Donald Trump and his partner in crime, acting Attorney General Todd
Blanche, have constructed what may be the most brazen
heads-I-win-tails-you-lose arrangement in the history of American government.
And to be clear about who is on the short end of both sticks: It’s the American
public, you and me. We’re the ultimate suckers in Trump-Blanche world.The $1.776 billion Anti-Weaponization Fund was created through a
settlement agreement purporting to resolve Trump’s claims that a contractor for
the IRS unlawfully disclosed his tax information (as indeed he did, but that
doesn’t alter the multiple fatal failings with the lawsuit, including its
unconstitutional collusive character). The agreement asserts that the fund
“is not taxable income as to Plaintiffs, who receive no economic benefit
from this Settlement Agreement.” Elsewhere, the document declares that
Trump is not receiving “damages of any kind.” This framing is doing
enormous legal work. It is also a fiction.Blanche and Trump (let’s just call them Blump) have to have it both
ways for the sinister arrangement to be even arguably legal. They need it to be
a settlement because that is what gives the fund its veneer of legitimacy, and
its access to federal dollars. A settlement of genuine legal claims provides
the necessary hook for disbursing nearly $2 billion in public money.But they equally need the no-economic-benefit fiction, because if Trump
benefits, he may well have taxable income, and the whole arrangement starts to
look like what it is: a president using the government he controls to enrich
himself and his political movement, reviled by many if not most Americans, at
public expense. Among multiple other problems, that is the antithesis of
Blump’s core constitutional responsibility to the public.In fact, the agreement is not a bona-fide settlement. It also clearly
benefits Trump.Start with the settlement. To access the fund Congress appropriated for
DOJ to use to settle cases, the executive branch essentially must certify that
there is an actual legal claim that could have been brought and adjudicated in
court. This claim cannot clear that bar, because, as U.S. District Judge
Kathleen Williams perceived, the entire lawsuit is a product of collusion
between the plaintiff and the government he controls. Trump sued an IRS that
answers to Trump, both legally and practically. And the IRS, after preparing a
memorandum urging the DOJ to defend the lawsuit as it has successfully in
similar cases, signed the agreement through its “Chief Executive
Officer,” Trump appointee Frank Bisignano. That meant it officially
affirmed the statement that the fund corpus is not taxable income and that
Trump receives no economic benefit. The fox didn’t just guard the henhouse. It
signed a sworn statement that no hens were harmed.Now the benefit. We can begin, before analyzing the specifics, by
asking whether there is a single act Trump has undertaken as president, ever,
that wasn’t intended to benefit himself. Here, there are various and
substantial benefits, but the overriding one, which the coverage has so far
largely ignored, is the official imprimatur on Trump’s bottomless obsession
with rewriting and falsifying the past. The fund’s entire premise—embedded in
the recitals, baked into the eligibility criteria, woven through every page—is that January 6 was not an insurrection; rather, it was an act of lawful
political protest met with government persecution.And then there is the addendum, which plainly provides an enormous
benefit to Trump.One day after the court dismissed the case, Blanche signed a separate
order on attorney general letterhead. It purports to release, waive, and forever discharge
Trump, his family members, and his companies from any tax liability, including
for returns filed before the settlement’s effective date. It is in essence a
golden forever pass, with no court supervision, no pending case, and no legal
instrument authorizing it.This is a tax amnesty worth potentially hundreds of millions of
dollars, issued unilaterally, the day after the lawsuit it purports to
implement was already dismissed.The addendum is utterly squirrely about whether it’s part of the
consideration for the settlement. It begins by noting the fact of the agreement
and then simply recites this valuable waiver in a separate paragraph. Blump is
trying to have it both ways, for obvious reasons.If the addendum is untethered legally to the agreement, that means it’s
a freestanding huge benefit to Trump, paid directly by the public, which
receives not even a fig leaf of something in return. That means it is also
unconnected to any legal justification that the settlement might provide.
It stands alone as a freestanding gift of public money, and forgiveness of
public debt, from a president to himself.If on the other hand it’s part of the bogus “deal,” the
problems for Blump quickly proliferate. A first-year law student will tell you
there is no enforceable contract when one party gets something for nothing.
Worse, if it’s part of the agreement, that implies that Trump has traded his
(worthless) lawsuit for the forgiveness of potential liability. And that in
turn implies that the value of the benefit to Trump should be taxable under
governing Supreme Court precedent, whatever legal pronouncement the agreement
recites to the contrary.Moreover, the arrangement is so thoroughly the product of collusion
that under hornbook law it would be void for fraud and
deception. That means that, Blump’s best efforts notwithstanding, it cannot
bind a future administration even if no IRS under Blump’s thumb would assert
the public’s rights to the huge tax bill.Blump’s heist transgresses the authority of all three branches of
government—Congress, whose appropriations power it bypasses; the courts,
which were deliberately bypassed before jurisdiction questions could be
answered; and even the executive branch’s own legal constraints on self-dealing
and assigning settlements to third parties. But in the end, the constitutional architecture is not the deepest
victim here. We are. Blump is trying to force the public, without consent and
without recourse, to trade billions of dollars of public money for much less
than a mess of pottage: a tax amnesty for a billionaire president, a slush fund
for his allies, and an official rewrite of January 6. The whole arrangement is
dripping with contempt for the American people. We can’t let it disappear into
the pile of Trump outrages that benumb us. We must keep the brightest light we
can kindle shining on this one.