There are "serious legal questions" about creation of DOJ "anti-weaponization" fund, expert says

Key Concepts

• Congressional Appropriation: The constitutional power of Congress to control government spending.
• Collusive Litigation: A legal scenario where the same party (or entity under the same control) acts as both plaintiff and defendant.
• Power of the Purse: The constitutional authority granted to Congress to manage the federal budget and authorize the expenditure of funds.
• Settlement Fund Precedent: The historical and legal standards used to establish victim compensation funds.
• Third-Party Payments: The practice of directing settlement funds to entities not directly involved in the underlying litigation.

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1. Lack of Legal Precedent for the Fund

Rosa Brooks, Legal Director for the Institute for Constitutional Advocacy and Protection at Georgetown University Law School, asserts that the current fund is entirely unprecedented. Unlike previous compensation funds—such as the September 11th Victim Compensation Fund—this fund lacks:

• Congressional Authorization: No statute was passed by Congress to create or define the fund.
• Defined Criteria: There are no established guidelines for eligibility, specific harms to be compensated, or standardized award amounts.
• Judicial Oversight: The fund operates without the supervision of a court, raising significant legal questions regarding its formation and funding sources.

2. Comparison to the African-American Farmers Settlement

The acting Attorney General, Todd Blanche, attempted to justify the fund by comparing it to a settlement involving African-American farmers who were historically denied access to agricultural programs. Brooks argues this comparison is flawed for several reasons:

• Court Supervision: The farmers' settlement was the result of a court order and was subject to ongoing judicial oversight.
• Direct Victim Compensation: In the farmers' case, the majority of funds went to the actual victims of the alleged conduct.
• Controversial Precedent: The small portion of the farmers' settlement that went to "non-parties" was highly controversial. This practice was eventually banned by Attorney General Jeff Sessions during the first Trump administration, specifically to prevent settlement money from being diverted to third parties.

3. The Unprecedented Nature of the Lawsuit

The discussion highlights the unique and problematic nature of the underlying litigation:

• Collusive Litigation: The President sued the Internal Revenue Service (IRS) for $10 billion following a leak of tax returns. Brooks notes that the President is effectively on both sides of the "v" (the plaintiff seeking the settlement and the head of the executive branch controlling the defendant). This creates an inherent conflict of interest that is legally unprecedented.
• Diversion of Funds: Under standard legal and constitutional practice, money recovered by the United States through litigation must be deposited into the General Treasury. This ensures that Congress maintains its constitutional "power of the purse" to appropriate funds. The legal authority used to bypass the Treasury and divert these funds into an "anti-weaponization fund" remains unclear and legally suspect.

4. Synthesis and Conclusion

The primary takeaway is that the fund represents a significant departure from established legal norms. By bypassing Congressional authorization, operating without judicial oversight, and utilizing a collusive litigation structure, the fund challenges the constitutional separation of powers. Brooks emphasizes that the diversion of settlement money away from the General Treasury undermines the legislative branch's authority over federal spending, marking a departure from the standard practices seen in previous government-led compensation efforts.