Austin Sarat ScheerPost
Judges write like judges. The opinions they produce are for lawyers, law professors, and other judges, not for ordinary citizens.
Reading them is hardly a pleasant or edifying experience. But occasionally doing so is worth the effort.
I commend to you an opinion written by Federal District Judge Kathleen Williams. It is nothing short of a blockbuster.
On the surface, Judge Williams’s decision seems technical. It involves the question of whether President Trump and his lawyers tried to pull a fast one on the judge. They did so when they asked her to dismiss the suit he filed against the Treasury Department and Internal Revenue Service, seeking $10 billion in damages for the leak of his tax returns after the parties to the suit told the court that they had entered into a settlement agreement.
The settlement created a $1,776 billion “Anti-Weaponization Fund” to compensate people allegedly victimized by Biden Administration’s prosecutions. The settlement also absolved the president, his family, and his businesses of responsibility for any outstanding taxes they may have owed to the government.
When he announced the fund’s creation, Acting Attorney General Todd Blanche spoke about his belief that “The machinery of government should never be weaponized against any American…” and “the Justice Department’s intention to make right the wrongs that were previously done while ensuring this never happens again.”
In addition, he went out of his way to call the fund “lawful.”
However, when the settlement became public, it created such an uproar that Acting Attorney General Todd Blanche told a congressional committee last month that the “Anti Weaponization fund,” but not the tax immunity part, was dead.
In fact, in his July 21 written responses to the Senate Judiciary Committee’s inquiry about the immunity deal, Blanche answered “Yes” to a question asking if it was still in effect.
More about that in a minute.
Close to the beginning of Williams’s opinion, she does her judge thing and offers an extended discussion of “justiciability,” meaning whether the court has the power to act in any matter. For a case to be justiciable, there must be a real “case” or “controversy.”
Someone has to have suffered a real injury and the parties must be in a real dispute about who, if anyone, is responsible for it. Courts need a genuinely adversarial dispute or otherwise they cannot work as they should.
Judge Williams puts it this way. “The case or controversy requirement… limits ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’”
Sound like a page turner?
But dig beneath the legal jargon, and you find a judge whose opinion is an exposé of what looks like a swindle, the kind of inside job that might make for good entertainment. In Williams’ view, the swindler in chief was President Donald Trump, aided by Todd Blanche, the Acting Attorney General of the United States, and the president’s private counsel.
The “mark” she suggests is the American people, whose tax dollars the president wants for himself. The story Williams tells is as disturbing a story of greed and insider-dealing beggars the imagination.
In other times, it would have likely been enough to bring down a president. In our time, it should give voters pause as they consider whether to continue giving the president and his MAGA allies control of Congress in November.
That’s why it is worth reading and circulating, despite its sometimes-arcane quality.
Recall that last January, roughly a year after President Trump returned to the Oval Office, he, his two eldest sons and the Trump Organization, filed their lawsuit. It followed Charles Littlejohn, an IRS contractor, conviction for leaking the tax data of thousands of Americans and providing them to news organizations.
The suit alleged that “Defendants had a duty to safeguard and protect Plaintiffs’ confidential tax returns and related tax return information from such unauthorized inspection and public disclosure. … Accordingly, Defendants were obligated to have appropriate technical, employee screening, security, and monitoring systems to prevent Littlejohn’s unlawful conduct. Defendants failed to take such mandatory precautions.”
The president claimed that failure cause them “to suffer reputational and financial harm, public embarrassment, unfairly tarnished their business reputations, portrayed them in a false light, and negatively affected President Trump, and the other Plaintiffs’ public standing.”
It took a brief filed by 35 former federal judges to prompt Judge Williams to re-open the case she had previously dismissed. But reopen it she did and did with the vengeance of someone who had been duped as part of the swindle.
She pointed out what she called “startling misstatements” advanced by the president and his lawyers. Williams noted That the plaintiffs in the case are “public servants-the pinnacle of the executive branch-sworn to uphold the law.”
Instead, she wrote, “They ignored ethical norms, court rules, and legal authority manipulate the judicial process….(T)hey did so to gild their efforts to gain unprecedented access to the public fisc….”
As if reading from a handbook about president’ s so-called unitary executive theory, Williams noted that he “wielded actual and comprehensive control over the defendants in the case.”
In addition, the judge pointed out that the law explicitly prohibits “President Trump and his lawyers from asking for or promoting termination of an audit directed at him.” She was harshly critical of the Justice Department for “failing to enforce that law and protect the public interest….”
And in a compelling “gotcha” moment, the judge noted that Blanches’ ability to repudiate the agreement setting up the anti-weaponization fund on behalf of himself and the president, whose suit Blanche was duty bound to oppose “demonstrates that there was only one party whose interests were being represented throughout this case.”
In the end, Judge Williams pulled no punches. As she put it, “No sitting president has ever sued federal agencies completely subject to his control for monetary benefits…This action,” Williams concluded, “was presented for an improper purpose….”
While the judge could and did sanction the Trump’s lawyers and refer them for bar disciplinary proceedings, thanks to the Supreme Court’s presidential immunity decisions, she could not reach the president. And with the Republicans in control of the Congress there’s little prospect that they will act on Judge Williams’s damming indictment of the president.
Taking such action it’s now up to the American people. At the very least, they should make sure that after November a president who would do what this one did to enrich himself and his family and pay off his insurrectionist allies should not be aided by a Congress controlled by members of his party.
Read Judge Williams’s opinion and remember to vote this November as if the fate of the Republic depended on it.
Austin D. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is an internationally renowned scholar whose interdisciplinary work examines law in relation to culture, violence, and the liberal arts. His academic foundation includes a B.A. from Providence College (1969), an M.A. (1970) and Ph.D. (1973) from the University of Wisconsin, and a J.D. from Yale Law School (1988). He has also received honorary degrees, including an LL.D. from Providence College (2008) and an A.M. from Amherst College (1984). Sarat has also been awarded the Jeffrey B. Ferguson Memorial Teaching Prize at Amherst in 2022 and the Ronald Pipkin Service Award as well as many others
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