No Benefit, My Ass

Trump, as always, is trying to have it both ways.

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 the Trump-Blanche world.

The $1.776 billion Anti-Weaponization Fund was created through a settlement agreement purporting to resolve Trump’s claims that an IRS contractor unlawfully disclosed his tax information (as indeed he did, but that doesn’t alter the lawsuit’s multiple fatal failings, 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 an utter fiction.

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Before analyzing the cheating legal gymnastics, it’s important to rebut a viciously false claim that lies at the core of the settlement agreement.

After reciting Trump’s lawsuit, the agreement declares that the conduct alleged in Trump’s case ”is representative of the sustained use of the levers of government power by Democrat elected officials, political and career federal employees, contractors, and agents in order to target individuals, groups, and entities for improper and unlawful political, personal, and/or ideological reasons (“Lawfare” and “Weaponization”).” Redressing this alleged weaponization by the Biden Justice Department is the animating purpose of the $1.776 billion fund.

There is a risk that the constant repetition by the Trump Administration, amplified by loyal media outlets such as Fox, is permitting this allegation to take hold.

In fact, it is wildly, demonstrably false, and it’s critical that we not let it take hold by dint of repetition.

The Biden Justice Department did not weaponize the criminal law against Donald Trump or anyone else, most particularly the approximately 1,575 federal criminal cases arising from January 6, virtually all of which proceeded to guilty verdicts.

That is not a matter of partisan framing but of objective institutional standards. Under the Justice Department’s own Principles of Federal Prosecution, prosecutors are supposed to bring charges only when two conditions are met: that there is probable cause that a federal offense has been committed, and second, that the admissible evidence will probably be sufficient to obtain and sustain a conviction. Every prosecution brought by the Biden DOJ—Trump included—satisfied those standards. Nobody has demonstrated otherwise. Nobody can.

The case for weaponization begins and ends with the identity of the defendants, Trump and his loyalists and acolytes. That is a specious argument, given that each and every one of the charges satisfied the Principles of Federal Prosecution. Indeed, not to have prosecuted Trump and the participants in the attempted insurrection would have violated the core DOJ credo of justice without fear or favor.

The defendants were not victims of a rogue prosecution machine; they were individuals against whom the evidence supported charges, and who, in nearly every case, pleaded guilty or were convicted at trial, while not a single defendant was fully exonerated.

Compare that to what is happening now. Under Trump, Bondi, and Blanche, defendants have been charged with no factual or legal basis whatsoever, based solely on Trump’s antagonism. That is what weaponization actually looks like.

That fact makes the bogus settlement agreement all the more obnoxious. This administration is not merely repeating a lie; it is enshrining it in the annals of government. The fund’s very name, the letter from the Attorney General, the filings in federal court: they all memorialize in the formal records of the United States Department of Justice the Orwellian fiction that the January 6 defendants were victims of weaponization. The lie no longer just circulates on social media or gets chanted at rallies. It gets stamped with the seal of the DOJ and filed in federal court. It becomes, in some perverse sense, the official enduring position of the United States government.

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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 two billion dollars 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 of Americans, at public expense. Among multiple other problems, that is the antithesis of Blump’s core constitutional Take Care responsibility to the public.

In fact, the agreement is not a bona fide settlement. In fact too, it 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 Judge 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 signed on to the recital 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 done 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 6th 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 AG 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. 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, 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 6th.

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 kleptocratic heist.

Talk to you later.