Two U.S. Capitol Police officers who defended the building on Jan. 6, 2021, sued President Trump in federal court in Washington on Wednesday, seeking to block the $1.776 billion Anti-Weaponization Fund that acting Attorney General Todd Blanche unveiled Monday as part of the settlement of Trump's lawsuit against the IRS.
The filing is the first courtroom challenge to a payout vehicle that drew open skepticism from senior Senate Republicans the same day, and it opens a fight over whether the Justice Department can move nearly $1.8 billion out of the Treasury's Judgment Fund without a separate appropriation from Congress.
The lawsuit
The officers told the court that payouts to people charged in the Capitol attack would expose them to an increased risk of "vigilante violence" and harassment, according to CBS News. Monday's announcement directs the program to draw from the Judgment Fund, the 1956 statute the department says "is a perpetual appropriation allowing DOJ to settle and pay cases." Blanche told a Senate Appropriations subcommittee Tuesday the structure "was done during the Obama administration, something almost identical in structure," adding, "It is true that this is unusual. That is true, but it is not unprecedented."
GOP defections
Senate Majority Leader John Thune told reporters Tuesday he was "not a big fan" of the program and expects a "full vetting" during the appropriations process. Sen. Susan Collins of Maine, who chairs the Senate Appropriations Committee, said the fund "raises a lot of important questions that need to be answered" and called it "highly irregular," CBS News reported.
Rep. Brian Fitzpatrick, a Pennsylvania Republican, told reporters at the Capitol the arrangement was "completely unprecedented" and said he would press to "unpack what it is and then figure out what we can do within Article 1 authority to block it or unwind it," CNBC reported. Rep. Jamie Raskin, a Maryland Democrat, introduced a bill to bar Justice Department spending on the program; Sen. Chris Van Hollen, also a Maryland Democrat, said he would offer an amendment to the appropriations bill to block payments to those convicted of assaulting law enforcement officers.
The legal hurdle
Whether any challenger can get a court to act turns on standing. In a 1923 decision, the Supreme Court held a taxpayer's interest in Treasury money is too diffuse to support a suit, and Paul Figley, an American University law professor, told CBS News private plaintiffs are unlikely to clear that bar. Figley said the program appears legal but is not "good policy" and warned that "the next Democratic administration is going to find a group that it feels should get the same kind of a special deal."
Members of Congress face a lower hurdle. Former federal prosecutor Neama Rahmani told CNBC, "I still think the best legal argument" is that the fund violates the Constitution's Appropriations Clause, adding, "This isnt the 9/11 Fund," because Congress did not set it up.
The Keepseagle dispute
The Obama-era analogy is contested. Joseph Sellers, lead plaintiffs' counsel in the 2011 Native American farmers' settlement, told CBS News the crucial difference is judicial oversight: the trial court in Washington approved the claims process and the disposition of leftover money. The new program would instead be governed by a five-member panel appointed by the attorney general, and the president can remove any member.
The counterpoint
A Justice Department spokesperson told CNBC, "The only thing illegal and corrupt about this situation is the brazen weaponization of federal resources by previous administrations to retaliate against those with opposing political beliefs." The department, the spokesperson said, would "ensure those who experienced injustices are made whole." Trump said Wednesday he was not involved in negotiating the settlement and defended its purpose, saying of Jan. 6 defendants, "They went to jail, their families were ruined, they committed suicide," CNBC reported. Figley noted the Obama administration also routed roughly $1.3 billion to female and Hispanic farmers from the Judgment Fund.
The Senate Appropriations Committee is expected to take up the funding bill Van Hollen wants to amend in the coming days. The federal judge has yet to set a hearing on the officers' injunction request.