Donald Trump’s administration is using a large private donation and an executive order to make a big deal about efforts to keep members of the armed services paid during a federal government shutdown, which is now in its 25th day.
But experts agree that the White House and Pentagon’s efforts have likely crossed the bounds into illegality. The question is now: does that even matter anymore?
When Democrats and Republicans failed to meet an October 1 deadline to fund the government for the current fiscal year, Congress kicked off a countdown clock. More than a million Americans, employed by the federal government in some manner, were due to miss a paycheck when the clock struck zero.
It did so on October 15, resulting in those hundreds of thousands of workers going unpaid. The same day, Trump signed an executive order restarting that clock for service members, directing the Pentagon to make sure the military continued to receive pay.
“Funds used for military pay and allowances during the current lapse should be those that the Secretary of War determines are provided for purposes that have a reasonable, logical relationship to the pay and allowances of military personnel, consistent with applicable law, including 31 U.S.C. 1301(a),” that order stated.
Most nonpartisan experts agree: the move was likely a violation of the Antideficiency Act, even with the administration’s attempts to satisfy its requirements via Trump’s order. The law prevents federal agencies from spending any money that has not been appropriated by Congress, and generally from accepting donations from the likes of Timothy Mellon, a major financial supporter of Trump’s 2024 bid for the presidency, who ponied up $130m to contribute to military pay. There are multiple requirements set by the law in which the Trump administration is apparently in violation of, including the use of money from a donation without congressional approval.
Administration officials separately reported $8bn in other funds they said they’d found to keep servicemembers paid. But that funding is due to dry up by the end of October. It, too, poses a likely violation of the Antideficiency Act, given that at least some was transferred from research and development funding the Pentagon claimed it had no obligation to spend; the money was appropriated by Congress for that purpose, regardless of which year it is used.
“When President Trump used money authorized only for the purpose of supporting R&D to instead pay the troops, he used existing money for a purpose not allowed by that appropriation. He also spent money to pay the troops when he didn’t have an appropriation usable for that purpose,” explained Bobby Kogan, a former adviser to the Office of Management and Budget, in a blog for the Center for American Progress.
Rich Brady, an expert with the Society of Defense Financial Management, added to Federal News Network: “Research and development dollars that were appropriated in 2025 are good for obligation in fiscal 2025 and fiscal 2026 — it’s two years, so they’ve got some flexibility in that account. The question is, how much can they legally transfer over and use for military pay purposes? It’s likely not going to add up to the full $8 billion that they’re talking about.”
Between the donation from Mellon and the use of R&D funds, there are at least three likely violations of the Antideficiency Act that experts have pointed to in the wake of the first October 15th paycheck deadline.
The 2026 NDAA remains in Congress, which is gridlocked by the shutdown and Speaker Mike Johnson’s decision to send the House home until it ends. NDAA bills have passed both chambers, but are stuck in reconciliation. Committees are projected to finish their work by Thanksgiving, with final passage of the bill before the end of the calendar year.
Until that legislation reaches Donald Trump’s desk, pay for military members is imperiled. Congress has until the end of the week before federal workers and service members miss a second paycheck. House and Senate members could reach a compromise on a bill to extend military pay at current levels temporarily, as the chambers did with continuing resolutions in 2024, but those talks are mostly frozen right now amid the shutdown.
Here’s the real question in a Trumpified country and justice system: Does any of this matter?
Whether something is a violation of the law and whether the law is enforced are two separate matters. In this scenario, the latter is a far more relevant question as Donald Trump’s Justice Department has followed a clear trend in its prosecutions by cutting favors to figures like New York City Mayor Eric Adams and Tom Homan, Trump’s border czar, after Homan allegedly accepted a $50,000 bribe from undercover FBI agents.
Trump’s DOJ is clearly more interested in pursuing criminal charges against his political enemies, even at the cost of forcing career prosecutors to resign in protest. It seems that the only chance these violations will result in criminal charges would be under a new administration. Even then, there will likely be far greater pressure for the agency to focus on other prosecutions related to the second Trump presidency, such as the military strikes against vessels in the Caribbean the administration alleges are drug traffickers, which even a Republican senator on Sunday referred to as “extrajudicial killings”.
There’s also the extreme likelihood, given past examples, that Donald Trump will issue a large number of pardons for members of his team ahead of leaving office. This could further complicate or entirely prohibit any criminal charges for Pete Hegseth, his Defense secretary, or members of Hegseth’s team.
All this is to say, the odds are stacked against any kind of law enforcement action ever stemming from what seems to be a blatant and multi-faceted violation of federal law.
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