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Tonight: Long, but worth it. Judge Williams wrote an opinion where every word is precise and important, as she builds an airtight argument for reopening U.S. v. Trump for just long enough to undo Trump’s slush fund deal with himself and make it stick, hopefully, on appeal. Let’s dive in:
Back on May 31, which seems like a lifetime ago even though it was only six weeks, I wrote to you on a Sunday evening: “The $1.776 billion slush fund Trump is trying to get the courts to sign off on so he can reward January 6 defendants for their loyalty came under attack from an unexpected front last Wednesday, when 35 former federal judges filed a brief urging Judge Kathleen Williams to reconsider her dismissal of the case. They argued that the situation requires “judicial review of the extraordinary—and historically unprecedented—circumstances presented by this litigation and by the collusive ‘settlement’ that invokes this litigation as the legal justification for its terms.”
The issue, as you may recall, was that the lawsuit Trump brought did not involve a legitimate adversarial process. With Trump on “both sides of v” in the case, as both the plaintiff and the head of the unitary executive responsible for the decisions made by the defendant, the IRS, the judges suggested the case was tantamount to a fraud on the court. We discussed the case, why it was dismissed, and the motion filed by the former judges here if you want a refresher.
The Judge ends her opinion like this: “John Adams warned, ‘Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.’ Thus, whatever may be the Parties’ wishes, inclinations, or the dictates of their passion, they cannot alter the state of the facts or evade the rule of law.” Let’s see how and why she got there:
In a remarkable fifty-six-page decision, Judge Williams made her decision today. She is a former federal prosecutor who also served as a federal defender, and then as the Chief federal defender, before being appointed to the bench by President Obama in 2011. It doesn’t take her long to signal where her opinion is headed. On page 2 she writes, “After a review of the record, and the Parties’ statements, the Court declines to adopt or accept the credulous exercise of divorcing President Trump’s current job title from an understanding of what happened here.”
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In footnote 2 (you always read the footnotes in an opinion like this), the judge crystallizes her view of just how deep Trump’s hypocrisy goes: “Plaintiffs [Trump] also—with no apparent sense of irony—criticize the non-party movants’ [The 35 judges who filed the motion to reopen the case] political motivations, their previous disinterest in the case, and their purported inappropriate promotion of ‘abstract grievance[s].’”
She frames the case and the issue before her like this, “the most startling misstatement advanced by Plaintiffs is their characterization of this case as ‘ordinary.’” Yes, Trump and his lawyers really had the audacity to say that. The Judge calls them out for it—all the way out. “The Parties here are not private actors to a mine-run dispute, recounting their proficiency in the art of the deal they negotiated. Lead Plaintiff and Defendants are public servants—the pinnacle of the Executive Branch—sworn to uphold the law, faithfully perform the duties of their office, and protect the interests of the American public. The issue before the Court is whether, instead, they ignored ethical norms, court rules, and legal authority to manipulate the judicial process. The issue is whether they did so to gild their efforts to gain unprecedented access to the public fisc with the patina of legitimacy.”
“There is nothing ‘ordinary’ about this case,” Judge Williams concludes. “It is the very definition of sui generis,” lawyer-speak for being in a class by itself.
The case happened because a contractor leaked tax information for Donald Trump and lots of other people. As the judge points out in footnote 4, that happened during Trump’s first term. The man was prosecuted by the Biden administration and received a sentence of 60 months in custody. He was sued by a number of the other folks. They all complied with the two-year statute of limitations for filing suit.
Trump filed after the statute of limitations ran out. The judge noted that “In every case naming the government as a defendant, the DOJ engaged in a vigorous defense. That is, every case until the instant litigation.” Despite the statute of limitations issue and a host of other problems with the case, DOJ simply rolled over for Trump.
There must be an actual controversy between two parties with different interests on either side of the case for the court to have jurisdiction over a case. It’s not just a technicality. “Consonant with the general principle that ‘no person may sue himself[,]’” adverseness is lacking where one party controls the other party, and courts don’t hear cases like that. The Judge finds plenty of reasons here that the parties aren’t adverse including:
One Party Controls This Litigation: “Defendants are the Treasury Department—an Executive agency—and the IRS, the largest bureau of the Treasury Department. Both Defendants are unquestionably part of the Executive Branch and ultimately answer to its Chief Executive, President Trump.” Hoisted on his own unitary executive theory!
The Conduct of Executive Branch Actors Demonstrates Lack of Adverseness and Improper Motive: “Here, Defendants’ actions (or inaction), as directed by the DOJ, and the subsequent ‘resolution’ of this lawsuit leads the Court to conclude the Parties’ interests were ‘one and the same.’”
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But in the judge’s view, it goes beyond that. She is particularly concerned that high level Justice Department officials are still representing, and indeed have an obligation to continue considering, the interests of their former clients from private practice. The problem is that the Associate Attorney General, who signed the slush fund settlement agreement, Stanley “Woodward represented several individuals charged in connection with the events of January 6, 2021, at the United States Capitol. He also represented Walt Nauta, who was President Trump’s personal aide and a co-defendant in the criminal matter involving the return of classified documents at Mar-a-Lago.”
It’s a significant concern to the judge that the settlement agreement, created by the stroke of Woodward and Blanche’s pens, is meant to fund claims raised by people who were defendants in a number of different situations involving Trump, including the Mar-a-Lago Documents Case and January 6, which she writes, “have been referenced as quintessential Anti-Weaponization and Lawfare claims.” Then she draws the trap shut, noting that “Instead of either recusing because of their previous representations or vigorously defending this lawsuit as required to do so by DOJ policies and procedures, these lawyers [Blanche and Woodward] agreed to a ‘settlement’ involving a staggering amount of money potentially benefitting former clients.”
Blanche has additional issues. He was also involved with the Release Order, which the Judge notes was “signed only by Acting Attorney General Blanche, extends a blanket grant of immunity to all Plaintiffs and their families and ‘affiliates,’ and precludes all ‘current or possible’ investigations or actions before any other agencies or departments. The Release Order also purports to bar the IRS from conducting any future tax audits of President Trump, his sons, and their entities.”
That’s a real problem because it violates a law titled “Prohibition on executive branch influence over taxpayer audits and other investigations,” which, the judge notes, “states: It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer…The explicit text of this statute prohibits President Trump and his lawyers—one of whom was former White House Counsel—from asking for or promoting termination of an audit directed toward him.”
Trump v. IRS is starting to look like a case of “be careful what you ask for.” Not all judges in the Southern District of Florida are Aileen Cannon, and Judge Williams has combed through the record in detail to determine, factually and legally, what the outcome should be in this matter.
So the judge concludes that there was never jurisdiction for a court to hear this case because the parties interests never diverted. “Whether Executive Branch actors can privately agree to give themselves and their former clients blanket immunities and billions of dollars in tax monies for legally undefined grievances was never an issue advanced to this Court. The question is whether the Parties could do so by claiming to be adverse and engaging the legitimacy of a court proceeding. The answer is a resounding ‘no’: the Lead Plaintiff and the Government are one, a fully realized unitary interest. Because ‘Plaintiffs have no answer for the fact that the [L]ead Plaintiff, President Trump, directs and controls the Defendants[.]’”
Rule 11. You may recall that we anticipated this argument when we initially discussed this case. The judge notes she can consider Rule 11, even after the case is closed, without a request from any party. The Rule provides a remedy against litigants who engage in frivolous behavior and the judge notes, “when an attorney files a pleading in federal court, he certifies that, among other things, the pleading is not being presented for an impr