With the refusal of Congress to appropriate money to build a wall along the border with Mexico, Steve Bannon started a GoFundMe campaign to help pay for the wall. However, he allegedly used the funds raised as a personal piggy bank instead of actually spending the money to help pay for the wall. Even if Steve Bannon intended to use the money to help pay for the wall, he likely could not have legally done so as the Department of Homeland Securities’ authority to accept gifts would prevent it from accepting such a gift.

6 U.S.C. 453(b) authorizes the Department of Homeland Security only to accept gifts under limited circumstances, except if Congress specifically authorizes the gift in an appropriations act (to which House Democrats are unlikely to agree):

Except as authorized by section 2601 of title 10, by section 93 of title 14, or by section 321n or 464 of this title, gifts or donations of services or property of or for the Department may not be accepted, used, or disposed of unless specifically permitted in advance in an appropriations Act and only under the conditions and for the purposes specified in such appropriations Act.

None of the applicable exceptions likely would allow a gift to go towards building a wall. Specifically, Title 10 only applies to “the Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not operating as a service in the Department of the Navy.” Likewise, 14 U.S.C. 93/504 (Congress renumbered section 93 to section 504 without changing the cross reference) only applies to the Coast Guard. Further, 6 U.S.C. 464 only applies to the Federal Law Enforcement Training Centers.

While 6 U.S.C. 321n provides at least some argument to allow the Department of Homeland Security to accept a gift to pay for the wall, the statutory basis is likely not strong enough. The section allows gifts for “otherwise authorized activities of the Center for Domestic Preparedness that are related to efforts to prevent, prepare for, protect against, or respond to a natural disaster, act of terrorism, or other man-made disaster, including the use of a weapon of mass destruction.” President Trump could argue that the southern border is a “man-made disaster” or “act of terrorism”, but even if that designation were to hold up in court, building a wall is likely not in the authorized activities of the Center for Domestic Preparedness under 6 U.S.C. 763a to “provide training to emergency response providers.”

Similarly, the GoFundMe campaign likely could not avoid the Department of Homeland Security’s gift authority by using the Department of Defense as a potential source for receiving a gift. 10 U.S.C. 2601 authorizes the military to accept gifts to “be used for the benefit, or in connection with, the establishment, operation, or maintenance, of a school, hospital, library, museum, cemetery, or other institution or organization under the jurisdiction of the Secretary.” However, that effort would also likely fail as 6 U.S.C. 211 specifically states that the border is under the jurisdiction of the U.S. Customs and Border Protection, which is in the Department of Homeland Security.

Even if Steve Bannon intended to use the funds raised to help pay for the wall, he likely could not have legally done so. The best he could have done is try to privately build and maintain a wall without any ongoing or future U.S. government affiliation.