President Trump’s legal team told a federal judge Friday night that no further inquiry can be made into the arrangement that led to creation of the controversial $1.8 billion fund to pay individuals who claim to be victims of government wrongdoing. The filing warned the judge of an immediate challenge in higher courts if necessary to shut down the court’s investigation.
The 22-page filing insisted that there is no evidence that the Trump family and lawyers representing them engaged in any deception or acts of “fraud” against the court in the maneuvering that resulted in the so-called “Anti-Weaponization Fund” to distribute Treasury payments to Trump’s allies.
Although top Trump Administration officials have said repeatedly that the Fund no longer exists and will not be revived, the Trump legal team is moving in several federal courts to head off any ruling on the scheme’s legality. If the Fund is never formally nullified by a court, it might be re-created in some form, according to argument made in courts by critics who are challenging the Fund.
The latest developments in this legal drama came late Friday in the federal court in Miami, where U.S. District Judge Kathleen M. Williams is getting set to decide whether to formally open a potentially wide-ranging investigation into how the case that had been before her had unfolded. That case has a clear link to the Administration’s establishment of the disputed Treasury payments plan.
Before deciding whether to go ahead with a probe, the judge last month ordered the Trump lawyers to answer claims made to her by a group of 35 retired federal judges that there was “grievous” misconduct in the case before her, which amounted to a “fraud” against the court.
In their reply, the Trump team argued that Judge Williams has no authority to do anything further that would keep the controversy alive. They also asserted that the retired judges had no legal right to try to get involved in the case, and that there is no legal basis for the claim of misconduct.
“Any further intrusion into matters beyond the court’s jurisdiction,” the document said, “would warrant extraordinary relief” from higher courts. The threat was that they would ask a federal appeals court (and perhaps the Supreme Court) for the most drastic rebuke that a higher court can make against a lower court–a mandate to stop what it is doing and proceed no further.
The filing added that the Trumps and the Administration “reserve all rights to seek such relief should the court [Judge Williams] depart from the limits of its jurisdiction.”
The Miami judge has invited the retired judges who raised complaints to file their own legal brief by next Friday in answer to the Trump team. Whether allowing those judges a further role in the case would prompt the Trump team to take its opposition to a higher court was not clear from the Friday night filing.
The intense controversy over the “Anti-Weaponization Fund” has been unfolding since January, in hearings and political challenges in Congress, in court proceedings, and in behind-the-scenes planning by top Administration officials and the Trump legal team. It began with the lawsuit filed in January in Judge Williams’ court by Trump, two of his sons and their main business firm, claiming that they had been wronged by the Internal Revenue Service’s illegal disclosure of their private tax records. Before that lawsuit (Trump v. IRS) could proceed, however, the Trumps and the Administration agreed to settle it out of court, and then – as part of the settlement – agreed to set up the “Anti-Weaponization Fund.”
It appears that, at least since mid-April, Judge Williams has had doubts about whether the case of Trump v. IRS involved a genuine legal dispute, or whether it was a manufactured lawsuit with other purposes than punishing the IRS for disclosures of the tax records. (The Constitution itself allows federal courts to decide only actual legal conflicts, not abstract legal theories or frivolous claims of a dispute. Federal court rules enforce that restriction.)
The Trump lawyers had asked for a delay in the proceedings because, they told the judge, they were engaged in “discussions designed to resolve this matter.” Reacting, the judge chose not to grant a delay, but instead raised the question of the genuineness of the dispute. She noted that President Trump was on both sides of the case, with him and his family on one side and, on the other side, Trump as President acting as IRS’s superior. “It is unclear,” the judge said in an order, “whether the parties are sufficiently adverse to each other” to satisfy the constitutional requirement.
Two days before the two sides were to file legal briefs on that point, the Trump lawyers notified the judge that the case had been settled out of court, so Trump v. IRS should be dismissed outright.
The judge promptly closed the case, but noted that there remained “an outstanding question” of whether the lawsuit was really adversarial. Nine days later, the group of 35 retired federal judges entered the controversy, claiming that they had a legal right to raise the question of the genuineness of the lawsuit. They argued that the lawyers’ maneuvering had amounted to a “fraud upon the court.”
The retired judges raised a series of questions about the legality of the “Anti-Weaponization Fund” as an outgrowth of the settlement of the Trump lawsuit, but they said the judge need not decide those questions until after she had reopened the case and investigated the issue of her court’s jurisdiction. They also suggested that the Fund should not be put into operation “while the court completes the inquiry that was derailed by the voluntary settlement.”
The Trump team’s Friday night filing vigorously contested the legal right of the retired judges to have any role at all in Judge Williams’ investigation, and urged her to swiftly deny the request for reopening the case. The retired judges’ complaints, the new brief contended, are actually political objections to the Fund and are not about a case in which they are not, and could not be involved.
It is now up to the Miami judge whether to respond promptly to the Trump team’s arguments, or to wait until she hears further from the retired judges.
Meanwhile, judges in other federal courts are pondering whether they should move ahead and decide for or against the legality of the Treasury payment scheme. The controversy is developing rapidly.
