The ‘Anti-Weaponization’ Slush Fund Is Not Dead

The so-called Anti-Weaponization Fund was a point of contention at last week’s Senate confirmation hearing on President Trump’s nomination of Todd Blanche to become attorney general. Contrary to Blanche’s testimony, the fund is not a moot point, a fact that was elucidated through questioning by Senator John Cornyn (R., Texas). (I discussed other aspects of the confirmation hearings of Blanche and Jay Clayton — the nominee to be director of National Intelligence — in a post last week.)

Essentially, this is a slush fund generated by the “settlement” of a collusive lawsuit in which President Trump, the plaintiff, fully controls the defendants — the IRS and other executive agencies and officials. Indeed, this is why there was a settlement.

The case arose out of the leaking of confidential tax information by an IRS contractor — not only President Trump’s information but that of thousands of other mostly rich, prominent taxpayers. The crimes occurred on President Trump’s own watch (during the first term), and though the contractor, Edward Littlejohn, was eventually prosecuted, Trump, his elder adult sons, and the Trump Organization did not file a lawsuit seeking damages from the government during the Biden years — notwithstanding that the statute of limitations for making such claim is two years. The Justice Department, with Blanche steering the ship (mostly as deputy AG), aggressively posited the government’s defenses, including the statute of limitations, against other taxpayer claimants. Yet, for some reason — I can’t imagine what it may have been — the DOJ did not submit any opposition to Trump’s lawsuit. Rather, the DOJ just alerted the court that a settlement had been reached.

Mind you, in the lawsuit against the government, Trump claimed $10 billion in damages. As I’ve previously explained, though he was certainly victimized, that was a ludicrous damages claim. Moreover, as pointed out by Judge Kathleen M. Williams (the Obama appointee to the federal district court in South Florida who has presided over the case), the controlling statute, Section 7431(c) of the tax code, provides for presumptive damages in the amount of just $1,000 for each act of unauthorized disclosure. (The amount could be higher if the plaintiff can prove greater actual damages; having won reelection in 2024, Trump would have been hard pressed to show damages had he been challenged by the DOJ to do so; in any event, the $10 billion claim is outrageous, as is the nearly $1.8 billion for the slush fund.)

The settlement called for the creation of a gimmicky $1.776 billion pot, which the Trump administration intended to tap for payouts to January 6 Capitol riot defendants and others prosecuted by the Biden Justice Department — consistent with the Justice Department’s overarching mission in the second Trump term to discredit all Biden DOJ prosecutions as corrupt and suspect, the better to maintain that the two cases the Biden DOJ brought against Trump were complete fabrications. (As we’ve detailed for years, the Biden DOJ prosecutions of Trump were choreographed in a manner designed to influence the outcome of the 2024 election, in violation of DOJ rules; they were also, however, based on significant misconduct by Trump — the corrupt attempt to reverse the 2020 election result, the illegal hoarding of classified intelligence, and the obstruction of a grand jury investigation.)

The president, of course, has already pardoned and granted commutations to the January 6 defendants, including hundreds who assaulted police and/or violently stormed the Capitol. This was deeply unpopular (as was Blanche’s attempt to confer immunity to Trump from future tax audits, which I’ve further discussed here). Naturally, then, the thought of, in addition, transferring taxpayer funds to these people was met with hostility on Capitol Hill — even among Republicans who’ve generally turned a blind eye to the president’s abuses of the pardon power and other executive authorities. The blowback was sufficiently severe that, within a few days, Blanche testified in a House hearing that the Anti-Weaponization Fund would not be moving forward.

Nevertheless, President Trump has continued to state publicly that he wants to pay settlements to the January 6 defendants and that the fund he sought to create, and that his subordinate agencies declined to oppose despite substantial legal grounds to do so, was a worthy initiative.

This is relevant because Blanche has declined to memorialize in writing his insistence that the Anti-Weaponization Fund is dead and that there are no plans to revive it. He repeated those assertions at his confirmation hearing, protesting that there is no point in performing an unnecessary act. Of course, if the acting AG is being forthright, it would require no effort to put in writing what he has repeatedly represented orally. But that aside, he’s simply wrong in stating that writing it is unnecessary or would be pointless. Senator Cornyn’s questioning highlighted why.

As noted above, settlement agreement executed by Trump and the government provided for the establishment of the fund (see settlement Agreement, §3,para. C, and §§ IV- V). It also expressly states, in Section VIII (“Modification”): “This Settlement Agreement may be modified only with the written agreement of the parties.” Hence, according to the unambiguous text of the Trump-orchestrated document that created the Anti-Weaponization Fund, that fund can only be rescinded with finality if there is a written modification agreement signed by the parties — by counsel for Trump, the Justice Department, and the IRS — the parties that executed the settlement agreement.

Presumably, Blanche is stating that his oral representation is sufficient because he has reason to know (as we all do) that the president will refuse to agree in writing that the fund is no longer operative. Moreover, Blanche would not want to issue a written representation of his own because that would only invite Democrats to highlight that such a writing is not binding, under the settlement agreement’s terms, unless Trump also agrees in writing (at least through his lawyer).

Absent such a modification agreement, however, the Anti-Weaponization Fund is still viable and could be revived at any time, despite Blanche’s insistence to the contrary. In the interim, Congress should enact legislation directing that no public funds may be allocated from the Justice Department’s judgment fund or any other executive branch source to pay financial settlements to January 6 defendants.