Acting Attorney General Todd Blanche announced on Monday, May 18, the creation of an “anti-weaponization fund” of some $1.776 billion, which will be drawn from a general pool called the Judgment Fund maintained by the federal government for the purpose of paying court-ordered remedies. The new Anti-Weaponization Fund, Blanche explained, is part of a settlement the administration has reached with President Trump, his sons Eric and Don, and the Trump Organization in their civil suit against the Internal Revenue Service for the leak of their tax records. Money in the fund, Blanche explained to a Senate committee on Tuesday, May 19, won’t go to the specific plaintiffs in that case. Instead, it will be doled out to “anybody in this country … if they believe they were victims of weaponization.” He also told senators that the fund could be used to make payoffs to those who violently assaulted police on Jan. 6—comments that likely offer a more accurate prediction of who could benefit from the Department of Justice’s generosity.To many critics of the Trump administration, the fund is simply another example of the White House’s corruption and mendacity; part of its disorientating habit of doublespeak—that is, launching accusations of illegal or immoral conduct against its enemies while engaging in that same action. And to be sure, there is reason to believe, as U.S. District Judge Kathleen Williams suggested, that the Trumps’ suit against the IRS lacks the kind of adversity between plaintiff and defendant necessary for a federal-court action. The Justice Department’s decision to settle also underscores the exact sort of political bias that the Trump administration complains about in the Biden administration. At the same time, as Kate Gilbert has forcefully explained, the Justice Department’s repeated claim that the Biden administration engaged in “weaponization” is based on spurious and groundless assertions of fact. So there is plenty of space for criticism.Nevertheless, it would be a mistake to chalk up the fund as simply another case in which the Trump administration has broken new ground by ignoring the law, or by finding a new way to twist a legal authority to unethical or improper ends. Rather, the fund is an instance in which a loosely drafted set of statutes has long been misused by administrations of both stripes. (The immunization of the Trump family from tax-related review is another matter.) Blanche’s proposed misuse of his settlement authority may be particularly objectionable because he is planning to reward violent, anti-democratic lawbreakers—but that does not mean the basic distortion of the legal system is novel.As I explain below, the attorney general has broad statutory authority to settle a lawsuit filed against the government and to order a large monetary payout to people who were not part of that original case. This authority has been used before by Democratic administrations in troubling ways, and their actions have escaped judicial review. The same is true now. Even though recent Supreme Court precedent suggests the attorney general may have used his settlement authority in an unconstitutional manner, it may be that no judge can analyze or address the issue—at least for now. Any remedy for ethical or legal violations will have to come from elsewhere.To understand these pieces of the puzzle, let’s start with Blanche’s authority under existing federal statutes, before turning to the precedent for his action during the Clinton and Obama periods, the constitutional case against the settlement, and finally the question of remedies.The Settlement Authority of the Attorney GeneralTo create the Anti-Weaponization Fund (AWF), the attorney general needs two kinds of power: first, the ability to settle a case filed against the federal government and, second, the ability to source the $1.8 billion slated for the AWF.Since 1789, the attorney general has had the authority to “prosecute and conduct all suits in the Supreme Court.” In 1870, when the Justice Department was established by statute, this office gained broad supervisory authority over “all other attorneys and counselors.” Just 18 years later, the Supreme Court named the attorney general as “undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States.” Today, federal law leaves no doubt that this power is “reserved” exclusively to that office. In 1933, President Franklin Delano Roosevelt issued an executive order authorizing the attorney general to “compromise” or “abandon” any case. Such settlement power has never been questioned. Indeed, it is hard to see why the broad discretion that necessarily follows from the attorney general’s litigation authority could be plausibly read to exclude it.Congress alone, in contrast, has the power of the purse. As Article I, Section 9, of the Constitution puts it, this means that government officials cannot spend money except in “Consequence of Appropriations made by Law.” This applied even when a court ordered the government to cough up. Until 1864, anyone who won a money judgment against the government had to then make an arduous trek over to Capitol Hill to petition legislators to enact a private bill authorizing a payout for their litigation win. It was only in the 1863 Court of Claims Act and a companion appropriations measure the following year that Congress created a fund covering anticipated judgments in future cases, and even then it capped the fund at $300,000.It took almost another century before Congress created an open-ended, permanent appropriation for money judgments against the government issued by a federal district court. Yet it limited the scope of that measure to judgments of less than $100,000 and excluded many federal agencies. (The Post Office, for example, had to pay for any slip-and-fall judgments in its far-flung locations on its own.) In 1961, Congress amended this Judgment Fund to allow payouts in settlements. Importantly, nothing in this amendment is limited to settlements approved by judges, as opposed to out-of-court agreements. And then in 1977, Congress took the fateful step of stripping away the cap on payouts.What resulted from this inch-by-inch pirouette of legislated changes was a spigot for government money that the attorney general can twist on or off at will. It is, in a sense, the power to write blank checks. Whether Congress fully understood the aggregate effect of these various changes, and the sheer wide-ranging discretion they leave in the attorney general, is another matter entirely. Indeed, in considering the legality of the fund, it is worth keeping in mind that the scope of attorney general discretion that now exists may be a wholly unintended effect of widely dispersed incremental changes to the statute.The Misuse of Settlement Authority Under Clinton and ObamaIn its initial announcement of the AWF, Blanche pointed to an Obama-era case, Keepseagle v. Vilsack, as a precedent in which this settlement power had been used to create a broad “administrative claims process” of the kind envisaged for the Jan. 6 rioters and others. The fund in the Keepseagle case benefited Black farmers who’d experienced discrimination at the Department of Agriculture’s hands, and who were allegedly represented by a member of President Obama’s transition team.Blanche’s reference to Keepseagle implies that a tit-for-tat logic: It also underscores the fact that the Judgment Fund and the settlement power have been combined in the past to yield payouts to politically preferred groups even when there was no real prospect of a legal challenge against the government prevailing in court—and not only during the Obama presidency. There is, in short, precedent for the AWF.Consider the case of between 1,400 and 1,700 Japanese Latin Americans, who were seized in Peru and other nations, to be transported and interned in the United States through World War II. After the 1988 Civil Liberties Act granted compensation for U.S. citizens and permanent residents interned during the war, these noncitizens filed civil suits demanding their own reparations. The statute on its face doomed their claims because of their non-U.S. citizenship and residency status. Yet the Justice Department reached a settlement in 1998 with these plaintiffs, giving each one $5,000—even though they had no practical possibility of prevailing in court. There is, to be sure, no moral equivalence between the interned Japanese and the Jan. 6 rioters. Yet both this Clinton-era case and the AWF are uses of the settlement power and the Judgment Fund to make payouts to politically favored groups absent a credible threat of litigation defeat. That is, they may be morally distinct but are legally parallel.The same year as the Japanese Latin American payout, the Clinton administration used the Judgment Fund to solve a foreign relations problem. Under a contract with General Dynamics for F-16 fighter planes, Pakistan had paid $658 million. After the sale, however, Congress enacted a measure—the Pressler Amendment—banning military assistance to nations developing nuclear weapons. The Justice Department managed to eke out $326 million from the Judgment Fund to maintain relations with an important international ally—along with other funds from the Treasury and Defense departments.It is, in short, nothing new for the settlement authority to be bent to ends other than resolving a specific legal dispute. Such distortions, even if strictly within the law’s letter and morally defensible, raise awkward questions about the kind of discretion the attorney general yields. No less important, these examples undermine any sense that the Trump administration’s misuse of the settlement power comes from thin air.Legal Challenges to Misuse of the Settlement PowerOne reason the Judgment Fund has proved an attractive instrument of policymaking is that it is difficult for others to challenge a settlement unlocking federal funds even when the agreement lacks a firm factual tie to the underlying litigation. Simply put, there is no plausible plaintiff at the moment who has a right to sue.In general, only parties to a lawsuit can file an appeal challenging the terms of a court-approved settlement. It is difficult to see why a probable beneficiary of the AWF would challenge its terms. While two D.C. police officers have already filed suit, their suit will likely be dismissed on “standing” grounds because they do not have a relevant legal interest in the matter. Perhaps someone suing the attorney general can allege that they have been victimized by the government, and then denied compensation—think of a suit by Maureen Comey or her father, for example. (Before the Senate committee, Blanche suggested that “anybody” who has been the victim of “weaponization” could apply to the AWF for relief, so they are at least notionally eligible.) But it would require some fancy footwork in court to turn this demand for money into a challenge to the very legal basis of the settlement (perhaps involving a district court’s appointment of an amicus curiae to brief the question of whether any relief is legally permissible).What about the branch of government whose power over the flow of federal money is being diluted? The comptroller general is a congressional office with power to sue when the executive withholds or impounds money. But the office lacks any power to go to court when an appropriations statute is misused. Members of Congress who object to the settlement in their official capacities also face considerable resistance from judges. Courts have allowed one house to sue as “a corporate body” when it seeks “to preserve its power of the purse and to maintain constitutional equilibrium between the Executive and the Legislature.” A committee can also bring suit, for example, arguing that the AWF is not authorized by the Judgment Act, and so constitutes a dilution of Congress’s power over appropriations.It’s hard to imagine that the presently Republican-controlled House or Senate would bring suit against the White House of Justice Department. (Whether their difficulty in proceeding with other legislative tasks in light of the controversy leads to an effort to disappropriate the AWF is another matter). Especially after recent Republican primaries, the cost of crossing the president has rarely been more plain. And even if the November election brings about a Democrat-controlled House, there is nothing to stop the AWF from being spent before any bill to regulate the AWF is even circulated on the Hill.None of this is to suggest the AWF is even remotely lawful. To begin with, the statute commands that there be an actual “compromise settlement” before the Judgment Fund can be used. No actual settlement, no lawful payouts in other words. If there is no real prospect of any adverse court ruling—as is arguably the case here and in the Japanese Latin Americans case—then is the resulting agreement a “settlement”? The statute contains no specific definition. Yet it is surely impossible to “settle” a dispute if no actual dispute exists and there is no realistic prospect of the government losing in court. What follows in these cases might be called a gift or a boondoggle. It is not a settlement in the ordinary meaning of the word. If that’s true, then any payments from the AWF violate a federal statute called the Anti-Deficiency Act, which makes it a criminal offense for an official to spend government money without an appropriation. To the extent that the fund forecloses other IRS investigations, it runs afoul of a different criminal prohibition that covers any such attempted interference. The fact that Pam Bondi, while attorney general, issued a policy limiting third-party payments only underscores the ultra vires quality of the proposed AWF payouts.There is also a constitutional argument that the AWF cannot stand. In its recent tariff decision, the Supreme Court’s majority underscored a long line of judicial authority holding that the powers of the purse are Congress’s alone. That decision concerned Congress’s control over the power to tax. Leaning on a principle called the major questions doctrine, the Court said it was reluctant “to read into ambiguous statutory text extraordinary delegations of Congress’s powers.” Hence, it rejected the government’s position that the emergency powers statute called the International Emergency Economic Powers Act should be read expansively to include a secret, unwritten taxing power.What is true of the power to tax must also be true of the other power of the purse. In 1877, the Supreme Court said that officials “cannot touch moneys in the treasuries of the United States, except expressly authorized by Congress.” While the Judgment Act authorizes “settlements,” it would be an extraordinary inflation of the statute’s plain text to extend the meaning of that term so that it included gifts and boondoggles. Under the major questions doctrine, such loose and wild extrapolations from the words of a federal law are no longer available. This concern has particular force here where the attorney general is taking advantage of an unanticipated and accidental consequence of a series of statutory enactments, as opposed to pushing a concededly broad delegation to its logical limits. Hence, the AWF, like the “Liberation Day” tariffs, is an abuse of statutory authority.Or at least so the argument would go—if anyone could establish standing to get through the courthouse door.Toward a Better Judgment FundEven if there is no immediate judicial remedy for the troubling qualities of the AWF, there are other pathways to draw out potential legal problems. Consider one immediate step, and two long-term measures, to address the general problem of abusive settlements.Most immediately, a federal statute called the McDade Act subjects every government attorney to “State laws and rules” of ethics applicable in the relevant state. Justice Department lawyers owe this duty to their client, the United States. Attorneys negotiating away $1.776 billion of their client’s funds in the absence of a good reason to do so—say, because their elected supervisor wishes to advance a partisan goal—violates these ethical rules. Tellingly, the Justice Department has recently moved to try to limit its attorneys’ exposure to such ethics supervision. For the time being, however, government lawyers have an unswerving and enforceable ethical obligation of loyalty to the nation—and not to the president’s partisan whims.Then there are the steps Congress might, under very different political circumstances, take. Consider a pair of options here. First, and most obviously, Congress might amend the Judgment Fund to alleviate the risk of improper use of that authority. It could, for example, require that the fund cover only settlements that have been approved by a federal judge. (Right now, the act requires a certification from the treasury secretary—but this is done with a very light touch.)A judicial check alone would be inadequate to prevent sympathetic yet questionable settlements from being funded—the Japanese Latin American settlement, for example, was approved in court. Rather, a law should provide that the Judgment Fund may not pay out unless a judge has confirmed, on the record, that a settlement is reasonable, tailored to the litigation in hand, and negotiated in good faithSecond, Congress could expand the comptroller general’s authority to sue beyond cases where the executive impounds funds to include misuse of funds. That office might be given a mandate to seek stop orders against uses of the settlement authority absent reasoned, good-faith justifications based on the underlying litigation.Wither the Judgment Act?The AWF has provoked sharp criticism because it seems a nakedly partisan money grab shorn of even the pretense of law. The legal backdrop behind it, however, is more complex than that. The AWF does indeed raise serious ethical, legal, and constitutional questions—most of which are not wholly distinctive to the Trump administration, even if the latter has found a new way to twist the knife further. Perhaps this makes reform easier rather than harder: After all, if there is a sense that a White House of whatever stripe can misuse the settlement power, then people of good faith on both sides of the aisle may be moved to do better.