“Donald Trump’s slush fund scam seems to also give him, his family and his businesses immunity from any investigation or prosecution. Does this prevent future DOJs from looking into their scams?” — DMS
Hi DMS,
It purports to do that, but this is yet another untested question that only the future can answer.
In the meantime, let’s take a step back and analyze what we know about the “scam,” as you aptly put it.
On Monday, the Justice Department announced the $1.776 billion “Anti-Weaponization Fund,” which it established as part of a “settlement” in the case of Trump v. IRS. I put “settlement” in quotes because traditionally a settlement is when two parties in our adversarial legal system agree to resolve a case with a deal that benefits each side to the greatest extent possible.
But Trump was on both sides of this one. It was a fake deal, though it carries very real consequences.
Back in January, alongside his sons Eric and Don Jr. and the Trump Organization, the president sued the IRS and the Treasury for “at least” $10 billion over the leak of their tax returns during his first term.
The judge who presided over the case in Florida, Obama appointee Kathleen Williams, observed last month that “although President Trump avers that he is bringing this lawsuit in his personal capacity, he is the sitting president and his named adversaries are entities whose decisions are subject to his direction.” She said it was unclear whether the parties were “sufficiently adverse to each other” such that it was a real case that belonged in court.
But just as she started to probe the case’s fakeness, the Trump plaintiffs moved to dismiss their case. The judge obliged, apparently reluctantly concluding that, however shady the enterprise unfolding before her, she no longer had any role to play or power to wield.
The independent judge therefore had no oversight in the sham “settlement” that occurred between the two parties who were really one party (Trump). The resulting “settlement agreement” between the Trump plaintiffs and the Trump-controlled government said the “Anti-Weaponization Fund” was created to “provide a systematic process to hear and redress claims of others who, like Plaintiffs, state that they incurred harm from similar Lawfare and Weaponization.” As for the president, his sons and company, the agreement says they “will receive a formal apology from the United States, but will not receive any monetary payment or damages of any kind.”
Yet the fund is poised to take care of the extended family, so to speak. Pro-Trump Jan. 6 rioters and other allies of the president are lining up for taxpayer-funded paydays from the pot of money that will be doled out by a panel appointed by acting Attorney General Todd Blanche, Trump’s criminal defense lawyer whom the president brought along to Washington to spearhead the legal apparatus of his revenge-themed second term.
But Trump, his family and his businesses are receiving much more than an apology. And this gets to the “immunity” that you refer to in your question.
As if the settlement and resulting fund announced Monday weren’t corrupt enough, a separate document that emerged Tuesday, signed by Blanche, claims to grant legal immunity to the Trump plaintiffs and any “related or affiliated individuals” arising from “Lawfare and/or Weaponization” and “any matters currently pending or that could be pending (including tax returns filed before the Effective Date [of the settlement]) before Defendants or other agencies or departments.”
The terms are as broad as they are brazen. One tax law expert said the move “purports to put the president, his entities, and his family above the tax laws.” The New York Times reported that it “frees the president from a potential adverse ruling that could have cost him more than $100 million.”
Given that no one in the Trump-controlled government would be likely to take any adverse action against the president’s interests, the question of how future administrations will act becomes more important. The easiest way to answer that question is for a future administration to treat this whole thing like the sham that it is and force Trump and company to prove otherwise in court.
But that’s doubly uncertain, both in terms of when that would happen if it does, and what would happen if it did.
That raises more immediate questions of what can be done now. With the executive branch acting as a subsidiary of the Trump Organization, that trains our attention on the legislative and judicial branches. The former has largely been in Trump’s pocket too, though even some Republicans have spoken out against the sham fund. Still, barring (or on top of) any legislative action moving forward, that leaves us in the familiar territory of looking toward the judicial branch, which has been the bulwark against some of the administration’s excesses.
On that note, a lawsuit was already filed this week against the fund, by two police officers (one former, one current) who defended the Capitol on Jan. 6. They’re seeking to invalidate what their complaint called “the most brazen act of presidential corruption this century.” They allege that Trump created the “taxpayer-funded slush fund to finance the insurrectionists and paramilitary groups that commit violence in his name.” Their suit doesn’t directly challenge the separate Trump family immunity waiver. It’s focused on the fund itself, but if the suit succeeds, then that could call into question the immunity waiver as well.
We’re getting a bit ahead of things, because the case was just filed and it’s an open question whether the officers have legal standing to bring it. Importantly, that standing question must be answered before getting to the potent merits of their claim against the fund’s legality. “No statute authorizes its creation, the settlement on which it is premised is a corrupt sham, and its design violates the Constitution and federal law,” the officers alleged in their complaint, filed in Washington’s federal district court.
Yet if the court finds they don’t have standing to sue, then the merits of the suit won’t be addressed, because cases can be dismissed on standing grounds alone. The Trump government will have a chance to respond in court before a judge rules. If the government loses in the lower courts, it has the Supreme Court on “speed dial,” as Justice Sonia Sotomayor put it in a dissent last year.
All this leaves us in an unsatisfying place, with no clear path to address a clearly corrupt series of maneuvers. In a term already rife with Trump using the White House to enrich himself, this latest chapter of self-dealing to the president’s allies and himself and his family is unfolding in plain sight, all stemming from a sham settlement from a sham lawsuit. But it’s our real money.
As for the tax waiver that’s focused on the president and his family and businesses, it attempts to confer an immunity on top of the broad protection from criminal prosecution that the Supreme Court granted him in Trump v. United States.
But while the court’s GOP-appointed majority gave former presidents sweeping (though not unlimited) immunity for crimes they may have committed while in office, Tuesday’s corrupt addendum seeks to manufacture an extra layer of protection for any civil or criminal liability stemming from entirely personal financial wrongdoing that would not be shielded by the high court’s criminal immunity ruling, which was focused on official presidential acts. And it seeks to manufacture that protection not only for the president himself but also for anyone connected to him. Putting aside the settlement, the fund and whatever consequences come of any of this, Blanche’s signature on that addendum document marks one of the most corrupt presidential acts in modern memory.
One reason that we wind up parsing these unprecedented and uncertain legal questions is that the executive and legislative branches fail to do their jobs, which puts undue pressure on the courts. That is, this latest three-act corruption play — the settlement, the fund and the family immunity waiver, all set in motion by a shady lawsuit — warrants at least contemplation of impeachment for the president and any other officials involved in this abuse of power.
But we have no reason to think that this GOP-controlled House is going to start impeachment proceedings against Trump or any of his allies. I have wondered if this episode makes Blanche less confirmable for the full-time attorney general job if Trump were thinking of nominating him, which would be ironic if the acting AG performed this corrupt task in the hopes of securing that position. But it’s hard to bet on even a modest consequence like that.
Of course, this corrupt chapter comes as Trump has pushed to keep the Congress in the GOP’s control ahead of the November midterms, one of the benefits to him keeping the status quo being that he can ride out the rest of his term freer of any impeachment concerns.
That emphasizes the importance of voters’ power at the ballot box in November — to the extent that the redistricting battle backed by Trump and the Supreme Court’s GOP-appointed majority lets the American people choose their own representatives, rather than the other way around.
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