Two filings in separate slush fund cases last week threaten to reignite the political firestorm in Congress over the fund and its prospective use to handsomely reward January 6 offenders.
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.
Without exactly ordering Justice to do anything, she offered the department an off-ramp: if Acting Attorney General Todd Blanche, Associate Attorney General Stanley Woodward, Jr., and Treasury Secretary Scott Bessent file a declaration, under penalty of perjury, stating that they will not take any action to create or operate the fund and that it “will not proceed in any manner, or under any name,” it would, in her words, “avoid any further litigation in this civil action.”
The alternative, Brinkema made clear, was that she would issue a scheduling order and require DOJ to answer the complaint by July 17.
DOJ filed its response to the offer last Friday. Rather than submit the requested declaration, DOJ argued that the declarations were “unnecessary” in light of Blanche’s unsworn verbal assurances in Congress that the DOJ won’t go forward with the fund. The department argued those words sufficed to moot the case and that Brinkema’s request “implicates serious separation of powers concerns.”
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.
But Blanche and Woodward aren’t peripheral here. Woodward signed the settlement agreement himself, an unusual move clearly meant to impress Trump, and Blanche put his own name on the filings defending it. Having made themselves the line attorneys on this deal, they can hardly now claim their testimony is marginal.
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.
On the other hand, the administration has a weak hand to play for the mootness argument. Their adamant, repeated contention is Blanche’s unsworn verbal assurances that the DOJ won’t go forward with the fund suffice to moot the case. Under any conventional mootness analysis, this isn’t a moot settlement agreement. The test is whether the defendant has shown it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” And the burden falls on the party asserting mootness and is especially “heavy” if based on voluntary dismissal, as it was here.
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.”
Trump here isn’t simply the final authority. He is also the beneficiary of a supposed settlement agreement, which is akin to a contract. That makes it his prerogative to enforce. Until Trump, the actual beneficiary of the settlement, agrees to rescind it, DOJ’s say-so doesn’t make the fund disappear as a legal matter.
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.
That case sits before Judge Kathleen Williams in the Southern District of Florida, where Trump’s original lawsuit against the IRS was dismissed in May after a “settlement” that conjured the Anti-Weaponization Fund into existence.
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.
Far worse for DOJ and Trump’s lawyers, Williams is weighing whether both sides defrauded her with the contrived filing and settlement, a finding that could brand the agreement bogus and expose the lawyers who signed it to sanctions. She hasn’t ruled yet, and she may stop well short of taking on such a bitter fight, with the 11th Circuit in a position to countermand her. But the question is now squarely hers to answer.
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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