The Anti-Weaponization Fund: An Autopsy

Dan Greenberg

Earlier this week, acting Attorney General Todd Blanche announced that the Anti-Weaponization Fund had been scrapped. “We’re not moving forward with the fund, period,” said Blanche in remarks before a House appropriations subcommittee.

Perhaps Blanche’s announcement was the death rattle of the $1.776 billion slush fund—a taxpayer-funded cornucopia of payoffs to be administered by Trump appointees that would almost certainly have been awarded only to Trump allies. And perhaps not: When President Trump was asked whether the fund was dead or just on hold, he responded “I’d have to ask the lawyers. I don’t know …. The weaponization fund, as far as I’m concerned, was a beautiful thing. I love it. I think it’s so important.”

The Anti-Weaponization Fund was indefensible for multiple reasons. It was a wasteful, duplicative program that was tarted up as a victim compensation fund. Of course, the federal government should compensate those it has harmed, but existing restitution programs have some safeguards against waste, fraud, and cronyism. The Anti-Weaponization Fund would have bypassed all of them. 

The Fund has been in critical condition ever since Friday. Last week, one federal court temporarily enjoined the administration from creating or operating the Fund, while another court took the unusual step of demanding briefing from President Trump’s personal lawyers as to whether the action that gave birth to the Fund was the product of collusion, deception, or a fraud on the court. 

Perhaps it is better to think of the settlement as an architectural structure rather than a critically ill patient. One pillar of that settlement now remains: the extraordinary addendum, signed only by Todd Blanche, that claims that Donald Trump and his family are forever protected from audits of past tax returns. “Nothing has changed with that,” Blanche said about the audit immunity addendum.

But this pillar rests on shaky ground: it is unclear how long it will remain standing.

• Blanche explained to Congress that “Anytime the I.R.S. settles with an individual taxpayer or another company, as part of the settlement, it’s standard, it’s typical to get rid of past ongoing audits.”  But this is no typical settlement, because it doesn’t appear to constitute an exchange of anything of value. It looks more like a pledge: It’s clear what the president is getting out of the pledge, but what is the IRS getting out of it? As lawyers say, where’s the consideration? (The fact that the President has dismissed his suit against the IRS can’t be the consideration; that was a product of the settlement, not the addendum.) A pledge signed only by the acting attorney general cannot serve as a binding addendum to the settlement, any more than an addendum signed by only one party can form a binding contract. One party cannot unilaterally tack on a new condition into a contract after the contract has been agreed upon by all parties. In short, this looks like an unenforceable addendum, and a future Democratic presidential administration would likely ignore its promises.
• The pledge may rest on prohibited conduct. It looks an awful lot like a presidential self-pardon, and there is a strong argument that it is unconstitutional. It is flatly illegal for the president to request the IRS to terminate any audit or any other investigation of a taxpayer’s tax liability.
• The pledge may also require prohibited conduct. The same statute that prohibits presidential meddling through the IRS expressly excludes the Attorney General from the set of prohibited requestors. Nonetheless, if a court ever examines whether the Attorney General was acting inside or outside the scope of his authority when he signed this pledge, Todd Blanche would have to answer some very difficult questions. Can the Attorney General dictate the conduct of the IRS generally? Did the Attorney General pay appropriate attention here to his fiduciary duties as an agent of the United States? How could one argue, with a straight face, that Blanche was not behaving as the agent of the president here? 
• The president’s Executive Order 14215, which prohibits any executive branch employee from advancing “an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law,” appears to invite the creation of conflicts of interest here. That Order’s attempt to enforce something like the unitary executive theory—namely, that the president is in charge of the entire executive branch—could provide answers to some of the concerns raised above but could also put both the attorney general and the president into untenable positions. And attorneys are supposed to resolve conflicts of interest, not create them. 

Where are we now? As both Abraham Lincoln and George Costanza reminded us, a house divided against itself cannot stand. The Anti-Weaponization Fund is now collapsing—not just because it is corrupt and scandalous on its face, but also because of its many internal tensions. As I write this, the US Senate has narrowly failed to pass (49–50, with the 49 composed of 3 Republicans plus all Democrats) a measure that would block the Anti-Weaponization Fund’s establishment. It is surely just the first of many unpleasant votes for congressional Republicans involving the Fund over the next few months. And the prospect of Fund scrutiny from two separate federal courts suggests that it rests on an increasingly uncertain foundation.