President Donald Trump delivers remarks in the Oval Office of the White House in Washington, Friday, March 7, 2025. (Pool via AP)
As courtroom losses pile up in myriad cases and controversies, the Trump administration is now looking to amass a collection of tentative money judgments in its favor that would come due later on down the line — if and when the government’s defeats are overturned on appeal.
On Thursday, President Donald Trump signed a memorandum “directing federal agencies to enforce a rule mandating financial guarantees from parties requesting” injunctions or restraining orders in lawsuits, according to a White House fact sheet about the policy.
In the memo, U.S. Department of Justice attorneys are now directed, in all cases going forward, to “demand that parties seeking injunctions against” the administration “must cover the costs and damages incurred” if the government is “ultimately found to have been wrongfully enjoined or restrained” by a lower court.
The memo, on its own terms, aims to curb the power of “activist organizations fueled by hundreds of millions of dollars in donations” and “activist judges” by pushing back against “frivolous litigation.”
The memo and accompanying fact sheet allege the administration has been forced to spend public funds defending against such lawsuits, push back and force people to “needlessly wait” on the enforcement of policies “that they voted for,” and divert “substantial resources” from the DOJ’s efforts to maintain public safety. All of this, the government says, has been “weakening effective governance.”
The government reiterates a by-now commonplace argument that judges at the district court level are exceeding their authority.
“Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported,” the fact sheet reads.
The Trump administration also complains of asymmetrical harm.
“This anti-democratic takeover is orchestrated by forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail,” the memo reads. “Federal courts should hold litigants accountable for their misrepresentations and ill-granted injunctions.”
To that end, the administration is basing the new bond directive on Federal Rule of Civil Procedure 65(c), which reads, in full:
Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
The language of the memo and fact sheet suggests the Trump administration views the rule as creating something not entirely unlike a situation where judges lack discretion.
The memo says parties seeking injunctions “must cover the costs and damages” if they lose on appeal. The memo directs DOJ lawyers to tell courts “Rule 65(c) mandates the court to require, in all applicable cases, that a movant for an injunction post security in an amount that the court considers proper to cover potential costs and damages to the enjoined or restrained party.” The fact sheet directs administrative agencies to “to enforce a rule mandating financial guarantees” and tells lawyers to request “federal courts require plaintiffs post security equal to the federal government’s potential costs and damages.”
Judges, however, do not treat the “security” rule as mandatory.
For over 100 years, state courts in the country have operated on the idea that a bond is not a prerequisite to an injunction — with the Alabama Supreme Court endorsing the idea in 1889. Federal courts have enshrined the discretionary concept since 1961 — at the latest.
Recent attempts to invoke the rule have not gone well for the government.
On Feb. 21, a federal judge in Maryland issued a nationwide injunction against some of the Trump administration’s anti-diversity, equity and inclusion directives both “unconstitutionally vague on their face” and in violation of the First Amendment guarantee to freedom of speech.
In issuing that injunction, U.S. District Judge Adam B. Abelson, a Joe Biden appointee, effectively waived the security requirement.
“Here, because the Plaintiffs seek to protect their First and Fifth Amendment rights, and because a bond of the size Defendants appear to seek would essentially forestall Plaintiffs’ access to judicial review, the Court will set a nominal bond of zero dollars under Rule 65(c),” the judge ruled.
On Feb. 25, a federal judge in Washington, D.C., issued a nationwide injunction against the government’s policy that would freeze funding on distributions to federal aid programs.
In her order issuing the injunction, however, U.S. District Judge Loren AliKhan, also a Biden appointee, took a decidedly different route — flatly rejecting the idea of a bond requirement.
“The court declines,” the judge wrote. “In a case where the government is alleged to have unlawfully withheld trillions of dollars of previously committed funds to countless recipients, it would defy logic — and contravene the very basis of this opinion — to hold Plaintiffs hostage for the resulting harm. That is especially so when Defendants — OMB and its director — will personally face no monetary injury from the injunction.”
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Still, the prospect of DOJ attorneys pressing the issue at every step in the future litigation landscape could very well result in some judges agreeing that some kind of bond is required under the rule. There is also the outside possibility of an eventual circuit split — which could prompt the U.S. Supreme Court to eventually decide the matter.
Such threats alone might cause some lawsuits to never be filed.
“The theory is that the increased cost will deter litigants,” computer law expert and criminal defense attorney Tor Ekeland told Law&Crime. “Costs and damages can run into the millions, and a petitioner having to post a bond for any future liability will make every petitioner think twice before running to the courthouse. And limit litigation to those with deep pockets.”
