This week, work continues on the planned celebration of Donald Trump’s 80th birthday, which coincides with Flag Day, on June 14. Work continues on the bizarre structure that is being built to serve as the Ultimate Fighting Championship (UFC) arena for the cage matches that will be held on the White House lawn. UFC President Dana White has suggested in interviews that the administration is “hoping the spectacle will inspire patriotism among Americans at a time many are feeling uncertain about the economy, foreign conflicts overseas and other issues.”
It’s impossible to avoid conjuring images of what would have happened if Barack Obama, Bill Clinton, or George Bush—either of them—had built a venue for cage matches on the White House South Lawn. The spectacle is part Hunger Games, part Back to the Future—the part about Biff Tannen’s Pleasure Paradise, the garish, multi-story casino plastered everywhere with Tannen’s name and face. Biff was modeled on Donald Trump.
The Pentagon is recruiting soldiers to attend in uniform, after paying for their own travel. They must also be tall and fit. “No fatties” will be permitted to attend, according to a CNN report. But Trump, according to a medical report released late last Friday, has gained and weighs 238 pounds, which is close to clinical levels of obesity for a man of Trump’s stature. He will undoubtedly be in attendance since the fights are how America will mark his birthday. But it’s not just the hypocrisy we’re in for a dose of this week. As we’ve been discussing, it’s the kleptocracy. And yet, there is good news on this front to take to heart: Lawyers and courts are pushing back, with more developments on the way this week and next. 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 requirement comes from Article III of the Constitution, which requires an actual “case or controversy” exist before a federal court can hear a case. Courts may only consider actual, concrete disputes between adverse parties. As we’ve discussed before, although the case is styled as Trump v. IRS, it’s really Trump on both sides of the “v,” given his assertion of power to control all decisions in the executive branch as the unitary executive. Here, that means, as Trump has openly said, he had the ability to decide how much money he would pay himself to settle the IRS litigation. He even acknowledged that it “sort of looks bad.” Sort of. Courts only have jurisdiction over truly adversarial proceedings. That means the parties on opposite sides of a case, the plaintiff and the defendant, can’t be on the same side. They must have opposing interests and truly seek a resolution from a judge who acts as a neutral arbiter of their differences. Even though the case has already been dismissed, the former judges argue that under Federal Rule of Civil Procedure 60, a judgment can be set aside and the case reopened if the judgment results from a fraud on the court. “The purported ‘settlement’ that the parties never placed before this Court raises profound questions about the parties’ candor toward the Court and manipulation of the judicial system, which threatens to undermine confidence in the administration of justice.” They argue that they are entitled to ask for relief even though they were not parties to the original lawsuit, because under caselaw in the Eleventh Circuit (this case is out of a federal district court in Florida), “in ‘extraordinary circumstances,’ a non-party may raise a challenge of fraud on the court through Rule 60 even when the non-party’s interests are not directly affected by the judgment.” The judges go on to explain their view that the circumstances here are, indeed, extraordinary.
The argument is a smart one, asking the court to set aside its earlier dismissal of the case and open an inquiry into whether there truly was a case and controversy here and whether Trump perpetrated a fraud on the court: “Movants submit that this ‘settlement’ [the slush fund] is a product of collusion and is itself a fraud on the Court. But the Court need not decide that ultimate issue now. At this juncture, Movants request only that the Court exercise its powers under Rule 60 to set aside its order ending the case based upon Plaintiffs’ voluntary dismissal. That will allow the Court to commence an inquiry into whether the Court was deceived, including with respect to the existence of an underlying case or controversy and any purported arms-length negotiations undertaken to resolve it.” In Trump’s case, the creation of a settlement fund that allocates an exceptional amount of taxpayer funds that have not been designated for this purpose by Congress suggests the parties were not adversaries. This is not the kind of deal the Justice Department could sign off on, yet here, both the acting Attorney General Todd Blanche and the Associate Attorney General Stan Woodward have personally put their signature on parts of it. In addition to getting free use of taxpayer funds, Trump sweetened the deal by giving himself and his family forgiveness from any debts they owe the government, which some estimates suggest could be as high as $100 million owed from tax audits. In their brief, the judges write that the Trump plaintiffs’ lawsuit amounts to manipulation of the court, “which threatens to undermine confidence in the administration of justice.” They continue: “The parties have used this lawsuit—which was never an adversarial proceeding over which the Court even had jurisdiction—as a means to allow a ‘commission’ controlled by the President to dole out $1.776 billion in taxpayer dollars without constitutional or congressional authority to do so, and to confer unlawful private benefits to the President and his family by purportedly prohibiting the United States from prosecuting any and all claims against them … the parties’ settlement was not, and never will be, legally justified.” Judge Williams responded to the motion quickly, requiring Trump’s lawyers to answer for allegations that they committed a fraud on the court and filed the president’s lawsuit against the IRS as a “collusive” effort to create the $1.8 billion “anti-weaponization” fund.
The Judge notes that she is also entitled to “investigate serious misconduct as a collateral issue within the purview of Rule 11 and determine ‘whether an attorney has abused the judicial process.’” She can take up a Rule 11 inquiry on her own, without a request from a party, and may ask the offending party to explain what it has done. The Trump plaintiffs are to respond to the former judges’ motion by June 12, and specifically, they must answer:
She has granted the judges the ability to file a reply if they choose to by June 19, suggesting that she accepts their argument that they are entitled to file to reopen the proceedings, which the Trump plaintiffs will, naturally, deny.
Two footnotes in the Judge’s order suggest that she is already highly skeptical of how the Trump plaintiffs proceeded in the case:
There are other challenges to Trump’s slush fund underway. Judge Leonie Brinkema, in the Eastern District of Virginia, became the first judge to enjoin Trump from operating it. She has set a hearing for mid-June. The plaintiff in that case is Andrew Floyd, a former federal prosecutor—he was fired last July—who headed a task force that prosecuted January 6 cases.
As if the slush fund wasn’t a strong enough signal to Trump supporters about the rewards for loyalty, the government moved to dismiss the indictments of the Oath Keepers and Proud Boys whose convictions had previously been pardoned or commuted. But not so fast.
District Judge Amit Mehta ruled on Friday that the government’s motion to dismiss was insufficient. He asked for a “statement of reasons” that goes beyond a “conclusory statement” to justify the dismissal. Increasingly, the presumption of regularity is out the window, and federal judges are demanding that the government dot the i’s and cross the t’s like any other litigant would have to. So heading into the coming week, the government will have to get to work justifying its slush fund and its efforts to erase the cases against the most violent of January 6, even as it deals with another judge’s rejection of the “Trump Kennedy Center” the president tried to create. Trump has tried to lay claim to absolute power to rule the executive branch, if not the country. He’s manifested that claim in ways too numerous to count, everything from deciding to tear down the East Wing of the White House, to shutting down vital government agencies like USAID, to directing the Justice Department to indict people he viewed as enemies. He shows utter contempt for American democracy. Holding an Ultimate Fighting Championship on the lawn of the White House is a mark of disdain for what the presidency is supposed to represent. It’s important that the federal judiciary is holding the line. If you’re reading this newsletter, I know you’re doing your part. But far too many of our fellow Americans have resumed being frogs in the boiling pot of water. Trump continues to plunge in the polls, but we need more than that. We need loud and widespread condemnation of him in the court of public opinion, not just because the price of gas is high, but because he would bring our democracy to an all-time low. We must work as hard as we can to ensure as many people as possible understand this before the midterm elections. Civil Discourse exists because understanding what’s actually happening in our courts and our democracy matters—and because explaining it takes real work. I’m so appreciative of the members of this community who support my work. If you find this analysis valuable and haven’t joined us yet, consider becoming a paid subscriber. It’s $6 a month or $50 a year, and readers like you make it possible. We’re in this together, Joyce You're currently a free subscriber to Civil Discourse with Joyce Vance . For the full experience, upgrade your subscription.
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