I can’t overstate the importance of Judge Kathleen Williams’s decision on Friday to reopen Trump’s $10 billion case against the I.R.S. She said she wants to investigate “grievous allegations” that the hasty deal to resolve it was “premised on deception,” and she ordered Trump’s lawyers to tell her by June 12 whether the lawsuit should be formally reopened because “the court was the victim of a fraud.”The “deception” and “fraud” Judge Williams refers to were allegedly carried out by Trump and his Justice Department.This is a big deal. Judge Williams’s decision came in response to court papers filed on Wednesday by a bipartisan group of 35 former federal judges who urged her to revive the case and dig into the details of the agreement to settle it. The judges’ brief is also a big deal. They call it a motion for relief from judgement or order or, alternatively, “leave to appear as amici curiae by thirty-five former federal judges.” I don’t recall a similar instance of 35 former federal judges filing such a motion or amicus (friend of the court) brief. In it, the judges argue that the parties’ — Trump and the Justice Department’s — so-called “settlement” agreement was made to circumvent the court ‘s possible finding that the case presented no actual controversy, since Trump is on both sides of it. This, they conclude, constitutes a fraud on the Court.Let me quote the remarkable brief filed by the 35 former federal judges: “The parties have used this lawsuit—which was never an adversarial proceeding over which the Court even had jurisdiction—as a means to allow a “commission” controlled by the President to dole out $1.776 billion in taxpayer dollars without constitutional or congressional authority to do so, and to confer unlawful private benefits to the President and his family by purportedly prohibiting the United States from prosecuting any and all claims against them. And the parties have plainly tried to shield this conduct from necessary judicial scrutiny by short-circuiting this Court’s inquiry into whether the lawsuit is in fact an actual case or controversy by [seeking to dismiss the case] before they announced the “settlement”—clearly in hopes of preventing the Court from ever completing that inquiry, which, if it comes out against the parties, will undo their collusive “settlement.” ….Accordingly, because “[t]he parties’ ‘collusive’ activity perpetrated a fraud on the judicial machinery itself, by fostering an appearance that the litigation involved adverse parties, when, in fact, it did not,” the Court should void its prior dismissal and reopen the case to assess in due course whether a fraud occurred.”In her order on Friday, Judge Williams said she wanted to investigate the circumstances surrounding Trump’s efforts to settle the lawsuit in a way that benefited him and his allies.She added that a federal court rule requires attorneys to ensure that court filings are “not presented for any improper purpose” and that “a party’s decision to file a frivolous lawsuit for the sole purpose of forcing a settlement may qualify as such an improper purpose.”She also noted that the settlement appeared to run afoul of Department of Justice policies that require any settlements to be “specifically limited to the immediate subject matter of the claim.” Finally, Judge Williams pointed out that a settlement addendum that waives all tax claims the U.S. may currently have against Trump, his two eldest sons, and his businesses and trusts was signed only by Todd Blanche, the acting Attorney General. This could result in questions being asked of Blanche. Ultimately, it could result in his debarment or even imprisonment. Recall that Nixon’s Attorney General, John Mitchell, was convicted of conspiracy, perjury, and obstruction of justice for his role in the Watergate break-in and cover-up. He served 19 months of a two-and-a-half to eight-year sentence in federal prison before being paroled. He was the first Attorney General in United States history to be incarcerated.Let me just say that there are forces in this country — specifically, Judge Kathleen Williams and the bipartisan group of 35 former federal judges — bent on preventing Trump from exercising authoritarian power. In so doing, they’re displaying extraordinary courage and commitment to democracy and the rule of law. They are in effect representing all of us — our system of justice. We owe them a great debt of gratitude. (I’m awarding them this week’s Joseph N. Welsh Award for Courage in the Face of Tyranny.)Robert Reich is a professor at Berkeley and was secretary of labor under Bill Clinton. You can find his writing at https://robertreich.substack.com/.
