All the Lawsuits Against Trump’s “Anti-Weaponization Fund”
A special bonus mailbag edition!
Good morning! There was no newsletter on Monday for Memorial Day, but I still wanted to make sure you got three newsletters this week, so I’m doing an extra-special bonus mailbag edition for all subscribers.
There were two big questions I received that I wanted to tackle this morning: is Trump’s “Anti-Weaponization Fund” legal and is the IRS immunity his administration is claiming to be giving him actually binding?
I hope this will help clear up questions many of you sent in about the settlement. This newsletter is available to all subscribers, but this is a great example of the mailbag editions that are often sent out to paid subscribers on Fridays. If you like this one, and want to receive more of them, make sure to sign up to be a paid subscriber and you’ll get access to every mailbag column!
Let’s dive in…
All the Anti-Weaponization Fund legal battles
Q: What can be done to stop the Trump “slush fund”? And who is doing it?
Ironically, at this point, it seems like the most likely way the Trump administration’s $1.776 billion “Anti-Weaponization Fund” could be curbed is through a piece of legislation that President Trump has been championing for months, the Republican party-line package to fund ICE and CBP.
Senate Republicans abruptly left town last week and postponed work on the package in order to give themselves more time to discuss how to address the Anti-Weaponization Fund in the bill. (If Republicans don’t add any restrictions, or even if they do, Democrats will force embarrassing votes on amendments relating to the fund, which the GOP is hoping to preempt.1) The GOP conversations on this are still underway, but MSNOW reports that options being discussed include “eliminating the program altogether, giving Congress more of a say over who’s appointed to the commission overseeing the fund, getting the judicial branch involved in the process, and creating concrete standards for eligibility to benefit from the fund.”
That last bit about creating specific standards could include prohibiting January 6th rioters who committed violence against police officers from accessing the funds.
Of course, whatever provision the GOP agrees to will have to bring together at least 50 out of the 53 Republican senators and 215 out of the 217 Republican House members, since this is being added to a bill that is poised to pass along party lines.2 That will not be an easy task, considering the range of opinions on the fund within the GOP. It’s also possible that the Senate GOP internally agrees on an amendment with restrictions, but then enough Republicans vote for a Democratic amendment to end the fund completely; that would then need to pass the House, where the GOP’s right flank could then have objections.
It’s going to make for a fascinating fight within the GOP — as one of the few times that a consensus has formed among Republican lawmakers that they should rein in President Trump, though it remains to be seen exactly how — which will resume in earnest when the Senate returns from recess on Monday.
Meanwhile, there are also several legal battles underway to try to challenge the Anti-Weaponization Fund in the courts.
There are a lot of potential legal issues at play here. Way back in February 2025, I wrote that one of the biggest obstacles to the second Trump administration (like in every administration) would be the Administrative Procedure Act of 1946, which prohibits federal agencies from acting in a way that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Modern presidential administrations (especially the move-fast-and-break-things Trump team) frequently try to act in an “arbitrary” and “capricious” manner, and then courts will ding them for it and undo the action.
Here, you could imagine challenges against the Anti-Weaponization Fund arguing that it was “arbitrary” and “capricious” (basically, that the Justice and Treasury Departments rushed into this proposal, without going through a proper and transparent process) or that it was “not in accordance with law” (since there is no statute that creates the fund or empowers the Attorney General to appoint the commission that is being set up to oversee it).
The statute the Trump administration has pointed to is 28 U.S. Code § 2414, which created the Judgment Fund, the pot of money that is being used here, an unlimited appropriation set up by Congress in 1956 for the Attorney General to dip into whenever the DOJ enters into a settlement. However, the law says that it can be used either for “payment of final judgments rendered by a district court” (which this is not) or “compromise settlements of claims…for defense of imminent litigation or suits against the United States.”
That might sanction a settlement with Trump himself, who was suing the IRS in this case over the leaking of his tax returns. But January 6th rioters and other alleged victims of “weaponization” weren’t suing the IRS! The settlement itself says that it is also meant to resolve other lawsuits Trump had filed over the 2022 Mar-a-Lago raid and the Russia investigation, which is how it links itself to “other well-known examples of Lawfare and Weaponization” who could also bring lawsuits against the U.S. and therefore should be given relief through the $1.776 billion fund.
Will those count as “imminent litigation or suits against the United States”? That is another question the courts could decide. In addition, the Justice Department has said under previous administrations that money can only be drawn from the Judgment Fund for a settlement out of court if a monetary payment was likely to be ordered in court if the case had continued. Trump’s case against the IRS wasn’t exactly airtight, so you could imagine an argument over whether this settlement was actually one that a court was likely to order.
The list of legal hurdles goes on. The Appointments Clause of the Constitution requires that all “Officers of the United States” — a murky designation which has been interpreted to mean anyone who wields a lot of authority without someone directly supervising them — have to be confirmed by the Senate. The five commissioners who will oversee this fund will not be Senate-confirmed, but (per the settlement) they are given broad authority to hand out almost $2 billion in government funds. Does that raise an Appointments Clause problem?
Others have also pointed to Section 4 of the 14th Amendment, which prohibits the U.S. from paying “any debt or obligation incurred in aid of insurrection or rebellion against the United States.” This was written after the Civil War to make sure the U.S. government didn’t repay the debts incurred by the Confederacy. I’m not sure that it applies here, not only because a court would have to determine that January 6th qualified as an “insurrection,” but also because the fund doesn’t really purport to be paying anyone back for their debts incurred as part of carrying out the Capitol riot itself. It is about paying rioters back for legal fees incurred once the government prosecuted them for January 6th. That’s a bit different (and, even if applied, would only stop the fund from aiding January 6th rioters, not undo it completely).
Either way, the issue won’t be finding a legal argument to make against the fund. It will be finding someone to make it. Remember, in the U.S., to bring a lawsuit, you need to prove that you have “standing”: that you have been directly injured by the thing you are challenging in court.
So far, three groups have filed lawsuits against the Anti-Weaponization Fund. They all use a mix of different legal arguments from those above to say the fund is illegal. Here’s who they are and how they argue that it affects them:
Two police officers who defended the Capitol on January 6th, who argue that the fund “sends a clear and chilling message” that “those who enact violence in President Trump’s name will not just avoid punishment, they will be rewarded with riches,” and therefore injures them because it “increases the already sizeable risk of vigilante violence” that the two police officers face after testifying about January 6th.
A watchdog group called CREW, who argue that they are injured because they routinely request government records to put together reports, draft complaints, and testify before Congress, and the way the fund is set up, it won’t let them do that, because the settlement didn’t require the fund to preserve its records.
A January 6th prosecutor who was fired by the Trump administration, a California professor who was arrested in an ICE raid, the city of New Haven (which has been sued by the Trump administration as a sanctuary city), and the National Abortion Fund (whose member clinics have been protested at by defendants who were pardoned by Trump), who argue that they have been victims of weaponization, but they will not receive relief through the Anti-Weaponization Fund, and therefore that the fund is discriminating against them.
None of these are perfect lawsuits, and some of these arguments are a bit of a stretch. The strongest is probably those who allege that they are victims of weaponization who won’t receive relief — the only issue being, How do they know they won’t receive relief? They claim in their lawsuit that the funds will only go to Republicans, but the administration says that’s not true.
To be clear, I’m not saying that a fired January 6th prosecutor is going to be paid out by the Anti-Weaponization Fund. But it will be difficult to prove that in a court of law until they make a claim to the fund, and that claim is rejected or substantially delayed. Which means it might take some time before someone with meaningful standing emerges to sue the fund, although — who knows — it may already be congressionally overridden (or scaled down) by then.
IRS immunity?
Q: How influential will the DOJ ban on Trump audits be on any future corruption charges? Will it even be enforceable?
In addition to the aforementioned settlement, the DOJ also released an addendum by Acting Attorney General Todd Blanche asserting that the U.S. is “FOREVER BARRED and PRECLUDED” from prosecuting or pursuing any claims relating to tax returns filed by Trump, his family, their business, or other “related or affiliated individuals”
It’s hard to say how binding this will be. It probably won’t be possible to be tested until a future Democratic administration, which could try to bring tax charges against Trump, at which point he would surely sue and say the U.S. had violated its settlement agreement.
Then, the Democratic administration would probably try to argue that the settlement was illegally crafted. There are already a group of retired federal judges trying to make this argument, urging the judge in the original Trump/IRS lawsuit to reopen the case in order to investigate the legality of the settlement. They argue that lawsuits have to be “adversarial” — two parties actually fighting each other over something, not just colluding to bring about a certain outcome — and because Trump was suing his own government, this lawsuit was not.
That judge might not want to heed their urging to wade back into the case, but a Democratic administration could try to raise a similar point to argue that the lawsuit wasn’t adversarial, which means the whole underlying case was fake, which means the settlement is moot, which means a tax case against Trump could go forward.
The reconciliation process, which Republicans are using here, is really powerful because it lets majority parties pass things without the threat of a filibuster. But one of its downsides is it requires the Senate to enter into an open amendment process, which otherwise almost never happens these days, which allows the minority party to force the majority into taking embarrassing votes.
Though it’s possible that a handful of Democratic moderates, like John Fetterman and Jared Golden, will support the bill.