A long-term legal immunity for President Trump, his family and business, given to him by his own Administration, appears to be intact and undisturbed, new federal court filings seem to indicate.
The promise of immunity has been linked directly to Trump’s highly controversial plan to use about $1.8 billion in U.S. Treasury money to compensate individuals and organizations that supposedly were harmed by Biden Administration criminal investigations and prosecutions. The compensation plan was called “the Anti-Weaponization Fund.”
The plan for the Fund has now been officially shut down and will not be revived later, according to legal briefs filed Friday by Justice Department lawyers in two federal courts, where the Fund is facing broad challenges under the Constitution and federal laws.
The two briefs together run to 53 pages and make no reference at all to the immunity promise. The omission might be interpreted to mean that the demise of the larger plan has not affected the unusual immunity provision.
The overall project was announced by Administration officials last month, but the initial documents said nothing about legal immunity. The day after that, however, Acting U.S. Attorney General Todd Blanche released a one-page memo, disclosing what it called a “relevant requirement for the Fund.”
That phrase seemed to suggest that the overall project clearly intended the immunity to be a necessary part of the plan. The Fund was set up after Trump closed a $10 billion lawsuit against the Internal Revenue Service in a dispute over illegal disclosure of some of the Trump tax records.
In the Trump lawsuit, the Plaintiffs were Trump, his sons Eric and Donald Jr., and the Trump Organization – the flagship of a vast business empire. Although they would not be eligible to receive any money from the Anti-Weaponization Fund, the addition of the immunity grant appeared to be an inducement for their agreement to the overall plan.
The immunity paragraph in the Blanche memo is a single, uninterrupted sentence totaling 176 words. It is somewhat awkwardly worded, but it translates as a lifetime guarantee that Trump, his two sons and the Trump Organization or others affiliated with them will never have to answer for back taxes or other financial claims by the federal government, if those obligations arose before the date the deal was created.
The sweep is immediately apparent: the opening phrase, using some capitalized words, reads this way: “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….” It goes on from there in dense legalese spelling out what is being insulated from government claims.
Among critics of the overall scheme, the immunity promise is as controversial as the money transfer arrangement, and is challenged in some of the handful of lawsuits now pending against the Fund.
The Justice Department briefs that omit any reference to immunity are plainly designed to persuade the judges involved to dismiss all of the challenges. What appears to be the briefs’ main point is that all of the lawsuits no longer have any legal substance (they are “moot”) because the Administration, reacting to heavy political criticism, has now shut down the Fund and “it is not going forward.”
Blanche told Congress last week that the project was being abandoned, but he refused to put that in writing. By stating it in a legal brief, government lawyers are taking that formal step, which binds the government legally. (Blanche’s Congressional testimony did not clarify whether the immunity guarantee would be erased with the closing of the Fund.)
Friday’s Justice Department briefs argued that the judges should not allow themselves to be drawn into the “hurly burly of politics,” which the attorneys said was where it became apparent that the Fund project had to be ended. The Fund arrangement has drawn some bitter criticism by Republican lawmakers, too.
Besides those broader arguments, the briefs challenged the federal courts’ basic authority under the Constitution to decide the challenges – technically, that it has no jurisdiction. The lawyers contend that none of those who sued can show that they had a legal right to sue, and that all of the claims are premature because nothing has been done yet to establish the Fund and no activity has occurred. They also asserted that none of the legal claims has any merit.
The court challenges are moving rapidly, and this coming week may be a crucial one. A federal judge handling a case in Washington, D.C., is already set to hold a hearing next Wednesday. A federal judge in Alexandria, VA, who already has temporarily blocked the Fund from coming into being, will be holding a separate hearing on Friday.
Friday will also draw attention to a pending case in a federal court in Miami, where the Trump lawsuit against the IRS was filed and then settled to make way for establishing the new Anti-Weaponization Fund.
The Trump legal team is due to file a legal brief there on Friday, but much of that brief is expected to make an effort to persuade the judge that the Trump lawsuit against the IRS was a real legal dispute and was not instead only an attempt to manipulate the court into ending the case so the Fund could be created. The judge has said she is concerned that there may have been “a fraud on the court,” which could lead her to impose significant sanctions on the lawyers involved for Trump and the government.
It is not likely that the Miami case will simply go away, as the Justice Department lawyers are seeking as the fate of the other cases. Even though the compensation plan has been scuttled, the ethical question around the lawyers’ conduct in Miami is not necessarily a dead issue.
So far, all of this legal activity is occurring in the first level of the federal system, but some parts of it may later work their way to appeals courts and maybe even to the Supreme Court.
