In a case challenging the fund brought in the Eastern District of Virginia, Judge Leonie Brinkema had handed the Department of Justice a clean way to close out Floyd v. Department of Justice, the case challenging Trump’s $1.776 billion Anti-Weaponization Fund.
The alternative, Brinkema made clear, was that she would issue a scheduling order and require DOJ to answer the complaint by July 17.
That separation-of-powers argument is the filing’s most blustering move, and its weakest. DOJ leans on so-called apex-doctrine cases holding that senior officials shouldn’t get dragged into litigation when their testimony is available through other channels. That doctrine is meant to keep litigants from harassing busy executives over matters peripheral to their actual duties. It’s not a real separation-of-powers principle.
Moreover, DOJ’s obstreperous response keeps the focus on the question it doesn’t want to answer rather than the question it does. Although Brinkema entered a preliminary injunction not long after receiving the complaint, the five plaintiffs have an uphill road to climb to establish standing. The plaintiffs are two individuals, a city (New Haven), and two public-interest organizations. They’ve been harmed by the administration’s zealous immigration initiative but their claims of individualized injury based on the slush fund itself are tenuous.
Blanche’s unsworn assurances, coupled with the refusal to formalize them, don’t begin to cut it legally. For starters, Blanche already has made clear that Trump’s every wish is his command. And Trump continues to insist that he favors the fund: He recently told Meet the Press that “if it was up to me, I’d pay them the kind of money that they deserve.”
More fundamentally, the legal question on the table is not what Blanche said to Congress. It’s whether those words, combined with DOJ’s adamant refusal to put anything in writing, are enough to make the settlement agreement moot as a matter of law. Brinkema is well within her rights to conclude they are not. The same day DOJ filed its response to her, a group of 35 retired federal judges filed a brief replying to a brief Trump had filed for the plaintiffs in the case, including his sons and companies.
The 35 judges’ reply brief treats DOJ’s abandonment of the fund not as evidence the dispute is over, but as fresh proof that it was never real to begin with. As they put it, the fact that one “side” of the supposed dispute could unilaterally scrap a $1.776 billion settlement term without so much as a revised written agreement makes it clear the parties colluded, in which case a federal court can’t hear it. In other words: The very retreat DOJ is offering Brinkema as proof of mootness, retired judges in Florida are offering Williams as proof of collusion.
Two weeks ago, in a separate filing opposing the plaintiffs’ TRO motion, DOJ made essentially this same mootness case on the same Blanche testimony, and I wrote at the time that the argument was headed straight into a buzzsaw. Its strategy since has been to tell Congress and the courts “no worries” because the fund is dead. But that’s far from true as a legal matter, and it’s also no response to the possible fraud on the court that the lawyers perpetrated.
The fund collapsed last month under bipartisan political pressure, after Republican senators balked at funding compensation for people who assaulted police officers on January 6. Enough of them seemed willing to take Blanche’s word for it and drop the subject. But if the courts reject DOJ’s mootness claim, that reopens exactly the controversy Blanche’s testimony was supposed to close. The fund would be undead, again the living nightmare that Republicans and the administration thought they had buried.
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