Official Washington was absorbed on Friday in the politics surrounding President Trump’s highly controversial $1.8 billion fund for payoffs from the U.S. Treasury to his allies. In a federal court in Florida – also on Friday — it became clear that the legal feud over the fund is becoming a major constitutional controversy, too.
Since the Trump Administration’s disclosure in May that top government officials had put together the so-called “Anti-Weaponization Fund,” controversy over it has been intensifying, for two main reasons.
First, there is widespread hostility to the idea that any government funds would be paid to people that Trump believes were victimized by criminal charges or convictions by the Biden Administration – including his followers who violently stormed the U.S. Capitol on January 6, 2021.
Second, although the Trump family and their business firm would not be paid anything from the Fund, there is pervasive criticism that the plan would give them a legal promise worth more: a guarantee, literally lasting “forever,” that they would not face any tax audits or any other financial claims by the government.
At this point, there are two unanswered questions surrounding the Fund: has the Administration shut it down in response to criticism, and is the plan legal or not?
In Washington, the controversy is mainly political, because the Fund’s creation may stand in the way of the President’s nomination of Todd Blanche to become the next U.S. Attorney General. (Blanche is Trump’s former private lawyer, the acting head of the Justice Department, and one of the Fund’s architects.)
The President has never abandoned his strong support for the Fund. On Friday, he wrote on social media: “I will always feel that these victims of government abuse should be paid back for what they had endured.” On Saturday, returning to social media, Trump was bolder: He wrote that, if Blanche did not get confirmed now, he would keep him in charge of the Justice Department and would push the Fund forward. “It will immediately be back on the table,” he added, “and I will get it done.”
On Friday, he had talked of possibly having to withdraw Blanche’s nomination until next year, when Senate resistance to Blanche may end with the opening of a new session of Congress. Two Republican Senators who have been demanding that Trump and Blanche promise – in writing — to scuttle the Fund will no longer be in the Senate then, and Blanche may have a better chance of being confirmed.
But the constitutional aspect of the controversy won’t be settled any time soon, and the ultimate fate of the Fund may have to await that outcome. On Friday, private lawyers representing Trump, his two sons and business partners Donald Jr. and Eric, and the family business filed in Miami federal court a 24-page document aiming a broadside constitutional attack on a judge’s ruling questioning the legality of the Fund.
In that ruling on July 13, U.S. District Judge Kathleen M. Williams did not declare explicitly that the Anti-Weaponization Fund is illegal, but she left little doubt that she believed it could not withstand such a test. She ruled that, because the President and his Administration were on both sides of a lawsuit that led to creation of the Fund, the case had been manipulated during the court’s processes and became a sham legal controversy. She found that the parties’ legal interests were the same, so the court case was a collusive deception, pursued in “bad faith.”
The judge specifically ordered the Trumps and their lawyers never to rely on the Anti-Weaponization Fund as if it were a legitimate legal creation. That part of the judge’s order also appeared to prevent them from relying on the long-term grant of legal immunity.
In addition, her ruling set the stage for punishment of two of the Trumps’ private lawyers. She sharply criticized the role she perceived Todd Blanche to have carried out in the Fund deal, and she ordered the Trumps and their lawyers to pay legal fees for groups that had challenged the lawsuit’s legitimacy in filings in her court.
On Friday, the Trumps’ lawyers asked the judge – by next Wednesday – to put her ruling on hold while they pursue an appeal to a higher court. If she doesn’t do so, the lawyers said, they will then go to a federal appeals court to get a postponement.
Here are the constitutional issues that the Trumps’ lawyers are raising:
1. If the President has so much power as the head of the entire Executive Branch of the government, and oversees all of those agencies, can the President ever sue the government in his personal capacity, as Trump has claimed to do? In other words, will any such “private” lawsuit be barred because the President is on both sides of it, erasing any genuine legal dispute? (Under the Constitution, Federal courts can’t decide abstract legal controversies—only actual cases.)
2. If a judge orders (as Williams has) Trump and his family or business or their private lawyers not to take any steps to rely upon the Fund for any legal purpose, will that be a violation of their First Amendment rights? The family claims rights of free speech and the right to pursue legal grievances in court; their lawyers claim the right to continue legal practice without the stain of disciplinary action.
Since January, when the Trumps sued the Internal Revenue Service in Judge Williams’ Miami court, complaining about the public disclosure in news media of their federal tax returns, the judge has doubted that the lawsuit was legitimate. But before she could raise that point, the Trumps and the government settled the suit. At the center of the settlement was the establishment of the $1.8 billion Fund and the immunity grant. The Trumps saw parallels between what they saw as being victims themselves and the legal woes faced by the President’s political allies.
When the judge ruled that the lawsuit was bogus, she cited President Trump’s own official claims that all agencies of government must only interpret legal questions to the White House’s satisfaction. She also relied on recent Supreme Court constitutional decisions that make the President the undisputed leader of the entire Executive Branch – with the power to control the agencies involved in the Trump lawsuit and its settlement.
In her decision, the judge said the dispute was unprecedented, a one-of-a-kind dispute.
Trump’s lawyers argued in their new filing that the Supreme Court has already decided the issue, in a famous 1974 case involving President Richard Nixon. There, the Court unanimously rejected Nixon’s claim that he and a special prosecutor were on the same side when the prosecutor demanded access to White House tape recordings during a criminal investigation into the Watergate scandal. The decision rejected Nixon’s plea and allowed the prosecutor to go ahead with a demand for the tapes. (Nixon resigned before he could be prosecuted or impeached.)
Judge Williams, though, had before her a legal memo from high-profile lawyers from whom she had sought advice, arguing that the Nixon case was different from the Trump case because the special prosecutor who sought the White House tapes was operating with a considerable amount of independence from presidential control.
That kind of differing view of an important past precedent sets the stage for today’s courts to examine the issue on their own. The further unfolding of the Trumps’ case as it moves to higher courts undoubtedly will focus on the issue of Trump’s control of the Executive Branch, when that is at issue in settling a lawsuit that a President supposedly had filed in his personal capacity.
The constitutional issues that the Trumps’ lawyers are now raising over the right of free speech and the right to take a legal grievance to court have now become an additional point of emphasis as the Fund controversy unfolds further in the courts. Both of those First Amendment guarantees have a long history, but the Trumps’ lawsuit could require the federal courts to reexamine what it means when a President is directly involved.
The current conservative majority on the Court has placed special emphasis on analyzing the power of the Presidency, a process that has – for the most part – greatly enhanced that power.
While Trumps’ lawyers’ arguments about Judge Williams’s threat to their professional reputations are likely to gain some sympathy in the higher courts, those may well become less prominent than the constitutional issues surrounding presidential power. Few issues in the constitutional universe of today are as dominant as the distribution of authority among the three branches of the national government.
Judge Williams and any higher courts reviewing her decision will not be the only federal courts dealing with the “Anti-Weaponization Fund” and its ultimate legal fate. A federal judge in Alexandria, VA, is scheduled to hold a hearing on August 14 on a plea by the Trump Justice Department to dismiss another legal challenge to the Fund on technical grounds. That judge, Leonie M. Brinkema, has temporarily blocked any move to implement the Fund. At this stage, the case in Judge Brinkema’s court does not include any issue about the legitimacy of the Trumps’ Florida lawsuit.
