It’s a brief pause so the court can hear challenges to the administration’s plan on an expedited schedule. The legal objections face tough sledding.
A federal court in Alexandria, Va., has issued an injunction against the Trump administration’s establishment of the so-called Anti-Weaponization Fund. The two-page order from Judge Leonie Brinkema, a Clinton appointee in the Eastern District of Virginia (EDVa), was released yesterday.
Many of us have argued that the pot of gold at issue — endowed by the administration with $1.776 billion in taxpayer funds, a gimmick to swaddle political payoffs in patriotic array — is essentially a slush fund to reward Trump’s allies (including Capitol rioters) and delegitimize the Biden Justice Department. (See, e.g., our editorial, Dan’s piece, and my posts here and here.) The Anti-Weaponization Fund results from a “settlement” of Trump’s farcical $10 billion lawsuit against himself.
To be more precise, Trump and his elder sons sued the Internal Revenue Service, which Trump controls, for leaking his private tax information — an abuse that occurred on his Trump’s own watch (i.e., during his first term) — and then cut a deal with the Justice Department, which Trump also controls, to set up the Anti-Weaponization Fund, dole it out to his chosen beneficiaries, and simultaneously bathe him in immunity from future tax audits and prosecutions.
The case, Floyd v. Department of Justice, has been brought by self-styled watchdogs led by Andrew Floyd, a former New Haven, Conn., federal prosecutor, along with two left-leaning groups: the National Abortion Federation and Common Cause. They contend that the fund is “lawless” because it was created by a collusive agreement between the president and arms of his own administration, and that Congress — constitutionally responsible for raising and allocating public funds — has not authorized it.
Let’s put aside that the plaintiffs’ nigh certain lack of standing to sue. While I believe their collusion allegation is undeniable, it is unclear to me that Congress has not authorized the Anti-Weaponization Fund — which is not to say lawmakers had specific knowledge of it.
That is, the money is to be drawn from what’s known as the “judgment fund,” a permanent, indefinite appropriation, pursuant to Section 1304 of Title 31, U.S. Code. Congress replenishes the judgment fund as needed to enable the executive branch to pay legal settlements and awards (among other things) — assuming that this authority will not be abused. While Democrats are currently livid over Trump’s machinations, most of them were quite fond of the judgment fund’s opacity when President Obama raided it to pay Iran well over a billion dollars to seal his deeply flawed nuclear deal with the mullahs — without a specific congressional authorization, much less a treaty.
The Anti-Weaponization Fund’s structure is outlined in guidance issued by Acting Attorney General Todd Blanche on May 18. In her order, Judge Brinkema directed that the administration not take any further action to create, operate, or make distributions from the fund. This is a temporary freeze while the question whether a temporary restraining order should be issued against the Anti-Weaponization Fund is litigated. Brinkema set an expedited briefing schedule; the parties will file their briefs by June 10, and there is to be a hearing two weeks from today, on June 12.
Besides the EDVa case, other litigation opposing the fund is pending. A nominally nonpartisan but usually left-leaning group, Citizens for Responsibility and Ethics in Washington, brought a suit in the Washington, D.C., federal district court (CREW v. DOJ). And in the original case in the Southern District of Florida — i.e., Trump v. IRS, the suit the president (in his private capacity) dropped in order to make the settlement with his administration’s IRS and DOJ that resulted in the creation of the Anti-Weaponization Fund — a group of 35 former federal judges, whose standing to participate in fund litigation is even more dubious than that of the plaintiffs in the afore-described lawsuits, have filed an amicus brief arguing that Judge Kathleen Williams, the Obama appointee assigned to the case, need not accept the settlement. They contend it is a “fraud on the court.”
To repeat what I’ve argued, while the establishment of the Anti-Weaponization Fund is a gross abuse of power, I don’t believe court challenges will succeed. For example, the president could have directed the DOJ to set up the fund in the absence of any legal case — to my mind, he only brought a collusive lawsuit against the IRS in an attempt to give the funding scheme a patina of judicial approval; he then dropped the case when it became clear that Judge Williams, an Obama appointee, was not going to play along. Since a lawsuit is not a necessary precondition for a claim on the judgment fund, I don’t see how Trump’s bringing (then dropping) a lawsuit one can prevent him from using the judgment fund to pay claims.
And again, since Congress, however imprudently, has authorized the executive branch to control a limitless judgment fund, I don’t see how private litigants who object to the settlement on policy grounds, but suffer no concrete harm themselves, can sue. That doesn’t mean they’re wrong; it means that not all wrongs are judicially redressable.
If the Anti-Weaponization Fund is going to be stopped, that has to be done by Congress — and done by big enough margins to override a certain Trump veto. And if action is to be taken against any executive agency or official over the fund, that, too, can only be done by Congress. I refer, of course, to what should happen, not what will happen.