Photo-Illustration: Intelligencer; Photo: Getty Images
This week, the Justice Department announced that President Trump intended to settle his unprecedented $10 billion lawsuit against the U.S. Treasury and Internal Revenue Service with an equally unprecedented agreement. The deal mandates the creation of a nearly $1.8 billion Anti-Weaponization Fund intended to use taxpayer dollars to redress alleged claims of “lawfare.” There is widespread concern that claims would likely be filed by Trump allies and even January 6 rioters, something the Justice Department did not rule out. The fund quickly prompted intense political pushback, including among Republican senators, to the point that it helped derail a planned vote on a spending bill on Thursday.
It also gave rapid rise to legal challenges. On Wednesday, officers who fended off rioters on January 6 filed the first lawsuit to block the fund. And 93 House Democrats, represented by former New Jersey attorney general Matt Platkin and his firm, Platkin LLP, filed an amicus brief challenging the settlement as unconstitutional. But will this be enough to block payments from going out? I spoke with Platkin about the legal recourse to the Trump administration’s brazen new plan.
You are representing 93 House Democrats in a brief challenging the settlement, arguing that the lawsuit runs afoul of Article III of the U.S. Constitution and that Trump’s “blatant self-dealing makes this matter a collusive suit.” Could you walk me through your position?
For people to get into court, there has to be an actual conflict between them. They actually have to disagree. Like, you can’t call somebody up and say, “Hey, I’m going to sue you. You’re going to settle this. Let’s go in and do it together and it’ll sort of work out for everyone.” That’s a collusive suit, which is illegal under our Constitution. So, in order for a court to have jurisdiction, there has to be actual adversity and, without that actual adversity, the Department of Justice can’t just settle a suit.
That prevents you from doing exactly what the president did, essentially somebody in a position of power or with connections calling up the government and saying, “Hey, I want you to pay me. I want you to do something. I’ll just sue you, you’ll settle it out, and we’ll be done.” That’s what happened here, and that’s why we weighed in. But the 93 members weighed in to say that the judge, even if they settled the case, could have asked some tough questions of the parties.
And Trump’s move to dismiss the case came just days before a key deadline in the IRS case when the president’s legal team and the DoJ needed to present arguments proving the court had jurisdiction.
Nothing about this case was normal. Basically, Charles Littlejohn allegedly leaked this data in 2019-2020 affecting a huge number of people. It wasn’t just Donald Trump. And there was a whole bunch of litigation about it involving the federal government, and they’ve asserted defenses. There were some basic defenses here, including that the president clearly filed this case too late and it should have been kicked on those grounds alone. But the Department of Justice never did any of that here, even though they had asserted those same defenses in other cases involving the same facts. They, in fact, never even put an appearance on the record. That’s the first thing you do when you’re representing a client. You file a notice of appearance so the judge knows who the lawyer is in the case. Instead, there were public reports that they were going to settle this case, so the judge actually did something fairly extraordinary. She ordered a handful of really prominent attorneys to essentially advise her on whether a case existed, whether that adversity that I talked about before existed. And they essentially wrote a brief saying “no.” So everybody was supposed to file their briefs, meaning the parties. They were supposed to argue the same thing by May 20, and in a week there was supposed to be a hearing on the issue. The fact that they never even filed their briefs for that hearing suggests they knew the case was going to get dismissed, and that it would kill their ability to settle it. What they did instead is come forward and say, “You know what? We can resolve this ourselves. We’ll dismiss the case.”
The Justice Department claims that the creation of the Anti-Weaponization Fund is supported by precedent set by the settlement of the Keepseagle v. Vilsack case, which established a fund to address discrimination claims from Native American farmers against the federal government. In your opinion, are there any legal similarities between these two situations?
That’s the one thing they’re pointing to, saying Barack Obama did the same thing — which is completely ridiculous. That was a case alleging racial discrimination against Native American tribes, and the relief went to people of Native American ancestry. And I would note it was managed by a judge, which I think is a huge difference here. It’s not like the judge was taken out of the picture and told that she couldn’t do anything.
But the bigger thing is that this case was about the leaking of tax returns that took place in the first Trump administration. And to settle it, they are providing almost $2 billion of taxpayer funds to whoever they deem the government has been “weaponized” against. What does that have anything to do with what a contractor who was an employee for Booz Allen did seven years ago? It’s completely ludicrous. Even if you take issue with the Department of Justice’s prosecutions, this case wasn’t even about that.
And they made this point, that they’re not subject to tax liability because the $1.8 billion is for other people. The general rule is that if you get a settlement and give it to another person, it’s still a benefit to you. There are many extraordinary things about this — but the federal government essentially giving the president of the United States tax advice on how he can avoid paying taxes on the settlement is also crazy.
The Justice Department followed up its announcement with an addendum to the deal that essentially bars the IRS from pursuing any tax penalties against Trump, his eldest sons, and his businesses. Is there any precedent for that sort of action?
No. It’s actually a federal crime for the president or people who work in the White House to directly or indirectly request or order the opening or closing of an IRS audit. So, no, there’s no precedent for that. I would imagine it’s unprecedented — it’s certainly extremely bizarre — to amend the settlement agreement the day after you post it. I’ve never seen that.
Critics are concerned that the fund would largely exist to provide payouts to Trump allies. Attorney General Todd Blanche left the door open for January 6 rioters to qualify. With what we know about the settlement so far, is the government required to make the names of any future recipients public?
They’re saying that they can keep it confidential for privacy reasons, which is crazy. There are all kinds of issues with how this thing is being set up and the legal authority they have to do it, but the attorney general is picking five people to essentially dole out $2 billion in taxpayer money to whomever the president deems appropriate. I would note it could include the president himself. The terms of the settlements say he can’t get paid for the claims present in this case. It doesn’t say he can’t come in and say, I’m a victim of some other effort to weaponize the government against me and pay me for that. I’m not going to say the attorney general was untruthful, but he certainly was not completely candid with Congress when he said that the president won’t be getting money. We don’t know that yet. Until this thing closes, I’m not willing to concede that he won’t try to do it. I mean, he wouldn’t even say that people whose conduct resulted in the death of a police officer and stormed Capitol Hill and engaged in an insurrection, that they might get paid. There is no precedent for any of this. This is completely insane.
Lawmakers in Congress, including Republican members, have shown an interest in potentially placing limits on the fund and are reportedly exploring their legislative options. Just today, Congress postponed deliberations on its reconciliation bill over disagreements on how to address the fund. Does this level of bipartisan support give you hope that it could be reined in or even blocked?
Hope springs eternal. I do think Congress should act. Look, Republicans in Congress should care about this, even if they aren’t moved by the blatant corruption, which they should be, or the self-dealing or the payments to people whose actions resulted in cops being killed. Just think about it from an institutional perspective. If the president can sue himself and settle for whatever he determines is the appropriate amount of money, for whatever purpose he decides he wants to use it for, what role does Congress actually have anymore in appropriating spending? If a Democratic president comes into office and wants to create single-payer health care, they’ll just sue themselves and pay for it that way. That’s what the president essentially did here. The whole idea of our government is that ambition is supposed to counteract ambition, that institutions are supposed to stand up. The Republicans in Congress have been wholly absent for the last year and a half. So hopefully they will stand up on this and, hopefully, they understand that the American people are not going to be happy about the president, during an affordability crisis, paying his friends and allies $2 billion while they’re getting nothing.
Beyond the congressional angle, it seems to be an open question whether the fund can be challenged specifically on behalf of the taxpayers. Some experts point to the potential difficulty of finding plaintiffs who would have standing to sue. Do you think regular opponents to the fund have much recourse here?
It’s true that taxpayers generally can’t just come in and say they don’t like how taxpayer money is being used. But if you are particularly injured as a result of an unlawful federal act, you can go to court and challenge those. There was a case filed yesterday in the District of Columbia on behalf of January 6 law-enforcement officers. I think as this thing gets stood up, you’re going to see even more cases, because my suspicion is there’s going to be a lot of things done here that are not following proper process.
This interview has been edited for length and clarity.
