Trump’s Collusive ‘Anti-Weaponization Fund’ Takes a Page from the Left’s Playbook

D onald Trump should never have pursued a lawsuit for money damages from the IRS once he was returned to the presidency. As I explained, in January:

It’s not that a president could never sue the government. If Trump was trying to recover some illegally seized property of his, or get market-rate compensation for land that was taken by eminent domain, or get back payments on an unpaid contract or pension, or if was pursuing some similar effort to recover what was his, that would be defensible. Presidents don’t give up all of their legal rights when they take the job. But this, like the prior claims, is a tort claim for intangible injuries from government misconduct — the kind of claim that involves a lot of inherent judgment about what cases have legal merit and how to value them. And Trump’s intangible rights have been thoroughly vindicated by winning back the presidency. It would stink to high heaven to pay him from the public treasury at his own say-so now.

The good news: This morning, Trump and the other plaintiffs in the case (his sons and the Trump Organization) filed a notice of voluntary dismissal with the federal court in Miami dropping the case. The dismissal is with prejudice, which means that the lawsuit can’t be revived later. Because it’s early enough in the case that the IRS hasn’t filed a response (including a motion to dismiss the case), this can be done unilaterally without court approval, as can be required once a case is underway.

There was good reason for Trump to hurry. The case landed in front of Judge Kathleen Williams, an Obama appointee. A pair of briefs were filed early on by anti-Trump groups (Citizens for Responsibility and Ethics in Washington (CREW) and the Democracy Forward Foundation) seeking to appear as amici curiae, arguing that the suit was essentially collusive in nature, with Trump controlling both sides. Judge Williams granted their motions to appear as amici, and went further, designating court-appointed amici (including former solicitor general Donald Verrilli) to advise her on whether the case should be thrown out; the brief was filed on May 14. Another brief was filed by 93 House Democrats.

In a slightly more detailed order, Judge Williams wrote:

The Parties have advised the Court that they are engaging in discussions to resolve this matter. Moreover, although President Trump avers that he is bringing this lawsuit in his personal capacity, he is the sitting president and his named adversaries are entities whose decisions are subject to his direction. Indeed, President Trump’s own remarks about this matter acknowledge the unique dynamic of this litigation. Accordingly, it is unclear to this Court whether the Parties are sufficiently adverse to each other so as to satisfy Article III’s case or controversy requirement. [Footnotes omitted.]

Now, as often happens with liberal and progressive judges, she tried to couch this as concern that Trump is uniquely a threat to control the Justice Department, and therefore he should arguably be held to a standard that is not intended to apply to Democratic presidents:

President Trump has issued multiple executive orders which shape the relationship of the agencies of the executive branch to his presidency. For example, “[n]o employee of the executive branch acting in their official capacity may advance an interpretation of the law . . . that contravenes the President[’s] . . . opinion on a matter of law, including but not limited to . . . positions advanced in litigation[.]” Exec. Order No. 14215, § 7. One such employee of the executive branch, the Attorney General, has a statutory obligation to defend the IRS when it is hailed into court, but then is ostensibly required by executive mandate to adhere to the President’s opinion on a matter of law in such a case. This raises questions over whether the Parties here are truly antagonistic to each other.

She also held against Trump his candid comments about the inherent conflicts of interest in this case and in claims he previously filed against DOJ. But this is nonsense: The conflict would be the same no matter who is the president, and no matter whether the president admits that it exists or not.

There are real and unavoidable separation-of-powers issues here. On the one hand, it’s invasive for the courts to dig into exactly how the DOJ is defending a lawsuit. On the other hand, when the power of the federal courts is invoked, the courts have good reasons to be concerned that the judicial power is being made a pawn of intra-executive branch maneuvers. The legal basis for the courts to do something about this remains somewhat vague and unsettled, but the obligation under Article III to ensure that lawsuits are real cases or controversies between actually adverse parties is a serious one.

Anyway, Judge Williams required Trump and the IRS to file responses by this Wednesday, May 20, on whether she should toss the case. Trump obviously did not expect a favorable result, so he had a fairly strong incentive to take his pursuit of compensation elsewhere.

The bad news is what Trump is doing instead. Payment of money by the government, at least on this scale, can’t just be done quietly. There has been speculation that Trump was assembling a broader proposal to create a $1.776 billion settlement fund (and yes, the dollar figure is a very Trump touch) to compensate Trump allies who contend that their rights were violated by the Biden administration. Following the voluntary dismissal by Trump, the DOJ announced that, as part of a deal to drop that case, it will indeed

direct a payment of $1,776,000,000 to an account for the sole use by the Anti-Weaponization Fund (“Designated Account”). The corpus of the Anti-Weaponization Fund’s funding does not represent the value of any claim by Plaintiffs, but rather is based on the projected valuation of future claimants’ claims. . . .

The funds deposited into the Designated Account may be used to pay for per diems, administrative services, funds, facilities, staff, travel, and other support services as may be necessary to carry out the mission of the Anti-Weaponization Fund. The Members of the Anti-Weaponization Fund shall serve as volunteers and gratuitous service providers, without any further compensation for their work on the Fund. They are allowed travel expenses, including per diem in lieu of subsistence, to the extent permitted by law.

The new fund is designed to expire on December 1, 2028. While this doesn’t stink on ice quite as visibly as Trump getting the taxpayers to pay him, it nonetheless looks a lot like a collusive operation to create a slush fund to pay off friends and political allies. And in doing so, it expends nearly $2 billion in taxpayer money that Congress never appropriated.

Is that bad? Absolutely. Trump critics on the left currently say so. But he’s really just taking another page from the left’s playbook.

The classic Trump modus operandi is to look at something crooked that is done smoothly and quietly by the left through sophisticated lawyering on the left — and then imitate it while saying all the quiet parts out loud. This is another instance. Of course, using legislative appropriations and programs to line the pockets of allied groups is an old standby of Democrats, but so is laundering aid to friends and allies through the judicial system — often, with the knowledge that a part of it gets kicked back.

Sometimes, that takes the form of collusive settlements to give excessive compensation for past government actions. Think of Bill de Blasio directing $41 million to the “Central Park Five,” or the example cited in the DOJ’s order: “For example, in the Keepseagle litigation, the plaintiffs alleged improper behavior by the Department of Agriculture over a period of years, and the Obama Administration settled the case by establishing an administrative claims process funded by $680,000,000 paid from the Judgment Fund, which was deposited into a bank account to fund the claims received.”

Sometimes, this is done with consent decrees, by which Democrats bind their successors by agreeing to “settle” lawsuits to have a court order them to do things they wanted to do anyway, and that they now can do without legislative sanction, insulating those policy changes from being altered in the future by the voters.

Sometimes, it has been done through mechanisms such as cy pres settlements, in which the unclaimed money from settled class action lawsuits is handed over to groups unconnected to a lawsuit but who happen to be favored causes of the lawyers and perhaps the judge. As the DOJ press release complains, “In Keepseagle, hundreds of millions of dollars remaining in the fund were distributed to non-profits and NGOs that never made claims.”

In any event, all of this is improper, and it was improper long before Donald Trump came to town. Congress should reclaim its authority over large payments made by the executive branch. And our system should also reject collusive uses of the court system when they don’t involve Trump.