Lawfare Daily: Trump Sues Self, Settles

[Intro]

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Eric Columbus: It’s an immunity deal, immunity for any, against any possible enforcement action that the federal government could bring at any time based upon anything that you or your family or your businesses or their businesses have done up to the date of the settlement.

Benjamin Wittes: It’s the Lawfare Podcast. I’m Benjamin Wittes, editor-in-chief of Lawfare, with Lawfare Senior Editor Eric Columbus.

Eric Columbus: There also is, as you say an equal protection component about the type of victim. That, I think, is probably uphill battle because the government, as I said can... is allowed to pick and choose about what types of victims it wants to, harms it wants to remedy.

Benjamin Wittes: We’re talking presidents who sue themselves today.

[Main Podcast]

Donald Trump has done the impossible. He has settled litigation with himself on the basis of the creation of a slush fund to pay off political supporters, along with a shocking immunity agreement by which the government never seeks to sue him again. Eric and Lawfare Senior Editor Anna Bower, have written a lengthy examination of this whole mess of issues.

We go through it all. I wanna start with the backstory here. Donald Trump sues the IRS. Why did he sue the IRS, and what, if any, merit did that suit have?

Eric Columbus: The New York Times and ProPublica published stories about Donald Trump’s tax returns that clearly came from a leak of some sort.

Benjamin Wittes: And this was back in the first term, right?

Eric Columbus: Well, the leak, I d- I don’t recall precisely when the stories were published, but the leak, as it turned out, was from s- documents stolen by an IRS contractor named Charles Littlejohn in 2019 and 2020. So yes, the documents were pilfered during Trump’s first term. And the he took, this guy took documents from a lot of people, a lot of big shots in- including Trump.

He was prosecuted for it by the Biden administration and sentenced to five years in federal prison, so completely normal disposition of that case. Trump, being Trump sued, and he was, in fact, wronged. He was a crime victim, and so it was not entirely crazy that he would want some sort of remedy.

The hedge fund magnate Ken Griffin also sued. As it turned out, he got only an apology as a remedy. Trump obviously got a whole lot more. There were a bunch of problems with Trump’s case. There was a statute of limitations issue. The statute of limitations begins to run when you learn that your tax information was disclosed without authorization.

He claims that didn’t happen until January 29th, 2024, when he got an IRS letter saying that Littlejohn had been charged with disclosing his returns. But that had been known long before or at the very least when Littlejohn pleaded guilty in 2023. One of Trump’s own attorneys a- addressed the court at that time so it’s pretty hard for Trump to claim that he was ignorant before then.

There were some other issues, in that Littlejohn was a contractor. It’s not clear to what extent DOJ would have liability So, you know, in a normal course of events, the government would have defended this case, and the Ken Griffin example where Griffin got a deserved apology very much stands out.

Trump got a whole lot more.

Benjamin Wittes: Right. So it’s fair to say that leaving aside the legal merits of the case for a minute, you’re not... The IRS is supposed to protect people’s tax returns. Leaks of tax returns are bad, although there’s a fairly good argument that if you’re president and you promised to release your tax returns, and then reneged on the promise, it may be a little bit less bad than, that said, it’s no less illegal, and he was, in this instance, a civil liberties victim, and there’s thus some righteousness to the idea that something inappropriate happened here. But he wouldn’t win the suit. Is that a fair summary?

Eric Columbus: It’s probably that he would probably not win the suit, yeah.

And even if he did win the suit, the damages that he would be held before would be vastly smaller than what he received.

Benjamin Wittes: All right, so Trump finds himself in this quite enviable position of essentially suing himself, which is to say he’s suing the federal government that he’s now the head of the unitary executive of that federal government, and the IRS ultimately reports to him.

Before we get to what happened, let’s break down what his authorities are. He is both the plaintiff here, and he is not quite the defendant, but he does direct the defendant. What are his powers? What does he have the authority to do? What doesn’t he have the authority to do regarding directing the IRS to settle this case with him that it would lose on the basis of the 10 billion dollars that he sought as damages?

Eric Columbus: Well, if that kind of depends upon how one views presidential authority. You could if you’re a fervent believer in a unitary executive, you would say that the president has full authority to direct the IRS, the Department of Treasury, and the Department of Justice as their lawyers to d- do anything in, in litigation, and even to settle a case on generous terms that he has filed against them.

There are, there is a criminal statute that provides that it’s a crime for certain people, including the treasury secretary and the president to order the termination, the, either the investigation or the termination of an investigation of any tax audit into a taxpayer. Of course, under the Supreme Court’s Trump decision from 2024, Trump would not be able to be prosecuted for such an official act, and perhaps not even the Treasury Secretary could be.

But there are all sorts of constitutional reasons and policy reasons why we would think that the president would not have the ability to do this, but that is by no means an uncontested view.

Benjamin Wittes: Yeah, I think as a functional matter, the president does have the ability to do this because he has the a- authority under the Appointments Clause to appoint the Treasury secretary, to fire the Treasury secretary, to appoint the commissioner of the IRS, to fire the commissioner of the IRS, to appoint the attorney general, to fire the attorney general, right?

And the power to do that is functionally the power to direct a settlement, assuming you’re willing to tolerate the political consequences for behaving that way. Is that ... Do you think it’s ac- it’s, in functional terms, more complicated than that?

Eric Columbus: Well, then there is the issue of whether a court has jurisdiction in such a case, whether there is a case or controversy under Article III.

If it’s a collusive suit, and collusive suits do happen from time to time, a- and they’re not always evil. But if you are really pulling the strings on both sides in order to cash in for yourself, there is some trouble here that it may have a constitutional dimension beyond just kind of specific trouble for Trump himself.

And that’s what the district judge, Judge Williams in the Southern District of Florida was worried about. And she appointed a team of outside lawyers as amicus amici curiae f- to, for herself to assist her in analyzing this jurisdictional question, and it was really an all-star cast.

It included Don Verrilli, former solicitor general. It included John Gleeson, a former U.S. district judge for the Eastern District of New York, who I believe, if memory serves, prosecuted John Gotti when he was a prosecutor. And they filed a brief, and it was interesting. It was kind of nuanced.

They s- stopped short of recommending, you know, outright dismissal of the case given the absence of a factual record. But they said basically, like, there needs to be adversity between the parties for the court to have subject matter jurisdiction for a federal court to be able to hear the case.

And if one party controls the other, then that doesn’t exist. And so they, they suggested that the court obtain more information about maybe trying to see whether the ongoing settlement negotiations were being conducted at arm’s length whether the DOJ lawyers were insulated in any way. And, you know, it’s quite possible at the end

It’s quite likely, I should say, that the answers to those questions are no. There was nothing being done to make it seem anything other than a sham. And I think that maybe spurred the Trump people to yank the case as soon as they could and end this thing before the judge could do anything about it.

Benjamin Wittes: That’s a great introduction, and you and Anna Bower have written a kind of exhaustive, I would say, survey examination of many of the issues that arise from this settlement. Let’s first describe the various components of it because they’re not all clearly linked to each other, though they are clearly coordinated and linked.

So it seems to me there’s Three basic components of this settlement. One is that Trump drops the litigation, and the second is that instead of suing for $10 billion dollars to himself the Justice Department sets up a $1.776, get it, 1.776 billion dollar fund for payment of victims of weaponization by Democratic but not Republican administrations.

And number three, and this was not announced the same day, it was announced the following day, the Justice Department has committed that the IRS will not conduct any enforcement activity with respect to any pending matters vis-a-vis Trump’s tax returns or those of his family or businesses. Is that...

Are there more components of the deal than that?

Eric Columbus: That’s right. The third one is actually incredibly it’s actually even broader than how you described it, in that it covers anything that is, any matters currently pending or that could be pending before any part of the federal government.

Benjamin Wittes: It’s an immunity deal.

Eric Columbus: It’s an immunity deal, immunity for any, against any possible enforcement action that the federal government could bring at any time based upon anything that you or your family or your businesses or their businesses have done up to the date of the settlement

Benjamin Wittes: And it covers criminal or civil matters?

Eric Columbus: Well, that’s a good question.

It, I read it, I mean, it doesn’t specify. The language i-i- that it uses is just kind of, it tends to be kind of civil lang- is, s- tends to be civil language. A, and a criminal immunity is b- by the terms of the Constitution something that is bestowed by the president in, in, in, via pardons or, and except in the confines of resolving a specific criminal matter is not thought to be something that the attorney general can do.

Benjamin Wittes: Well, except that that’s not right because criminal immunity under the immunity statute happens all the time and is done by, you know, simply the government agreeing not to prosecute.

Eric Columbus: Yes, but in a specific matter. I mean, the government doesn’t agree, “Okay, I’m just not gonna prosecute you for anything you’ve ever done.”

Or if it—

Benjamin Wittes: No, but it does say in the context of plea bargains, you know, you’re gonna charge, be charged for X, and you’re gonna plead guilty to X, and in exchange we’re gonna immunize you for any other claim we might have been able to bring, right?

Eric Columbus: I think it, I don’t think that exempts... I don’t think those are written so broadly that y- they exempt you from- Like if you murdered someone if it turns out you murdered someone they can’t bring that charge against you.

Benjamin Wittes: Right. It has to be within the confines of the existing known fact patterns.

Eric Columbus: Yeah.

Benjamin Wittes: So let’s take these three in sequence. The first is the dropping of the case. How clear is it that the case was dropped because of the difficulty they were running into with the adversariality question before Judge Williams?

Eric Columbus: It’s not entirely clear. I think there is, there’s some kind of evidence that these... they did this in haste. Like the documents that were signed by Todd Blanche are like they’re like written like they have a g- it’s like almost like a page torn out of a contract. It’s not the type of thing that a attorney general would...

It doesn’t have the bells and whistles of a normal attorney general order. It, which is I mean, it’s kind of a, sloppiness is kind of a hallmark of this administration, but it does seem that if they, you know, had the luxury of time, they would’ve made it look a little bit neater. And so what I’m gonna have it says, the reason why they wanted to do this as a settlement, and therefore do it while there was still a lawsuit, is so that the payment for this slush fund could come out of what’s known as the Judgment Fund, which is a fund available al- almost exclusively for the federal government to pay out judgments or settlements in court cases.

It’s not a piggy bank that the government can just use for any project. So, if you claim that you’re... You have to at the very least claim that this is part of a judicial, t- that this is to resolve a judicial proceeding in order to use that money.

Benjamin Wittes: Right. If it’s not related to the case, it’s much harder to justify building it into, you know, taking the money from the Judgment Fund.

Eric Columbus: Yeah.

Benjamin Wittes: What is the Judgment Fund, and why does the administration get to create a slush fund out of it? That doesn’t seem like what it was for. There is no judgment here. Help me out. How clear is it that you can just take this fund and say, “You know, here we will build a slush fund for paying my side of the political aisle for claims of a vindictive weaponization by the other side of the aisle”?

Eric Columbus: So the Judgment Fund is essentially a permanent a- appropriation kind of like a bottomless pit of funds to pay out judgments in, in civil litigation judgments and settlements.

Benjamin Wittes: People sue the federal government all the time. They win or there are settlements. The government owes out money.

This is just an appropriated fund to pay litigation losses.

Eric Columbus: Yes. And the assumption is that the government will be responsible in using it. There has been criticism through the years that it’s sometimes been abused, and sometimes the government is more or less generous in paying out settlements depending upon what it thinks of the folks on the other side.

And there are people who during the during Democratic administrations who say, “Hey, you guys are paying out settlements to in the civil rights sphere, in the environmental sphere that are in excess of what reasonably plaintiffs stood to gain, a- and taking into account the risk to the government had the case proceeded.”

So then there’s the Judgment Fund statute cross-references a, another statute that authorize ... An older statute that authorizes, that provides that the compromised settlement of claims referred to the attorney general for defense of imminent litigation or suits against the United States shall be settled and paid in a manner similar to judgments in such cases.

So in other words, you can pay settlements. Now, that statute is very v- broad and very vague. It refers only to compromised settlements of claims. It doesn’t say, you know, this has to be a legit settlement. It doesn’t say it can’t be, you know, ridiculous. It doesn’t even say that the money has to go to the plaintiffs themselves.

It doesn’t expressly exclude third parties.

Benjamin Wittes: So has it ever been used to you know, has a claim against the federal government, they give up that claim in exchange for the government setting up a fund to give money to other people?

Eric Columbus: So there’s an example of this that the Department of Justice cites and, you know, holds up as the comparison for why this is kosher, and that is a case called Keepseagle, which was a class action brought by Native American farmers who alleged that the federal government was discriminating against them in loan applications the Department of Agriculture.

And the case was settled during the Obama administration for I believe around $760 million dollars. The idea was that the eligible Native American farmers would submit claims to the fund and any money left over, which the government and the plaintiffs expected would be maybe a s- a, a pretty small amount, would go to nonprofits working on helping Native Americans of some sort.

They were going to-

Benjamin Wittes: But that doesn’t strike me as comparable at all, because the fund is set up to compensate the plaintiffs, that is the members of the class who brought the suit. Here, the one plaintiff drops the case, and in exchange the judgment fund is being tapped to set up a fund, the beneficiaries of whom we don’t know who they’re gonna be, but they’re not the plaintiff.

And so it seems like the settlement is for somebody entirely other than the people who were parties to the litigation.

Eric Columbus: Yes. Yes, exactly. A- as it turned out the leftover money in the Keepseagle case turned out, unexpectedly turned out to be huge, turned out to be, like, a majority of the fund.

Like, the farmers got, I think, 300 million, and these nonprofits got 380 million. So it was mammoth, and it became very controversial. But the courts concluded that they couldn’t do anything about it because the district court had already signed off on the final judgment that approved that provision.

At the, and at the time, no one knew how large that leftover pot would be. But yes, you’re exactly right. Here by design, the entire pot is going to third parties. And unlike the third par- at the very least in the, in, in Keepseagle, the third parties had, third party had a l- you know, a little bit of connection to the plaintiffs in that they were charities working on Native American causes in a case involving alleged discrimination against Native Americans.

Here there’s no real connection between the third parties and the plaintiff except kind of a corrupt one, that they are kind of his political cronies.

Benjamin Wittes: And that they’re all victims of the same fictitious weaponization of the Justice Department.

Eric Columbus: Yeah, exactly. A- and it, kind of ironic in that the Keepseagle case and, was something that Republicans hated and got very mad about, and there were hearings on it in Congress.

Benjamin Wittes: Well, they were right to be mad about this aspect of it that, in my opinion, that, you know, having a settlement that operates as a windfall for n- nonprofit groups that are not You know, that are not plaintiffs is not I don’t think, a responsible use of the federal treasury. Yeah. I don’t have a problem with their anger at that.

I do have a problem with their doubling down on the premise to, for a much worse abuse- Well, yes ... that’s not accidental.

Eric Columbus: Well, but the irony is that the, the- they weren’t just angry at it, but they actually did something about it. Three months after taking office Jeff Sessions, who once upon a time was Trump’s first attorney general put out a memo basically saying, you know, no settlements that give out money to third-parties ex- unless it, quote, “directly remedies the harm that is sought to be addressed.”

And then they doubled down on that, and they removed even that exception in 2020. And Merrick Garland rolled it back a little bit s- that you could have third-party payments if there’s a strong connection to the underlying violation. And then Pam Bondi, on, literally on her first full day in office, issued a memo revoking the Garland memo, and which had the effect of reinstating the stricter policies of the first Trump administration.

So, they’re doing something that Todd Blanche is doing something that is not only, y- you know, ridiculous and outrageous and far beyond the scope of the example that he originally, you know, that he cites as precedent but that is, is itself pretty much explicitly banned by his own a- administration, by his predecessor and it’s something that the Trump administration, that two Trump administrations have fought against when it didn’t involve anyone named Trump.

Benjamin Wittes: So all right, let’s review the bidding so far. They unambiguously have the right to drop the case, and there may not be a case at all because there’s a adversariality question with respect to the parties, and the issue is hastened by the possible complications to the case, which in any event they would lose because of statute of limitation issues.

And even if they didn’t lose because of statute of limitation issues, they would not prevail in a in a large dollar sense, though the case has some significant merit morally that a wrong was in fact done. They have the authority to drop the case. The terms of settlement, the creation of this third-party fund, is wildly outside of anything the Justice Department has done before, even when it has erred by creating third-party, accidentally creating significant third-party compensation mechanisms in settlements.

These, this third-party compensation mechanism is numerous times the size of any prior one, intentional and wholly unrelated to the n- nature of the claims in the suit. But it’s not clearly illegal under the terms of the appropriations bill, right?

Eric Columbus: It yeah, it’s not clearly legal. I mean, one, one could make, you know, various arguments about w- how this, these abuses of the judgment fund exceed the statutes that provide, that allow for settlements.

But it’s really all new terrain legally.

Benjamin Wittes: Who has standing to challenge it?

Eric Columbus: There’s the rub. And it’s not clear that anyone does, because y- you need to have... In order to have standing, y- you need to have an injury that is concrete and particularized are terms that the Supreme Court has used that is, is imminent not speculative, and that is basically the fault of the people you’re suing, and that would be redressed favorably by a judicial decision.

And being a taxpayer who’s outraged at this waste of money does not suffice.

Benjamin Wittes: What about being Letitia James, who gets to walk into court and say, “I was indicted by this administration over the objection of grand jurors”? They’ve basically announced publicly intention to persecute me in public.

The president has yelled at Pam Bondi in public about the fact that she should be bringing cases against me. They keep going back to grand juries and trying to get me re-indicted. They indicted me illegally according to eventually the Fourth Circuit will say as much. And oh, by the way, they keep threatening to do it again and again.

If anybody is a victim of weaponization of the Justice Department, I am a victim of overt weaponization of the Just- overt, proud, and declared weaponization, to the point that or, you know, people in the Justice Department are showing up at my house in creepy trench coats. Like literally. And yet I am ineligible to apply for compensation from the weaponization fund because I am a Democrat, and I am complaining about weaponization by a Republican administration, which in a viewpoint discriminatory fashion, has engineered this fund to disfavor people like me who have complaints against them, and enrich only their political allies who have complaints against my political party.

So I contend that I have a unique injury. These people are coming after me. They deny me access to the fund that they created, which they are deploying in a viewpoint discriminatory fashion in violation of the First Amendment. Why do I not have standing?

Eric Columbus: Well, that’s interesting. At first I would say that she is not excluded, not by virt- she’s not excluded by being virtue of a Democrat.

There’s nothing in the description of the fund that says that. And in fact, Todd Blanche who coincidentally was testifying before Congress on Tuesday, said, “Look, Hunter Biden can apply if he wants.” Which is kind of a clever thing to say because as Todd Blanche knows Hunter Biden was prosecuted under a Democratic administration.

So he could, i- it’s a clever example to use of how, you know, even if the fund is limited to Democratic administration abuses, that could cover abuses against just about anyone, even the president’s son. You could and, you know, it’s, i- I suppose it’s possible that they could write it a little bit more broadly to get it around a Letitia James type suit by kind of removing the limitation to Democratic administrations, which was a little bit ambiguous in the original definition.

Benjamin Wittes: I mean, it, but it’s there. It, if you were prosecuted by this administration, if your name is Kilmar Abrego Garcia, or Jim Comey, or Letitia James, or LaMonica McIver, it doesn’t matter how strong your claim is, you are ineligible, and that strikes me as a non-neutral viewpoint discriminatory First Amendment problem.

Eric Columbus: I I could see someone bringing that case. I mean, the Trump administration would respond by saying, “Look, it is not, i- it’s a limitation on who the wrongdoer is. Hunter Biden can, could bring his case. Any number of people of you know, leftists, criminals, whoever, who were, you know, targeted by Department of Justice in a Democratic administration are welcome to apply.

The government can pick or choose the wrongs that it wants to remedy.” For example, the 9/11 fund, I, i- if memory serves, I think, did not provide- And by

Benjamin Wittes: act of Congress.

Eric Columbus: Yes, but the First Amendment is the same. You could, you know, that, that didn’t apply to the 1993 World Trade Center bombing, if memory serves.

And, or gen- it definitely didn’t apply to other terrorist acts that were unrelated. And so the government was favoring one type of victim over another.

Benjamin Wittes: O- of course, it wasn’t favoring one type of victim of its own actions Right? The Trump administration sometimes treats the federal government under the prior administration as though there’s no continuity between the entities, right?

And I, I don’t know that you can do that as a... i’m not sure if the principle resides in the First Amendment or if it resides in, you know, some equal protection principle, but it seems to me that Letitia James has a legit complaint, at least as an equitable matter, that, you know, you set up a fund on weaponization that allows, you know, frankly meritless claims by people, you know, who’ve actually committed crimes while excluding highly merited claims by people who were the subject of actual weaponization.

I, I would be troubled by that if I were a federal judge.

Eric Columbus: Yeah, I mean, I think that such a plaintiff might emerge and might- try to mount a First Amendment argument based on the quite clearly intended design to benefit people of a certain viewpoint, which the government can, you know, which Todd Blanche has already been pushing back on, and the government, if they are smart and if they’re allowed to be smart, can try to somewhat deftly mitigate in the construction of the claims process.

But then there’s al- there also is, as you say, an equal protection component about the type of victim. That, I think, is probably uphill battle because the government, as I said can... is allowed to pick and choose about what types of victims it wants to, harms it wants to remedy. But you know, these are things that could be raised in litigation, and obviously the judges, or I should hope it’s obvious, the judges, you know, think this whole thing stinks, are gonna think this whole thing stinks to high heaven, and may look more favorably than otherwise on attempts to kill it.

Benjamin Wittes: All right, let’s talk about this third category, which has nothing to do with the fund. It’s just a kind of codicil that comes out the next day saying, “Oh, by the way, you’re immunized for everything from the dawn of time until now.” How is that possibly lawful? And again, who has the, who has standing to challenge it?

Or is it simply a matter of the next administration tears it up and says such a thing is not consistent with public policy and no such contract is enforceable?

Eric Columbus: Yeah I think it’s the latter. I don’t see how anyone would have standing to challenge a non-enforcement decision. I mean, arguably there could be some type of competitor standing if one organization is in the, say there’s a, some real estate company that is competing with the Trump organization, and the government has gone after them, but not after the Trumps.

But I think that’s, it would be very hard to imagine that prevailing. And it’s I do think a future Department of Justice would treat it as presumptively invalid. It’s not clear that how Todd Blanche has the authority even to say this or even to do it as part of a settlement.

It’s really weird that Blanche This, the second part of the deal was, this part of the deal was separate from the other part, both in, in, in what it is and also in time. It wasn’t part of the settlement agreement. It was f- posted and apparently signed, the f- dated the following day somewhat conveniently right after Blanche finished his congressional testimony y- Blanche is not a party to the case.

He’s, he... It, sorry, it says at the beginning of it that, that this is being done to effectuate the settlement agreement and the Anti-Weaponization Fund which is the same language used in his order the previous day that kind of set up the fund. But it’s kind of a head-scratcher because this release of liability has nothing to do with the fund, and Blanche just posted it yesterday and, but he’s not a party to the case.

He’s not exercising any authority delegated to him by the settlement agreement. A- and the settlement agreement was at least signed by the IRS’s top official. So i- it’s very strange, and the self-dealing arguments are even stronger here than in than with the fund, and they’re quite strong there.

But they’re even stronger here because this is just, you know, “I’m gonna give you, I, the attorney general who you appointed am gonna give you you know, get out of, well, if not jail, get out of civil liability free fund for forever and ever.” So I think this would be torn up by a future Department of Justice, assuming that they...

I mean, they’re not gonna go after Trump in a civil matter just for the sake of doing so, I would think. But if, for example the New York Times reported that there was an ongoing audit of Trump that could well cost him over $100 million. They reported this, I think in 2024. The Department of Justice the IRS might well reopen that under a new Democratic administration and let, and then once the audit’s completed, sue Trump for the money and let Trump argue that he was somehow given a immunity by his own attorney general.

Benjamin Wittes: So the net effect of this is not that it prevents the government from seeking liability in some future administration against Trump or his entities or his members of his family. It’s really that it provides an argument that would have to be overcome to Trump that the attorney general signed this document that immunized me.

Eric Columbus: Well, I mean, it purports to prevent any-

Benjamin Wittes: Right. No, he would, but he would argue, so some future attorney general, say Attorney General Eric Columbus, comes in and tears out that tears up that document, and the IRS brings this lawsuit for, say, $100 million dollars. And Trump argues, “No, that’s precluded by the Blanche document.”

And the real consequence of this is that y- the government would have this extra step of arguing in court that the document is not enforceable

Eric Columbus: Yeah. And that’s analogous, for example, to say if Trump decided to pardon himself on his last day in office, and there are strong argumen- arguments as to why a self-pardon is invalid.

Like, like, like say that he committed some clearly unofficial act that was a crime, that, that was a federal crime, and he pardoned himself on the last day the future Department of Justice could choose to prosecute him for that and let courts sort out whether or not his self-pardon was valid.

Benjamin Wittes: All right.

I wanna close this with a moment on the ethics questions vis-a-vis Todd Blanche. You’re a member of, in good standing of what bar?

Eric Columbus: You meaning Todd Blanche, or you—

Benjamin Wittes: Meaning—No, meaning you, Eric Columbus ...

Eric Columbus: —the District of Columbia.

Benjamin Wittes: And if you were to, say, go back into the Justice Department and be assigned to work on or let’s say you were asked to work on or you were at a political level where you could assign yourself work on a matter that involved a recent former client And you engineered or supervised or signed off on a settlement that allowed the creation of a giant slush fund at the political disposal of that, worth $1.776 billion dollars, to benefit the friends and political allies of your former client.

And the next day, you signed a statement immunizing fr- from civil liability your former client from the dawn of time till now, all and the person’s businesses and and family members for any civil liability for anything, and maybe criminal liability too. Would you fear that somebody would file a bar complaint with the District of Columbia saying you’re not allowed to use your current position to enrich your former client?

That is a, an actual conflict of interest, not an appearance of a conflict of interest, an actual conflict of interest, and you’re not allowed to participate in that matter. Why is Todd Blanche so completely unafraid of that bar complaint?

Eric Columbus: Well, to answer that question, I think the worst-case scenario for Todd Blanche would be that he is disbarred from practicing law, and he could have a long, happy, and wealthy life without doing it.

And this is m- would be many years down the road in, in any case. And for that matter, even if he’s disbarred, he could still be attorney general without being a member of the bar.

Benjamin Wittes: Well, he wouldn’t be able to actually sign briefs in, that appear in court.

Eric Columbus: C- correct. Correct. Although before being attorney g- b- before this administration, he—

Benjamin Wittes: I’ve loo- I’ve looked into, I’ve looked into this because, you know, I have occasionally wanted to be attorney general, and that whole not being able to h- represent that I’m an attorney thing would be a problem.

Eric Columbus: Well, actually, b- before this administration, the attorney general’s name did not appear on briefs It’s one of the weirder but probably least meaningful novelties, if you will, that the, this administration has introduced. I believe it’s actually quite possible that if you’re not a member of a bar, you cannot be paid by the attorney general.

There’s actually a statute r- regarding that.

Benjamin Wittes: It’s a grave injustice in my life, I’m afraid. But seriously, if you were in Todd Blanche’s role I mean, you would fear for your law license, right?

Eric Columbus: So, I... So it’s interesting and I’m trying to remember my- the DOJ ethics rules that I used to be subject to regulations and I think in some cases criminal statutes.

I I don’t think that the setting up of the fund itself is an issue because it does not benefit Trump himself in the strict financial sense, and I believe it actually says in the settlement agreement that the plaintiffs are not allowed to get any money from the fund. Now, you might say and quite possibly with good reason, that even so, Blanche was involved in settling a case that was brought by his former client, and therefore he should have been recused in from anything arising out of that.

Now, technically the settlement, he was just effectuating something already pr- done by the settlement agreement, so, you know, maybe it’s permissible, I don’t know. But then you get to the weirder th- the harder question I think is the civil liability immunity, because the settlement agreement does not purport to address that, and Blanche is kind of claiming it does, which is weird.

But if it doesn’t, then he’s just kind of, you know, giving something—

Benjamin Wittes: He’s freelancing immunity to his former client. I sat in a court for six weeks with Todd Blanche while he represented this man in a criminal trial. You know, that criminal trial is the New York state case, is still under appeal in the Second Circuit.

He was counsel of record in the underlying case. I don’t see how you can, you know, as a lawyer for a client with a criminal conviction currently before the New York First Division Appellate Court in New York, a- and they’re still trying to get it removed to federal court, how you can take ... how you can represent that client, you got that, and you are engineering immunity for him from the federal government.

I I just don’t see how that’s possibly ethical.

Eric Columbus: I think there are some very serious problems there.

Benjamin Wittes: Folks, we’re gonna leave it there. Eric Columbus, thank you for joining us. You can read Eric’s and Anna Bower’s lengthy examination and detailed examination of this series of matters on Lawfare.

Eric, remind me, what is the headline of the piece? What’s it called?

Eric Columbus: It is called “The President Who Sued Himself.”

Benjamin Wittes: The “President Who Sued Himself” about sums it up. Eric, thanks for joining us today.

Eric Columbus: Thanks, Ben.

[Outro]

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