public procurement is not really there to help public authorities to make good purchasing decisions, but to stop public authorities making worse purchasing decisions than they otherwise would do.
And this is the significance of the Starmer-Mandelson-Robbins affair: we got to see under the rock. From that we can take the wider understanding that this is how important decisions and indecisions are made more generally. And that, in turn, helps explain why we have such an accountability gap in the government of the United Kingdom.
There is a general disconnect between how ministers and officials take decisions and how those decisions are accounted for to parliament, and to the media and public.
Certain executive-minded pundits and activists want to reduce even further the role of processes and policies and public law in government – to get rid of impediments and barriers.
They think that will make public administration better and more effective, but it is more likely to make public administration even worse than it already is.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
May Day, 2026
One thing about fundamental legal principles is that they are rarely expressly feature in litigation – at least not expressly. That is because they are fundamental – they are shared and assumed to apply.
Such principle provide the “rules of the game” and the courts deal with disputes about things the parties do not share in common, like differing views on the facts and on the applicable law in a particular situation.
This is why – at least until fairly recently – constitutional law text books both here and in the United States often did not have many recent cases as precedents or even illustrations of certain fundamental principles. An 1800s case there, a 1700s case here, some vague mention of Magna Carta, and that would be it – for paragraph after paragraph, and chapter after chapter.
But the Brexit-Trump years have changed this. Such is the jolt to the United Kingdom and United States polities that certain hitherto constitutional and legal norms in the background have to the fore. Points which one never expected to be the subject of a practical case now fall for judicial determination.
And in the United States we have a case which goes to the very heart of any litigation system, with the court having to ask “what actually is a dispute?”.
That case, of course, is the one where Donald Trump is suing the United States Treasury and the Internal Revenue Service.
I have written about this case this week over at Prospect – click here.
Although nominally Trump is doing this (with his son and company) in a personal capacity, and not formally as president, the reality is that the president is suing his own administration – for $10 billion.
And so in reality he wants to negotiate, with himself, and to agree, with himself, for a resolution where the suit is compromised for a high amount of money, in the region one suspects of $10 billion.
It is an extraordinary case, even at a time of many extraordinary cases.
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In one way, Trump has a point: he was legally wronged by the Treasury and IRS. His tax returns were unlawfully leaked. And this is the case even if he, like other presidents, should have voluntarily disclosed his tax returns to the public. There has been a prosecution and a conviction of the leaker.
A follow-on civil case is not thereby surprising, for generally (but not universally) when there is a crime there is also a tort.
(That said, there was once an over-confident law lecturer who insisted that there was a tort for every crime and challenged the class to gainsay him, to which one annoying student offered ‘blasphemy’. Sorry.)
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So if Trump has been civilly wronged, he should in principle be able to bring a case for damages.
But what makes this case problematic is that he currently controls both sides of the litigation.
This is because of his position as head of government, and also because of an executive order which prevents any federal body or employee from putting forward a view of law distinct from the president.
All this means that not only is he effectively litigating with himself, he would also be effectively negotiating with himself for settling that litigation.
(A great deal of civil litigation ends in settlement.)
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There is a legal principle so fundamental that it is sometimes described as one of the very rules of natural justice.
This principle is that a person should not be a judge in their own cause.
Here the application of the principle would be that a person should not settle a legal dispute with themselves. Indeed, one can fairly ask if there is a dispute at all in such circumstances.
And that is what the federal judge has asked in this case.
In this fascinating four-page order judge Kathleen Williams goes back to the very first principles of law to ask whether there is actually a dispute here to be determined.
She did not dismiss the case, but she is now seeking legal argument on the point.
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Given there has been a civil wrong to Trump, there is the question of how his private law rights could be enforced against the government while he is a sitting president.
Perhaps the case should be stayed for the duration of his presidency, without prejudice to any limitation period. Or perhaps independent attorneys should be selected to litigate the case on the parties’ behalf, with Trump blind to their litigation decisions, or there could be some binding independent third-party adjudication.
There are various ways his legal position could be reserved or protected so that he is not simply negotiating a settlement with himself.
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When litigation lawyers are trained they are warned about sham litigation cases where for money laundering or other purposes an artificial dispute is contrived and then “settled” for a huge a mount of cash changing hands.
What is happening in the United States is not a sham case: Trump has a claim.
But there are ways and means of bringing a claim, some less artificial than others, and the federal court in the United States now has to work out a way for Trump’s claim to be addressed while avoiding the spectacle of the president negotiating with his own federal employees for a cash payment of up to $10 billion.
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
10 April 2026
Hello and welcome to The Empty City blog, the new name of which is explained here.
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Yesterday Melania Trump made an unexpected public statement.
The statement in its circumstances was odd. There was no formal requirement for her to make the statement, and there also seemed no particular reason for her to make the statement. The statement was not, for example, a response to any known media or legal development.
For viewers – and for many in Washington, it seems – the statement was out of the blue.
It was, in a word, odd.
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This blog has no particular focus on Epstein and so on. There are many other online resources for anyone taking a close interest in the release (and non-release) of the Epstein files. This blog also is not concerned with the various documents and supposed documents and other material that may or may not connect Melania Trump with Jeffrey Epstein.
But this blog does like a good close reading.
And so what can we say (and not say) about this particular text in performance?
Let us explore.
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We shall start with the text.
It was a prepared text.
It was also as text which, at least in part, was very carefully drafted to deal with certain potential issues of legal liability and to explain (and explain away) certain pieces of evidence. The text indicates that it was put together, at least in part, by someone skilled and experienced in drafting.
One should not under-estimate Melania Trump (or indeed anyone in public life) and, but for her performance of the text, one could readily assume that she may have drafted the text herself.
As the text engages with issues of potential legal liability not expressly stated in the text, one can perhaps discount that it was written by ChatGPT or some other generative AI. Some generative AI can be very plausible indeed – including for formal and legal texts – but usually not about things which are not also stated in the text.
The impression conveyed by the text is that it was authored by someone skilled in drafting sensitive statements.
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So if it was a prepared text then when was it prepared and for what purpose.
The immediate assumption of many (including in the media) is that the statement was prepared for the purpose of this performance.
That may well be the case.
But it may also be the case that the statement (or an earlier version of it) was prepared earlier for another purpose and perhaps for publication or for reading to an inquiry, rather than to be read to camera.
It reads as a statement to be circulated. It was not a statement well suited to be read out to camera.
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Melania Trump, as anyone who saw the footage saw, seemed unfamiliar with the text.
She stumbles over certain words, some of which were significant and, if anything, required emphasis.
This stumbling indicates (but does not prove) that she was not the author of the text.
(That English is not her first language is not a relevant point here: there are many for whom English is not a first language who would not stumble in these circumstances.)
Of course, the stumbling may just be nerves – and who would not be nervous in such circumstances – but it is more likely to indicate a lack of familiarity with she was reading.
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The stumbling also indicates (but does not prove) that the performance was not prepared for or rehearsed.
If so, such a lack of preparation or rehearsal contrasts with the careful composition of the text.
If a carefully drafted text is intended for performance then one can presume that similar effort is put into the performance as the text. (Unless the performer is (over-)confident in not need preparation or rehearsal.)
This therefore indicates (but does not prove) that the text was not intended for this particular performance.
The impression is that the performance to camera was a late decision and a pre-existing text was used for the performance.
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But, if it is correct that the text was drafted by a legal or other adviser then we come to a tension, if not a contradiction.
For it is hard to see what competent and prudent legal or other adviser would have advised her to volunteer this statement, out of the blue.
A competent and prudent legal or other adviser would presumably say that unless there is a formal requirement or other pressing reason to make such a statement, then it would be wiser not to make a statement.
And so we have what looks like a statement put together (at least in part) by an adviser performed in circumstances which no sensible adviser would advise that it be performed.
Odd.
Perhaps the statement is to to (p)rebut an impending legal or media development and if so, all will become clear.
But on the basis of this text in its performance, it was a curious thing.
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Overall, the impression conveyed is that this is an exercise in crisis management (hence the well-prepared text) broken-off mid-flow in an unexpected way.
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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.