Where Have All the Good Lawyers Gone?

I continue to find one small detail of the Slush Fund affair (Slushfundgate?) of particular interest.

As you may recall, our President’s suit against the IRS was voluntarily dismissed on May 16.

Two days later, on May 18, the parties executed a “Settlement Agreement.” In that Agreement, the DOJ* agrees to issue “a formal apology” to our President, and “the Attorney General of the United States agrees to create the [$1.776 billion] Anti-Weaponization Fund, subject to the terms and conditions described herein.”

*The “Settlement Agreement” was signed “for the United States” by Associate Attorney General Stanley Woodward. The DOJ was, presumably, acting in its capacity as counsel to the defendant (I.R.S.).

Daniel Z. Epstein, counsel to the Plaintiffs (our President, his two sons, and the Trump Organization), is the other signatory.

In exchange for all that (the apology and the Fund), Trump and the other Plaintiffs agree to:

RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE Defendants [the I.R.S.] and the United States from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney’s fees, expenses, and/or interest, that – as of the Effective Date – have been or could have been asserted by Plaintiffs in the Case or the Pending Agency Claims, by reason of, with respect to, in connection with, or which arise out of, matters in the Case or the Pending Agency Claims. [Emphasis added]

Curious, no?  On several grounds.

First: Trump releases all his claims against the IRS? That doesn’t sound like Trump.  Given that the whole undertaking is patently a sham – Trump “settling” with Trump — why would Trump give away anything at all? Just to make it look like there’s an actual “exchange” taking place?

And while it might look as though Trump is giving the “other side” something of value, he isn’t.  Two days before the “Settlement Agreement” was executed, his claim was dismissed, at his request, with prejudice. So when he sits down to “negotiate” his “Settlement Agreement” on May 18th, sitting across the table from his reflection in the mirror, he’s already barred from ever raising those claims again.  So his “waiver” is entirely redundant and meaningless.

And notice: the “Settlement Agreement” doesn’t make any reference at all to the dismissal of Trump’s claims. That’s also a little odd. Ordinarily, when parties agree to settle ongoing litigation, their Settlement Agreement will say something like:

“Plaintiff promises to voluntarily dismiss his claims against the Defendant, in exhange for the Defendant’s promise to [do something, or pay something].”

The withdrawal of Plaintiff’s claim is a big part of the consideration flowing between the parties, which is what makes the Settlement Agreement an enforceable contract; the parties are exchanging things of value.

Not so, here. Trump can’t promise to drop his claims against the IRS, because he’s already dropped them.

And notice: in the “Settlement Agreement,” Trump waives any claims he might have against the IRS. It does not say that the IRS waives any claims it may have against Trump.

But the very next day (May 19th), this curious document appeared on the DOJ website. It simply states, with absolutely no additional explanation, that

The United States RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs from, and is hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, including injunctive, monetary, damages, tax payments, debt relief, costs, attorney’s fees, expenses, and/or interest, that – as of the Effective Date – have been or could have been asserted by the Defendants (i.e., the IRS) against any of the Plaintiffs or related or affiliated individuals . . . [Emphasis added].

This document – untitled, and with nothing at all of substance other than this waiver – was signed by (a presumably shame-faced and embarrassed) Acting Attorney General Todd Blanche.

Did Blanche just forget to have this clause included in the “Settlement Agreement”?! There’s no additional consideration coming from the Plaintiffs in exchange for this waiver of the potential United States claims; so its either just a little gift (“From the People of the United States, in Recognition of Your Brilliant Leadership!!!!”), or it was supposed to be included in the Settlement Agreement but was inexplicably left out.

And that would constitute incompetence of truly monumental proportions. Did the Acting Attorney General not read the (two-page!) Settlement Agreement between the sitting President (for whom he works) and the IRS? Or he did read it over, and fail to notice that the immunity he thought was going to be in there for the President was missing? Is it really possible?

Sure looks that way, doesn’t it?

Here’s how I think it all went down.  During the negotiation sessions over the “Settlement Agreement,” where the hard bargaining between Trump and Trump was taking place, Trump turned to Todd Blanche, who was there as counsel to the IRS and to the President, and said:

“Draft up a Settlement Agreement – and don’t forget to put in that waiver!!”

Blanche turns to his deputy, Stanley Woodward – remember, it was Woodward who actually signed the “Settlement Agreement” on behalf of the United States – and said:

“Woodward, draft up the Settlement Agreement. And don’t forget to put in that waiver!!”

And Woodward thinks to himself:

“What waiver?”

He figures they must be referring to a waiver by Trump for all claims that Trump may have against the IRS. After all, one would expect a Settlement Agreement to contain a waiver running in that direction, one where Plaintiffs promise to drop their claims and not to sue the Defendants as part of the overall settlementy deal. He inserts such a clause into the Settlement Agreement.

Astonishingly, nobody notices the omission until the day after the Settlement Agreement is signed.

Keystone Kops lawyering at its best, or worst.

Today’s NY Times happens to have an article about the exodus of lawyers from the federal government. [“Trump Administration Sees Striking Exodus of Legal Talent”] DOJ has lost 21 percent of its lawyers in a little over a year.  AbovetheLaw.com has been reporting on this for a while, and the evidence is indeed starting to accumulate that the quality of lawyering out on the front lines is declining.

Not to worry, though.  Our President reassures us:

The New York Times wrote a story today entitled, ‘Trump Administration Sees Striking Exodus of Legal Talent,’ as though that’s a bad thing, when actually, it’s very good. The people that are leaving are Radical Left Deep State Lunatics, who are destroying our Country, and Weaponizing Government. Many of them didn’t leave, but were fired! The Failing New York Times writes this, but makes it sound like it’s a terrible thing when actually, it’s just the opposite. We want people that will, MAKE AMERICA GREAT AGAIN, not people that are trying to destroy our Country, that were put in by Obama and Biden and, in many cases, they shouldn’t have been representing the U.S.A. in the first place.”