A retired Las Vegas federal judge believes a court filing by him and other former judges may have influenced the Trump administration’s decision to abandon a controversial $1.8 billion “anti-weaponization” fund.
The fund to compensate those purportedly targeted by the government was created as part of a settlement in a lawsuit between President Donald Trump and the Internal Revenue Service over the leaking of Trump’s tax returns.
Retired U.S. District Judge Philip Pro, an appointee of President Ronald Reagan, was one of over 30 retired federal judges who filed a motion May 27 seeking the reopening of the lawsuit and suggesting that the judge overseeing it could investigate “whether a fraud occurred.”
Two days later, Miami U.S. District Judge Kathleen Williams ordered Trump to respond to the judges’ motion.
“Here, the non-party movants advance grievous allegations that Plaintiffs voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that ‘was collusive from the start’ and was only filed to provide the imprimatur of legality for an unlawful settlement,” Williams wrote.
Pro said he thinks the retired judges’ motion also contributed to the Trump administration’s backing off of the fund in the last week, along with other factors, like opposition from Congress and media scrutiny.
“I would not be surprised if it did have an influence, but I could not quantify that,” he said in a recent interview.
Federal agencies involved in the suit did not respond to requests for comment, but a spokesperson for Trump’s lawyers provided a statement.
“The IRS wrongly allowed a rogue, politically-motivated employee to leak private and confidential information about President Trump, his family, and the Trump Organization to the New York Times, ProPublica and other left-wing news outlets, which was then illegally released to millions of people,” it said. “President Trump continues to hold those who wrong America and Americans accountable.”
‘It smacked of collusion’
Williams dismissed the lawsuit at the request of the Trump family on May 18, noting in an order that there was “no settlement of record.”
The same day, the Justice Department announced that there was, in fact, a settlement, in which the federal government would set up the so-called ‘Anti-Weaponization Fund.’
The fund was widely opposed. Some expressed concern that rioters who participated in the Jan. 6, 2021, attack on the U.S. Capitol could seek payments. A federal judge in Virginia temporarily blocked it from advancing.
Acting Attorney General Todd Blanche announced in congressional testimony Tuesday that the administration would not move forward with the fund.
Trump has been less definitive in recent public comments, saying he did not know the status of the fund, but calling it “a beautiful thing.”
Pro saw the case — Trump suing his administration — as “a lawsuit between you and yourself” at the expense of taxpayers. The legal system depends on opposing parties represented by competent lawyers, he said.
“It smacked of collusion and frankly, could be interpreted as a fraud upon the court,” Pro said.
The filing from the retired judges asserted that besides setting up the anti-weaponization fund, the settlement also relinquished IRS audits against Trump.
“The Settlement Agreement establishing the Anti-Weaponization Fund was not before the Court and the broad purported release of Plaintiffs’ known and unknown liabilities was neither announced nor publicly released until after the case had been dismissed,” the motion said.
Pro, who left the bench in 2015, believes the motion influenced the judge’s response, though he also questions whether the judge would have reacted in the same way without it.
What other experts think
Legal experts saw the filing as a significant move.
Devon Ombres, senior director of courts and legal policy at the Center for American Progress, a left-leaning think tank, said the retired judges’ filing “had a huge impact” and noted Williams’ order following the motion.
“I’m sure it played a role in the administrations’s calculus,” Ombres said.
Greg Brower, a former Nevada U.S. attorney, observed that the judges who signed the motion were appointed by both Republican and Democratic presidents.
“They just have a wealth of credibility, I think, and experience in such matters, and so I think it’s important that they speak out as they have,” he said.
Brower attributed the Trump administration’s apparent retreat from the anti-weaponization fund to opposition from Republicans in Congress more than any other factor.
Bob Levy, chairman emeritus of the libertarian Cato Institute, was less positive about the retired judges’ action, though he emphasized that he was not an expert on judicial ethics.
“Retired judges are certainly entitled to express their views,” Levy said. “Maybe the easiest way to do that is to write an op-ed or a law review article or, I suppose, even though this is getting close to the line, a letter to Judge Williams reflecting their concerns. Those things might have been appropriate, but a formal motion requiring an allocation of the court’s time and resources is most unusual.”
He added: “I’m certainly not a fan of this anti-weaponization fund, so I’m more than happy to see it get scrutinized, but I do think this is a peculiar way to do it.”
Retired U.S. Circuit Judge Kathleen O’Malley, who also signed onto the motion in the tax case, said the judges acted ethically.
She is not sure about the motion’s impact on the judge overseeing the case, but said, “I do think that the administration certainly paid attention, and the fact that the judge was asking for more justification and asking for a response I think made the administration realize that they might have been caught doing something that was a little less than kosher, should I say?”
Pro’s motivation: ‘A civic duty’
Pro has concerns that go beyond the lawsuit.
He thinks that Trump’s administration has shown disregard for the separation of powers, the independence of the judiciary and the rule of law, he said.
He wrote an article for the Clark County Bar Association’s journal last year expressing concern about threats against federal judges and attacks on them by executive branch officials dissatisfied with adverse rulings.
“Our active judges, our judges who are hearing cases, are not free to respond under the code of ethics that applies to us,” Pro said. “We as retired judges are able to. We no longer decide cases, we’re no longer making those decisions and we are free to speak up.”
After his article for the bar association was published, another retired judge contacted Pro about the Article III Coalition, a group of retired judges who aim to defend judicial independence. Pro joined. The motion in Florida was not formally done through the group, said O’Malley, also a member of the coalition.
The judges come from different ideological backgrounds, Pro said, but “there’s no light between us when we talk about defending the Constitution, about adhering to the separation of powers, adhering to the independence of the judiciary.”
Pro sees himself as a defender of the Constitution, not an opponent of Trump.
“I think it’s a civic duty,” he said of his current efforts. “I think it’s my responsibility.”
Contact Noble Brigham at nbrigham@reviewjournal.com. The Associated Press contributed to this report.
