The President Who Sued Himself
Donald J. Trump is famously the most litigious of all American presidents. From his years as a New York real estate mogul through both terms in the White House, he has used litigation not merely as a legal tool, but as a political weapon. In 2023, a federal judge fined him and his attorney, Alina Habba, nearly $1 million, for filing a “completely frivolous” lawsuit against Hillary Clinton and 30 other defendants. The judge described Trump as “a prolific and sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries.”
During his second term alone, the Litigator-in-Chief has initiated lawsuits, or continued pursuing previously-filed lawsuits, against a lengthy roster of people and institutions he regards as political or personal adversaries. The targets have included an Iowa newspaper and pollster who showed him trailing in the state; CBS, for editing an interview with Kamala Harris; Bob Woodward, for publishing interviews with him in an audiobook; the Wall Street Journal, for alleging that he submitted a note for Jeffrey Epstein’s 50th birthday book with a drawing of a naked female; the BBC, for rearranging portions of his Jan. 6 speech in a documentary; and the Pulitzer Prize board, for declining to rescind a 2018 award to the New York Times and the Washington Post in relation to their reporting on Russian interference in the 2016 election. He has also strong-armed Twitter (now X), Meta, and YouTube into paying (after he returned to the presidency) a combined $60 million to settle his lawsuits stemming from the suspension of his social media accounts in the aftermath of the 2020 election.
Against that backdrop, perhaps it should come as no surprise that one of the most breathtakingly corrupt episodes of Trump’s second term began with a lawsuit he filed against the very government he now controls. On Jan. 29, 2026, Trump—joined by his two eldest sons and the Trump Organization—filed a suit against the IRS and the Treasury Department. They claimed that a former IRS contractor, Charles Littlejohn, had illegally disclosed Trump’s tax return information to the New York Times and other media outlets. Trump said any money he makes off of this suit would go to charity.
As it turns out, his political allies are the “charity,” and American taxpayers are the donors.
Earlier this week, the Justice Department announced that Acting Attorney General Todd Blanche had established a $1.776 billion dollar fund, ostensibly as part of a settlement agreement in Trump v. IRS. The fund—drawn entirely from the federal Judgment Fund, a permanent congressional appropriation used to pay court settlements against the United States—will be used to dispense taxpayer money to people who suffered from purported Democratic “weaponization” and “lawfare.” While Trump is not expected to receive compensation from the fund himself, money will be doled out by a five-member board he effectively controls, operating under procedures that need not be disclosed, with the identities of recipients potentially kept secret.
The name Trump chose for this instrument of partisan self-dealing—conjured by a president suing his own government and settling with himself, a product of the politicized use of the legal system he claims to deplore—is “The Anti-Weaponization Fund.”
What follows is a broad-strokes primer on Trump’s settlement agreement, the legal framework for the so-called “Anti-Weaponization Fund,” and what—if anything—can be done to challenge it. And we also discuss Blanche’s order—one day later—purporting to extend vast immunity from government liability to Trump and his family.
What’s the Backstory?
While working at the IRS in 2019 and 2020, Littlejohn stole tax return information associated with thousands of wealthy or high-profile Americans, including the Trump family, which he then leaked to the New York Times and ProPublica. Both media outlets used that information to publish stories about the tax returns of Trump and others. Littlejohn was later prosecuted in connection with the unauthorized disclosures and sentenced to five years in federal prison.
Trump’s civil suit against the IRS had at least a scintilla of merit, but it also had serious weaknesses that almost certainly would have led to its dismissal.
For one thing, the complaint sought a laughably inflated $10 billion in damages. More crucially, however, Trump filed his suit past the two-year statute of limitations, which begins to run when a plaintiff discovers that the IRS disclosed his tax information without authorization. The complaint claims that Trump didn’t discover the breach until Jan. 29, 2024, when the IRS sent a letter notifying him that Littlejohn had been charged with disclosing his returns. But Littlejohn’s role in leaking Trump’s returns was publicly known well before that date. Indeed, when Littlejohn pleaded guilty in federal court in October 2023, one of Trump’s own attorneys reportedly addressed the court on behalf of her client, describing the leak as an “egregious breach by an agent of the IRS...for political gain.”
It is difficult to claim ignorance of a disclosure that your own lawyer publicly condemned on the record in federal court.
Nor was the statute of limitations the only problem. In suits brought by other Littlejohn victims, the Justice Department has argued—including during Trump's own second term—that the IRS bore no responsibility for the leak because Littlejohn was a contractor rather than a federal employee. The IRS did settle a similar case brought by hedge fund billionaire Ken Griffin, but Griffin received only a formal apology, no money.
All of which is to say that the government, in any normal administration, could have walked into court and won this case.
But there was nothing normal about this lawsuit, because the government Trump was suing is his. The IRS and the Treasury Department are executive agencies that report to him. He appoints and removes their leaders. And the Justice Department lawyers assigned to defend those agencies serve at the pleasure of the president. Pursuant to an executive order that Trump issued one month after returning to office, they are prohibited from advancing any legal position on behalf of the United States that “contravenes the President or the Attorney General's opinion on a matter of law.”
Trump, in short, was essentially suing himself, and the lawyers tasked with defending the other side worked for him.
The judge overseeing Trump’s suit, Kathleen Williams of the U.S. District Court for the Southern District of Florida, an Obama appointee, was troubled by this. In April, after the parties jointly moved to pause proceedings for 90 days to engage in settlement discussions, Williams declined to simply grant the motion. Instead, she raised the question of whether she had jurisdiction over the case at all.
At the heart of her concern was whether the case involved a genuine dispute between the parties. Article III of the Constitution limits the jurisdiction of federal courts to actual “cases or controversies.” A key element of this “case or controversy” requirement is adverseness, meaning a real dispute between two parties with opposing interests. If the parties aren’t sufficiently adverse, a federal court has no power to hear the case.
In her April order, Judge Williams expressed doubts about whether Trump’s case against his own government could satisfy the “case or controversy” requirement. To that end, she cited the executive order requiring Justice Department attorneys to adhere to the president’s opinion on matters of law. And she pointed to Trump’s own public remarks about the suit. Two days after filing the complaint, he had told a reporter: “I’m supposed to work out a settlement with myself.”
Williams ordered both Trump's personal lawyers and the Justice Department to brief the threshold question of whether a genuine case or controversy even existed, and scheduled a hearing for May 27. Recognizing that neither party to the litigation could be relied upon to argue against its own interests, she also appointed a team of outside lawyers as amici curiae to assist the court in analyzing the jurisdictional question. The amici curiae included attorneys from the elite firms Selendy Gay, Debevoise & Plimpton (including former U.S. District Judge for the Eastern District of New York John Gleeson), and Munger Tolles & Olson, including former Solicitor General Donald Verrilli.
In a brief filed May 14, the amici stopped short of recommending outright dismissal of the case, noting that the factual record was not yet fully developed. But they argued that the constitutional requirement of adverseness is absent when one party effectively controls the other, and they catalogued the ways in which Trump controlled the defendant agencies and the Justice Department. The amici also suggested that the court should obtain more information before allowing the case to proceed—including whether the ongoing settlement negotiations were being conducted at arms length and whether any steps had been taken to insulate the Justice Department lawyers assigned to the case from presidential direction.
The parties’ briefs on the jurisdictional question were due May 20. They never filed them. On May 14—the same day the amici submitted their brief to the court—ABC News reported that Trump was poised to drop his suit against the IRS in exchange for the creation of a $1.7 billion dollar fund to compensate allies who claim they were wrongfully targeted by the Biden administration.
That turned out to be right. Just days later, on May 18, the Justice Department issued a press release announcing that Acting Attorney General Todd Blanche had established a so-called “Anti-Weaponization Fund” as a part of a settlement agreement in Trump v. IRS. According to the press release, the $1.776 billion fund would be used to compensate people who “suffered weaponization and lawfare.” The same day, Trump’s personal attorney filed a notice of voluntary dismissal to drop his case against the IRS.
Was this the plan all along? Or was Trump actually planning to pursue his collusive lawsuit against the IRS, and hastily switched gears to craft a “settlement” benefiting third-party cronies only when the judge had questions? At this point, we do not know.
What Are the Terms of the Settlement?
The text of the settlement agreement, signed by Associate Attorney General Stanley Woodward on May 18 and released later that day, provides more detail. It states that Trump agreed to drop not only his suit against the IRS but also his no less alarming administrative claims against the Justice Department in which he sought approximately $230 million in compensation over grievances related to the search at Mar-a-Lago and the Russia investigation. In exchange, the Trumps will receive a formal apology from the United States government, though he and his co-plaintiffs “will not receive any monetary payment or damages of any kind.”
What the Trumps get in lieu of a direct payout for themselves is the creation of a nearly $2 billion “Anti-Weaponization” fund—one that will undoubtedly be used to enrich their political allies. Indeed, earlier this year former national security advisor Michael Flynn and former Trump campaign advisor Carter Page each received “settlements” over $1 million based on claims against which the government had strong defenses.
To be sure, the Justice Department’s press release insists that “there are no partisan requirements” for filing a claim. But the settlement document itself is hardly subtle about who the intended beneficiaries are. It states that the purpose of the fund is to compensate “others who, like Plaintiffs, state that they incurred harm from similar Lawfare and Weaponization.” It goes on to describe those terms in explicitly partisan language, defining “Lawfare” and “Weaponization”as “the sustained use of the levers of government power by Democrat elected officials, political and career federal employees, contractors, and agents in order to target individuals, groups, and entities for improper and unlawful political, personal, and/or ideological reasons.”
Tellingly, at a (previously scheduled) May 19 hearing of the Senate Appropriations Committee’s Subcommittee on Commerce, Justice, Science, and Related Agencies, Blanche cited Hunter Biden as an example of a Democrat who could, in theory, seek relief. As Blanche knows full well, Hunter Biden was prosecuted under a Democratic administration. Later that day, Vice President J.D. Vance also cited Hunter Biden as a possible claimant. Such trolling does nothing to allay concerns of partisanship.
The settlement document itself offers a clearer picture of the intended constituency. It identifies three canonical examples of “Lawfare” and “Weaponization” that the fund is established to redress: the Biden administration's use of the FACE Act to prosecute anti-abortion activists; the Biden administration’s “wrongful labeling of certain parents as domestic terrorists”; and the IRS’s “targeting of groups based on improper ideological criteria.”
Conspicuously absent from that list—but widely understood to be among the fund’s intended beneficiaries—are the Jan. 6 defendants whom Trump pardoned upon returning to office.
Trump has been talking about compensating Jan. 6 attackers since at least March 2025, when he was asked about it in a Newsmax interview. “Well, there’s talk about that,” he said. “A lot of the people in government really like that group of people. They were patriots as far as I was concerned.” Ed Martin, the current Department of Justice pardon attorney who previously headed its weaponization working group, has endorsed “reparations” for Jan. 6 defendants, some of whom he represented before joining the administration.
The prospect of such payments has already been put to disturbing use. In February, Jan. 6 rioter Andrew Paul Johnson was convicted in Florida state court of child molestation and exposing himself to children. According to a police report, he tried to keep one victim silent by telling him that he was pardoned and stood to receive $10 million for being a “jan 6’er,” and would be putting the victim in his will.
Who, then, is responsible for deciding whether cop-assaulting rioters qualify as victims of weaponization? The agreement provides that the fund will be overseen by a five-member board appointed by the attorney general—at least for now, that’s Blanche, Trump’s former criminal defense attorney, who recently declared that he would say “I love you, sir,” if the president fired him.
For reasons left unexplained, the agreement specifies that one of the five board members will be selected “in consultation with congressional leadership.” In other contexts, courts have interpreted that language as not requiring actual approval from anyone.
All five members will serve at the pleasure of the president, who “can remove any member without cause.” That removal authority will, of course, rest with the same president who sued the government he controls, then settled with it, thereby producing the fund in the first place.
Beyond dispensing monetary awards, the board will also be empowered to issue “formal apologies.” How the board will receive and evaluate claims, however, remains unclear. The settlement leaves that entirely to the board itself, which will “determine its own procedures for submitting, receiving, processing, and granting or denying claims.”
Among the most troubling provisions in the already-troubling document are those that appear designed to shield the board’s work from public scrutiny. The settlement provides that the board may make its procedures public “in whole or in part, in its discretion”—meaning it need not disclose how it evaluates claims, what standards it applies, or why it dispensed particular awards.
And while the agreement requires the board to submit quarterly reports to the attorney general listing the name of each claimant and the nature of their relief, those reports are designated “confidential.” In practice, this means the identities of those who are awarded taxpayer funds may be kept secret from the public, and only known to Blanche and the five-member board he appoints.
Asked about this at the May 19 congressional hearing, Blanche told senators that he would make the report public except to the extent withholding is mandated by privacy laws or applicable privileges. We shall see.
What’s the Source of the Funds?
The settlement document itself does not identify the amount of money that will be allocated to the fund or the source of that funding. Instead, it provides that the attorney general, within 30 days of the settlement’s effective date, “shall establish funding and any other relevant requirements.”
Blanche did so the same day the settlement was signed, in an accompanying May 18 order that directed the Treasury to deposit $1,776,000,000 into a dedicated account for the “sole use” by the Anti-Weaponization Fund within 60 days.
Bizarrely, Blanche’s order insists that the amount of funding allocated “does not represent the value of any claim by Plaintiffs, but rather is based on the projected valuation of future claimants’ claims.” We question whether Blanche really believes that $1.776 billion is the “projected valuation” of anything, rather than a reference to the year of the nation’s founding (which, disturbingly, the far-right co-opted as it tried to overturn Trump’s election loss).
Whatever the justification offered for the sum, the money comes from the federal Judgment Fund, a permanent congressional appropriation used to pay court judgments and negotiated settlements against the United States. Once deposited, the order provides, the government bears no further liability for the funds, including in the event of bank failure, fraud, or misuse. (That no-further-liability language may not be as ominous as it sounds: it appears to be identical to language in the Keepseagle settlement, which we discuss in much more detail below.)
The fund will process claims through Dec. 15, 2028, or roughly one month before Trump’s second term ends.
What Else is in the Settlement?
The day after the Department of Justice announced the fund, Blanche dropped another bombshell. Shortly after he finished testifying on Capitol Hill, the Department of Justice posted another Blanche-signed document, dated that day, in the same weird format as the previous day’s document. Let’s call this one Blanche II. It essentially waives any claims against the plaintiffs, as well as their families and companies arising out of: “(1) any matters that were raised or could have been raised in the Case or the Pending Agency Claims; (2) Lawfare and/or Weaponization; or (3) any matters currently pending or that could be pending (including tax returns filed before the Effective Date) before Defendants or other agencies or departments.”
The first category is uninteresting. As part of a settlement, it is common for a party to waive any counterclaims it might have had against the other party. And this mirrors the corresponding release of claims by the Trump plaintiffs in the settlement agreement.
The second category is confusing, because the document incorporates by reference the strange and partisan definitions of “Lawfare” and “Weaponization” from the previous day’s settlement agreement. Is this attempting to waive any governmental action against the Trumps for anything, at least anything that has already happened?
The third category would seem to answer that question with a resounding yes. By waiving any matter that “could be pending” before any agency or department, Blanche II purports to give the Trump family blanket immunity from the government for everything they have done.
The parenthetical “(including tax returns filed before the Effective Date)” is at once logically unnecessary, possibly illegal, and clarifying. According to a 2024 New York Times report, an ongoing IRS audit might cost Trump over $100 million. It stands to reason that this is what he is most concerned with. It seems almost quaint to mention at this late date, but under 26 U.S.C. § 7217 it is a crime for the president “to request, directly or indirectly, any [IRS] officer . . . to conduct or terminate an audit or other investigation of any particular taxpayer.” The president, as a plaintiff, entering into a settlement with the Department of Justice that ends this audit sure seems like indirectly “requesting” that the IRS stand down, in violation of the statute.
There is ambiguity as to whether this immunity is only civil or whether it also covers criminal liability. On the one hand, such releases in civil litigation typically apply only to civil matters, and the type of words used is consistent with that. Furthermore, a criminal pardon is a presidential matter; except in the narrow confines of settling a specific ongoing matter, such clemency may not be bestowed by the attorney general. On the other hand, ambiguity in settlement documents is often construed against the government.
Is this actually binding on the Department of Justice after Trump leaves office? Once again, we are in uncharted territory. All the arguments against the president being able to pardon himself would seem to apply to such a blanket immunity here, even if it applies only civilly. And more besides: If the president cannot pardon himself, how can his underlyings do so?
Furthermore, what is the basis for this document? It is not part of the settlement agreement signed the previous day, which ended the case. The opening paragraph in Blanche II is the same as in Blanche I: “The Settlement Agreement in Trump v. Internal Revenue Service, No. 1:26-cv-20609 (S.D. Fla.), has created the Anti-Weaponization Fund (the ‘Fund’). The Settlement Agreement directed the Attorney General to issue an order establishing funding and any other relevant requirements for the Fund.”
The rest of Blanche II, however, has nothing to do with the fund. What gives him the authority to issue it? He is not a party to the case and he is not exercising any authority delegated to him by the settlement agreement. (The settlement agreement, unlike Blanche’s documents, was at least signed by the IRS’s top official.)
A future Department of Justice freed from Trumpian political constraints would likely treat Blanche II as presumptively invalid.
Is There Precedent for This?
Blanche I, as well as the Justice Department’s press release, cited as precedent for the fund Keepseagle v. Vilsack, a long-running class action suit involving claims by Native American farmers that the U.S. Department of Agriculture illegally discriminated against them when issuing loans. The Obama administration settled that case for $760 million, establishing a court-approved fund to administer claims. Several hundred million dollars in unclaimed funds were eventually distributed to non-profits working in Native American communities—a fact that Trump’s Justice Department cites in its press release to imply that the Anti-Weaponization Fund is comparatively superior, since the settlement agreement states that unspent funds will revert to the government at the end of Trump’s term in office.
The Justice Department’s comparison of this settlement to Keepseagle is simultaneously factually accurate and wildly misleading, in at least four ways.
First, in Keepseagle, the government settled a case that had been ongoing for over a decade, filed on behalf of a class of Native American farmers who alleged illegal loan discrimination. Here, by contrast, there literally is no case—other than the suit filed by the Trumps against the IRS. That suit—in addition to being collusive—is wholly irrelevant to the claims this fund purports to entertain.
Second, because Keepseagle was a class action, the original settlement was approved by the federal judge hearing the case, including a provision that any leftover funds would go to nonprofit organizations. (As discussed below, however, the courts in that case concluded that they lacked jurisdiction to modify the settlement when the leftover funds turned out to be far greater than anticipated.) Here, the “parties” settled on their own. That’s perfectly legal. But since the parties are Trump and his underlings, it’s pretty clear why they didn’t want a court involved.
Third, in Keepseagle, it was clear in what way the government allegedly violated the law. Here, there is just alleged “weaponization”—whatever that means.
Fourth, the Department of Justice disingenuously suggests this fund is superior to Keepseagle in that any money unexpectedly left over at the end will revert to the government rather than being doled out to nonprofits not involved in the case. But the entire Anti-Weaponization Fund is being disbursed to people not involved in the underlying litigation. The claimants invited to allege “weaponization” are the true equivalents of the nonprofits who received $300 million in Keepseagle. And whereas those nonprofits received funds due to an unexpected development—fewer fund claimants than anticipated—here the third parties are the whole ballgame.
And there’s a more basic point here: Republicans were not happy about the Keepseagle third-party payments and took steps to block anything similar in the future. Three months after taking office, Trump’s first attorney general, Jeff Sessions, issued a memorandum instructing department attorneys not to enter into any settlement “that directs or provides for a payment or loan to any non-governmental person or entity that is not a party to the dispute” unless it “directly remedies the harm that is sought to be redressed.” House of Representatives Committee on the Judiciary Chairman Bob Goodlatte, a Republican, hailed the policy change.
This settlement would not seem to be allowable under that test. The harm that the Trump plaintiffs sought to redress was a contractor’s criminal leak of their tax returns. Doling out cash to “weaponization” claimants would not seem to directly remedy that harm. (And the Trump administration removed even that exception in a 2020 regulation.)
In the Biden administration, Attorney General Merrick Garland rescinded the 2020 regulation and allowed third-party payments that for projects that “have a strong connection to the underlying violation or violations of federal law at issue.” Again, it is difficult to imagine how the Anti-Weaponization Fund would qualify.
And then Pam Bondi, on her first full day in office, issued a memorandum revoking the Garland memorandum, which had the effect of reinstating the stricter policies of the first Trump administration.
The bottom line is that Todd Blanche’s Department of Justice is misleadingly comparing the establishment of this fund to a settlement that was vastly different and that the Trump administration—two Trump administrations!—tried to ensure would never happen again.
What Did the Judge Do Once Trump Moved to Drop the Case?
When Trump filed his notice of dismissal on May 18, it left many wondering whether Judge Williams would play any role in scrutinizing the settlement—or whether she even had the power to do so. The short answer is no.
Under Federal Rule of Civil Procedure 41(a)(1), a plaintiff may dismiss a case without a court order simply by filing a notice of dismissal before the opposing party has answered or moved for summary judgment. Trump's lawyers invoked that rule in its notice of voluntary dismissal, deliberately noting that the dismissal is “self-executing” and “does not require judicial action.” Because the government had never filed an answer to Trump’s complaint, the rule applied, and Williams was essentially stripped of jurisdiction the moment the notice hit the docket.
This is one of the many ways, as discussed previously, in which the Justice Department's invocation of Keepseagle as precedent is misleading. In Keepseagle, the settlement was subject to judicial supervision precisely because it was a class action: under Federal Rules of Civil Procedure 23, a class action settlement cannot take effect without court approval, which gave the presiding judge meaningful oversight over its terms. No such supervision exists here. Trump v. IRS was an ordinary civil suit, not a class action, which meant that once Trump filed his notice of dismissal, Williams had no hook on which to hang a review of the settlement. And, given the timing of the dismissal, she was divested of jurisdiction before she could hold the May 27 hearing on the “case or controversy” issue.
But Williams did not exactly go quietly. On May 20—the same day the parties' jurisdictional briefs had been due—she issued an order formally closing the case. In her order, she noted that the Justice Department, which has an “independent obligation to uphold the ‘public’s strong interest in knowing about the conduct of its Government and expenditure of its resources,’” had “neither submitted any settlement documents nor filed any documents ensuring that settlement was appropriate where there was an outstanding question as to whether an actual case or controversy existed.”
Is This Legal? If Not, What’s the Remedy?
Article I, Section 9, Clause 7 of the U.S. Constitution provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In 1956, Congress established the Judgment Fund, codified at 31 U.S.C. § 1304, a permanent appropriation that generally allows the federal government to pay all judgments and settlements. The Judgment Fund statute cross-references 28 U.S.C. § 2414, which provides in pertinent part:
Except as otherwise provided by law, compromise settlements of claims referred to the Attorney General for defense of imminent litigation or suits against the United States, or against its agencies or officials upon obligations or liabilities of the United States, made by the Attorney General or any person authorized by him, shall be settled and paid in a manner similar to judgments in like causes and appropriations or funds available for the payment of such judgments are hereby made available for the payment of such compromise settlements.
This language is extremely broad. Does “compromise settlements of claims” refer only to payments to plaintiffs and potential plaintiffs? Or could the claims cover payments to third parties, as here and in Keepseagle? Does the sheer magnitude of the payments to third parties matter? How about the fact that all the money is going to third parties? Does it matter that, unlike in Keepseagle, the third-party payment recipients bear no connection to the original dispute? What about the fact that, as Judge Williams’ amici concluded, the original lawsuit might not contain sufficient adversity? The answers to these questions are unknown.
In the Keepseagle case, some judges were troubled by the gargantuan third-party payments, which were far bigger than the parties anticipated when originally reaching a settlement providing that any leftover funds would go to third-party nonprofits. The issue came before U.S. District Judge for the District of Columbia Emmett Sullivan when class members tried to reopen the settlement when the size of the leftover money became clear. Judge Sullivan wrote that “[a]lthough a $380,000,000 donation by the federal government to charities serving Native American farmers and ranchers might well be in the public interest, the Court doubts that the judgment fund from which this money came was intended to serve such a purpose.” He concluded, however, that he had no authority to reopen the case and was bound by the final judgment, five years earlier, in which he had approved the original settlement. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit agreed that it lacked jurisdiction, over a blistering dissent by Judge Janice Rogers Brown, who would have reached the merits and held that the payment to third parties was not authorized by 28 U.S.C. § 2414 and thus violated the Appropriations Clause.
Here, too, a court likely would have great difficulty reaching the merits. The hard part would be finding someone who has standing. A generalized grievance does not suffice. Thus, with rare exceptions, standing based upon one’s status as a taxpayer does not get one through the proverbial courtroom door.
Today, two police officers who came under attack on Jan. 6 filed suit to challenge the establishment of the fund. In their complaint, they assert that they have standing because the fund’s existence conveys that people who act violently in support of Trump will be financially rewarded, and will lead to an increase in violent threats against them—even more so if and when payments are made. This assertion is likely too speculative to survive a motion to dismiss for lack of standing. No doubt other creative lawyers will try, but it is hard to imagine any person who would have the sort of “concrete and particularized” injury that suffices for standing.
Could Congress sue on the ground that it never appropriated funds for this purpose? The question, somewhat surprisingly, remains disputed at this late date. Most recently, the U.S. Court of Appeals for the District of Columbia Circuit held in 2020 that the House of Representatives could raise an Appropriations Clause challenge to the first Trump administration transfer of funds to build a wall along the southern border in the absence of specific congressional appropriations for that purpose. But the case became moot when Trump lost the election and the Biden administration decided not to continue building the wall, and the D.C. Circuit opinion was vacated as a result. (Full disclosure: one of us (Eric) litigated for the House’s unsuccessful effort to prevent vacatur of the D.C. Circuit’s opinion.) The Supreme Court has never weighed in on whether one or both houses of Congress may maintain such a suit.
Of course, it is extraordinarily unlikely that this House or Senate would file suit. But one or both houses may be under Democratic control come January, and might choose to pursue litigation.
But the easier remedy, legally speaking, is legislation. Congress could pass legislation at any moment to block the fund—and Senate Minority Leader Chuck Schumer has signaled he intends to try to do so via amendments to the Republicans’ reconciliation bill. If Democrats prevail in the midterm elections, they may try to do so via the normal appropriations process. Some might also want to try to claw back payments already made, although that could raise its own legal concerns.
Speaking of legality, it’s worth noting that the Treasury Department needs to certify any payment from the Judgment Fund. And under the Antideficiency Act, it is a federal crime to “knowingly and willfully” spend money not appropriated by Congress. While apparently no one has ever been prosecuted for this, there is always a first time, and counting on a preemptive Trump pardon may be an unwise bet. But a good-faith belief in the lawfulness of a payment from the Judgment Fund to the Anti-Weaponization Fund would be a sufficient defense to any such charge.
(On the same day the settlement was released, the New York Times reported that Department of the Treasury General Counsel Brian Morrissey had abruptly resigned in the wake of the settlement. It seems quite likely that the two were connected. We do not know if Morrissey’s concerns related to the settlement’s wisdom or its legality or both. But as Treasury general counsel, he likely knows a lot more about the settlement, and possible legal concerns, than we do.)
One final note on legality and remedy: Rep. Jamie Raskin (D-Md.) has suggested that Section 4 of the Fourteenth Amendment, which provides, among other things, that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States,” would at least bar claims by Jan. 6 rioters.
Any litigation based on such a claim is unlikely to succeed. Even if Jan. 6 constituted an “insurrection or rebellion against the United States” (a question the Supreme Court dodged in its 2024 decision overturning the Colorado Supreme Court’s order to exclude Trump from the presidential ballot in the Republican primary), and even if Section 4 could be considered self-executing in the absence of congressional action (a question the Supreme Court answered in the negative in that case with regard to Section 3), it is hard to see how the relevant “debt or obligation” could have been “incurred in aid of” an insurrection or rebellion that ended over five years ago, and that in any event ended before any alleged “weaponization” took place. And, of course, the standing hurdle would remain.
What’s the Bottom Line?
A sitting president filed a lawsuit against agencies he controls, staffed by lawyers who work for him, in a case that a federal judge had serious doubts was a lawsuit at all—and then dismissed it before she could rule. What emerged from that process is a $1.776 billion fund that may end up paying vast numbers of the president’s political allies, including people who were convicted of serious crimes, whether by guilty pleas or juries of their peers. This has been called a “settlement.” But it’s worth pausing on how little that word actually applies.
What makes this particular episode so unsettling is that it’s not clear how it would be stopped. The legal avenues to challenge it are untested and the standing hurdles are formidable. Meanwhile, the legislative appetite to act—at least in this Congress—is not yet apparent. By the time a future Congress might try, nearly $2 billion in taxpayer funds may be largely gone, dispersed to recipients whose identities may never be publicly known.
All of which is to say that Trump has once again done something that is obviously corrupt but may prove impossible to unravel—unless a Congress controlled by his party finds the rare gumption to buck him.
