The Art of the Deal cont’d, cont’d

[I am assuming that you all know the basic background of the Slush Fund “Settlement”; my earlier discussions are here and here.]

Things are definitely heating up on the Slush Fund front.

Even for a President for whom courtroom losses are a depressingly regular occurrence[1], and even putting aside the Order from D.D.C. requiring him to take his name off of the Kennedy Center, Friday was a tough day for our President.

First, in Floyd et al v. DOJ, the district court (ED VA, Judge Brinkema) enjoined the DOJ from “taking any further action pursuant to the creation or operation of the Anti-Weaponization Fund, including the transferring of money to the Fund; the consideration of any claims submitted to the Fund; and the disbursing of any funds from the Fund.”[2]

And then a second court (SD FL, Judge Williams), re-opened the Trump v. IRS case (in which Trump had agreed to a voluntary dismissal of his claims), based on …

“… grievous allegations that [Trump] voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that was collusive from the start and was only filed to provide the imprimatur of legality for an unlawful settlement.[3]“ The court further ordered Trump to file a response to those allegations by June 12, “detailing his “position on . . . (1) the charges of collusion and whether the Parties are truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the victim of a fraud.” (Emphasis added)

Do stay tuned. This is getting very interesting and is, potentially, very important. Coming at a time when our President is already in a weakening political position – an unpopular war, inflation, etc. – this looks like it may generate some push-back from Republicans previously willing to toe the MAGA line. The decision of the Republican Senate leadership not to vote on Trump’s priority immigration budget before adjourning a couple of weeks ago was widely interpreted as a mini-revolt of sorts against the Fund, and Republican Senators have been unusually vocal in their condemnation of the Fund.*

*From Sen. McConnell (“Utterly stupid, morally wrong”) to Sen. Tillis (“stupid on stilts”) to Sen. Cruz (“a galactic blunder”) to Majority Leader Thune (“I’m not a big fan”).

My crystal ball is no clearer than anyone else’s, but here are my predictions:

(1) The Anti-Weaponization Fund will never pay a nickel to anyone.

(2) Todd Blanche’s days as Attorney General are numbered. This was all a pretty clever scheme to set up a Trump-controlled slush fund plus an immunity from any and all claims the IRS might be able to bring against our President and his family.

That immunity is a nice little bonus that was somehow omitted from the original “Settlement Agreement,” an omission Blanche corrected in an “Addendum” dated just one day after the “Settlement Agreement” was executed.  As alert readers may have noticed, the immunity has absolutely nothing to do with the “case” that Trump and the IRS were supposedly “settling”.

And Trump would get all of this without anyone other than Donald Trump and Todd Blanche doing anything!  No silly congressional “authorization” or “appropriation” needed!

It has Blanche’s fingerprints all over it, and it looks like he may have been too clever by half. He has, rather than enriching Donald Trump, gotten him into some pretty hot water, and at the moment, at least, it doesn’t seem as though the money spigot will ever turn on. If Blanche were hoping that this bit of legal legerdemain would help convince our President to remove the “Acting” from his title, I think he will be disappointed.

Memo to Republican senators: This really is a good issue to take a stand on. He’ll primary you anyway, whether you lick his boots or not; just ask John Cornyn. Seems like a good time to stand up for the simple principle that even a President can’t just take tax money for his own personal purposes.

[1] As I have said many times – because it bears repeating: Trump has lost orders of magnitude more cases in court in a year-and-a-half than any of his predecessors in their complete terms. Indeed, though I doubt that there’s sufficient data to test this hypothesis, I wouldn’t be at all surprised if he has already lost a greater number of cases than all of his predecessors combined. Ask your AI agent to list all of his losses if you think I’m exaggerating.

[2] Plaintiffs in this case are “former career Assistant U.S. Attorney and January 6th prosecutor Andrew Floyd, Professor John Caravello, City of New Haven, the National Abortion Federation [and] Common Cause,” according to plaintiffs’ counsel’s website (Democracy Now).  Their claim is that “the creation of the [Anti-Weaponization] Fund violates the U.S. Constitution, exceeds executive authority, unlawfully bypasses Congress’s exclusive authority over federal spending and appropriations, and violates the Administrative Procedure Act.”

One difficult issue in this case, and one that will surely be raised by the DOJ in its responses, is whether plaintiffs have standing to object to the creation of the Fund. I’m no standing expert, but it looks like a tough hill to climb, and I’m curious to see how the plaintiffs frame their argument that they have standing to bring these claims.

Interestingly, Public Citizen has filed a suit containing similar substantive claims in SD CA, on behalf of Allison Gill. Gill, according to the Complaint, was a vocal Trump critic who was targeted by the government and improperly subjected to a criminal investigation in 2019. The Complaint continues:

Plaintiff has been the subject of actions taken by the federal government that could constitute “Lawfare” or “Weaponization” and may be entitled to compensation and an apology from the Fund. Plaintiff thus has an interest in the Fund’s establishment and operation, including an interest in ensuring that the Fund is legally sound, that Lawfare and Weaponization are appropriately defined to cover Plaintiff’s claims, and that the procedures and standards through which claims are considered are fair and equitable.

It’s a nice bit of legal jiu-jitsu – people subject to Trump’s “weaponization” can sue and assert standing based upon their interest in being compensated by Trump’s Fund!

[3] The allegations are contained in a Motion submitted to the court last week by 35 retired federal judges. [See here, and my discussion here]. According to the court’s Order re-opening the case, among the allegations contained therein are

“. . . the fact that the settlement in question includes a ‘three-paragraph addendum’ . . . [that] purports to ‘forever bar and preclude’ the United States from pursuing claims that could have been [otherwise] asserted [against] Plaintiffs,’), and the fact that Defendants did not ‘even try[] to defend against Plaintiffs’ claims’ despite their active opposition to nearly identical claims in other litigation. Finally, the non-party movants assert that Plaintiffs’ claims were “clearly untimely” and therefore untenable.”