| Anyone familiar with the American Constitution knows it can be annoyingly vague. That’s why courts do brisk business trying to figure out what it means. |
| But sometimes the Constitution is clear and commanding. For example, it allocates the power to appropriate and spend money to one branch of the government, the Congress. It guarantees freedom of speech and forbids the government from treating people differently because of their political beliefs, affiliations, or their political power. |
| And in a somewhat obscure provision, the Fourteenth Amendment says that “neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States.” Seems clear enough. |
| But you would never know that from the one-two punch the Trump Administration delivered when it unveiled its $1.776 billion Anti-Weaponization Fund and its plan to allow the president, his family, and his businesses to cheat on their taxes with impunity. Both are unconstitutional and immoral. |
| It will be up to the courts to deal with the first of those problems. It will be up to the people and their representatives to hold the line against the administration’s immoral actions. |
| According to the Justice Department, the Anti-Weaponization Fund is designed to “provide a systematic process to hear and redress claims of others who suffered weaponization and lawfare” under the Biden Administration and to deter the government from being “weaponized against any American.” If it wasn’t so sad to see our government turned into a tool of one man’s whim, it would be comic to see the most weaponized government in American history say, “The use of government power to target individuals or entities for improper and unlawful political, personal, or ideological reasons should not be tolerated by any Administration.” |
| And as if that wasn’t enough, as the New York Times notes, “The Justice Department has granted President Trump, his family and businesses immunity from ongoing inquiries into their taxes, a potentially lucrative arrangement that could shield the president from significant financial liability.” |
| It is worth quoting at length from the document signed by Acting Attorney General Todd Blanche as a part of a so-called settlement agreement in return for which the president dropped his frivolous $10 billion suit against the IRS for leaking his tax returns. “The United States,” it says, “RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs from, and is hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, counterclaims, causes of action, appeals, or requests for any relief…that…have been or could have been asserted by Defendants against any of the Plaintiffs….” |
| With its Trumpian use of ALL CAPS, it is as if this statement were written by the president himself. Therein lies both its glaring legal and moral problems. |
| The tax settlement is a fig leaf for what is, in substance, a self-pardon by the president. The Acting AG reports to Trump and has been clear about his desire to do all he can to protect and help the president. |
| What he has done in his directive to the IRS is to do the president’s bidding. It is clemency by proxy. |
| While the chief executive’s clemency power is vast, it does not allow the president to pardon himself, and it doesn’t allow it to be done by subterfuge. |
| More than fifty years ago, during the height of the Watergate scandal, the Justice Department issued an opinion stating in no uncertain terms, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” That maxim can be traced back to ancient Greece and has been an unshakable part of our moral code ever since. |
| To date, no president has tried to pardon himself, though it was actively considered by Richard Nixon and Bill Clinton. In 2018, Trump asserted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself . . . .” |
| But no court has ever ruled on the matter. |
| From time to time, members of Congress have introduced constitutional amendments that would preclude self-pardons. None has passed. |
| Until that happens or a court rules, the Justice Department guidance is good authority. |
| It is strange but not surprising that Trump would go along with the IRS arrangement since, in January of 2025, he went out of his way to take his predecessor to task for “giving pardons to several of his family members as well as political allies.” And he mused, “The funny thing, maybe the sad thing, is he didn’t give himself a pardon.” |
| But as Professor Laurence Tribe, Richard Painter, former ethics lawyer in the George W. Bush White House, and Norm Eisen, former ethics lawyer in the Obama White House, pointed out in 2017, “The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.” |
| They added, “We know of not a single instance of a self-pardon having been recognized as legitimate. Even the pope does not pardon himself.” And even he couldn’t do it by proxy. |
| As to the Anti-Weaponization Fund, its moral and legal defects have been highlighted in a pair of lawsuits filed by individuals and groups who claim they have been harmed by its creation. As one of them noted, “The Fund…violates core constitutional requirements, including the First Amendment, the guarantee of Equal Protection, and the Separation of Powers, and the more obscure, but once again relevant, express constitutional prohibition on paying 'any debt or obligation incurred in aid of insurrection or rebellion against the United States.’” |
| “By its own terms,” the suit continues, “the Anti-Weaponization Fund is available only to claimants who assert that they were targeted by 'Democrat’ administrations, even though the current administration has weaponized the awesome power of the federal government against its perceived political opponents like no other administration before it. Neither the First Amendment nor the Equal Protection guarantee of our Constitution countenance such blatant partiality.” |
| The other suit, brought by two Capitol police officers injured on January 6, says that the Anti-Weaponization Fund violates the separation of powers since it was created without the authorization of Congress. It labels it a “slush fund to finance the insurrectionists and paramilitary groups that commit violence in his name.” |
| The suit pulls no punches. It suggests that “Militias like the Proud Boys will use money from the Fund to arm and equip themselves. The Fund will grant their past acts of violence legal imprimatur. And, most chillingly, the Fund will signal to past and potential future perpetrators of violence…that they need not fear prosecution; to the contrary, they should expect to be rewarded.” |
| Finally, this suit highlights the incompatibility of the Anti-Weaponization Fund and the Fourteenth Amendment’s language about compensation of insurrectionists. “Those rioters,” it explains, “engaged in an act of 'insurrection . . . against the United States’ by attacking the Capitol in an attempt to prevent the lawful certification of a presidential election.” |
| “As a consequence of that conduct, many insurrectionists incurred sizeable debts and other financial obligations—in particular, legal fees incurred defending against criminal charges and, for the many convicted, restitution obligations. DOJ has now committed the United States to paying those debts and obligations.” |
| If the president gets away with pardoning himself and paying insurrectionists, he will make mincemeat of the Constitution. It will be up to the courts to stop that from happening. |
| On May 30, two courts acted. |
| As the New York Times reports, one of them temporarily “prohibited the government from establishing the (Anti-Weaponization) fund….” The other reopened Trump’s original lawsuit seeking $10 billion from the IRS to investigate what it called “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.” |
| We will have to wait for hearings in both courts to see whether they will agree that what the president and his administration are trying to do is blatantly illegal. |
| But, as I argued elsewhere, “in a democracy, deciding whether the creation of the fund (and the IRS exemption) violates the moral maxim that no one can be a judge in his or her own cause ultimately will be up to the people.” If we don’t resist Trump’s latest outrages, there may be little else he will not do to use his power to favor himself. |
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