A group of retired federal judges on Friday spelled out a new threat that President Trump, his family and business may lose broad legal immunity for tax debts or other government claims — a shield that they were promised as part of a much-criticized deal with two departments of Trump’s Administration.
The 35 retired jurists, citing new and “stronger” evidence that the entire deal involved deception and fraud, argued that a sitting judge in Miami has vast authority to strike down all of the agreement, including a plan for massive payments to the President’s friends and political allies who believe they were the victims of “weaponized” criminal prosecutions and investigations by the Biden Administration.
In a Florida federal court, District Judge Kathleen M. Williams is weighing the legality of the scheme, and is relying on the retired judges for advice on how to proceed.
The overall plan, unveiled to Judge Williams in May by lawyers for the Trumps and for the Justice and Treasury Departments, is in an uncertain state at this point. Various Trump Administration officials have said that the plan for payouts of $1.8 billion of Treasury money – the so-called “Anti-Weaponization Fund” – has been shut down and will not be revived.
But those officials have not said that the legal immunity grant for Trump, his two adult sons and the Trump Organization business firm has been withdrawn or nullified. That apparently was a key facet of the plan, although it was contained in a separate legal document.
Administration lawyers are trying to prevent any federal court from ruling on the legality of either part of the Fund plan. That may be an effort to protect the immunity promise, and it also may be aimed at leaving open some way for a Treasury payout plan to operate.
Both parts of the scheme drew sharp criticism from the retired judges in the new brief they filed in Miami late Friday night. The entire plan, they wrote, seeks to “give cover for a give-away” to President Trump himself. They added that the Justice Department is now “walking away” from the Fund payouts plan (referring to it as a “huge slush fund”) even as the Department keeps intact the immunity promise.
The brief was aimed at three facets of the scheme: an out-of-court settlement of a lawsuit by the President and his family and business against the Internal Revenue Service for illegal disclosure of private tax returns, relying on that settlement to withdraw any opportunity for Judge Williams to rule, and then turning the settlement into creation of the “Anti-Weaponization Fund” and the immunity promise.
The retired judges claim that all parts of the scheme were designed to manipulate the court proceedings before Judge Williams, resulting in “a fraud on the court.” The brief urged the judge to go forward with a full investigation of what had happened in her court, and since. If she finds that the tactics were illegal, according to the new filing, she has full power to impose some form of punishment on the Trumps, their business, their private lawyers and lawyers representing the Trump Administration in the deal.
The judges did not spell out any specific punishment that they would endorse, leaving that to Judge Williams but with the assurance that her powers are not limited by any federal law because they are based on a court’s “inherent authority” to protect the integrity of course proceedings.
The new filing did stress, though, that – apart from any punishment of people involved – the judge has clear authority to undo all of the maneuvers in her court leading to creation of the scheme and all of its contents.
As part of the effort by the Trumps and the Administration to end all legal challenges to the overall plan, Justice Department lawyers argued to Judge Williams last week that when the case before her was closed, she no longer had any power to do anything further. If she attempted to do so, they threatened to take the issue to higher courts.
In the retired judges’ new brief, they contended that there is as yet no basis for challenging Judge Williams in higher courts. The brief criticized the effort to shut down all of the pending court cases on the Fund, asserting that these steps were taken “to prevent the court from scrutinizing the legitimacy of their invocation of the judicial process.’
Meanwhile, earlier in the day Friday, the Justice Department made a similar attempt to end another challenge to the “Anti-Weaponization Fund” – a case unfolding in a federal court in Alexandria, VA.
The Justice Department told U.S. District Judge Leonie M. Brinkema that the Administration will not make a formal written promise that the Treasury payout plan will not be revived in some form. The Department also warned the judge that, if she pursues further action against the government in this dispute, that would be met by a constitutional challenge to her powers.
High-level government officials, the filing said, should not be diverted from their duties by being summoned to testify in a court case. Any effort to force such testimony, the Department said, would raise deep questions about the constitutional “separation of powers” between the courts and the Executive Branch. Ordering such testimony, the brief added, would be “judicial overreach.”
Judge Brinkema had vowed to press on with a case over the payout plan’s legality, unless top officials personally signed explicit vows not to revive the plan. The judge gave them until Friday to submit those promises.
In their brusque three-page response, the Department said officials have done enough in public statements and other filings in the courts to demonstrate that the controversy over the Fund is now “moot” – that is, without any legal status – and should thus end.
Judge Brinkema is now expected to issue a series of deadlines for further filings, as she moves toward a ruling on the “Anti-Weaponization Fund” legality.
In the case in Miami, Judge Williams has not specified what her next steps will be.
