The “Anti-Weaponization Fund” is Nothing New

One side set their hair on fire. The other side fled town. Both forgot they wrote the law.

*****Fair warning: this one isn’t about your health (well, it’s about the health of the Republic, so perhaps that counts…). Jason and I worked together in the U.S. Senate, and what happened last week was too unhinged to leave unremarked. More health and health policy next week - PROMISE! - Katy*****

Last week’s collective freakout over the recently announced Anti-Weaponization Fund illustrates how divorced from reality partisan politics has become in the DC bubble.

As professionals who spent most of our careers advising legislators and leading oversight investigations in the U.S. Senate, it was bizarre and perplexing to watch this unhinged, uninformed bipartisan hysteria drive GOP leadership to send everyone home rather than quell the Republican bed-wetting and beat back the Democrat nonsense.

This is the biggest fracas over nothing that we’ve seen in a long time, and that’s saying something. If you’re interested in understanding what actually happened, here’s an explainer.

First, some context Congress would rather you forget

When it comes to enforcing immigration law, Congress has refused to fund certain segments of the federal government (ICE and Border Patrol). Those agencies have thus been living off a surplus from last year’s One Big Beautiful Bill, affectionately called the Big Beauty, rather than their normal annual appropriations.

When it comes to funding the Justice Department’s ability to settle any legal claim for any amount of money, Congress long ago put that on autopilot, using what’s called a “permanent, indefinite appropriation”- in other words, an unending supply of blank checks. It started like most government programs do, as something a little less crazy.

The Judgment Fund, as originally designed in 1956, was meant to allow the Department of Justice (DOJ) to pay damages of less than $100,000 when ordered by a court - without having to seek budget authority from Congress each time. So, at first, it was an unending supply of blank checks – but only up to $100,000 each. Makes sense, right? Why require an act of Congress every time a court orders the government to pay damages to a citizen it has wronged?

But in 1961, Congress amended the law to let DOJ use the Judgment Fund for more than just paying judgments. It granted authority to also pay for settlement agreements in pending, or even potential legal cases. The $100,000 cap still applied, though. It didn’t get really bonkers until 1977, when Congress eliminated the cap altogether – unlimited bonanza!

Administrations of both parties have tapped the Judgment Fund routinely since then, mostly for legitimate purposes to avoid or cut short costly litigation and remedy government wrongdoing (there’s been plenty to remedy).

The Fund was the logical necessity of a regulatory state run amok - extending its tentacles further into our daily lives every year, with the brute force, incompetence, and injustice that too often accompanies government action. Naturally, there would be citizen victims - those whose lives, livelihoods, and reputations were damaged by government malfeasance. When they understandably sought redress by suing the federal government, of course it’s DOJ serving as the government’s lawyers. As such, DOJ had to decide whether to settle the case by paying damages or go to court, where the government could lose, or be subject to, shall we say, an awkward discovery process.

However necessary the authority to settle cases may be, without any guardrails or upper limits other than the “good judgment” of government bureaucrats pressured by politically-appointed leadership, it will also naturally become subject to abuse and controversy without oversight.

Enter: The 1776 Fund™

Fast-forward to last week. The Senate got its knickers in a twist and fled town over an “unprecedented slush fund” - supposedly created by settling the case President Trump filed against the IRS for illegally leaking his tax returns along with the confidential returns of thousands of other citizens’ to ProPublica and The New York Times.

Unprecedented, they said - except it was Congress itself that created the mother of all slush funds.

Through the Judgment Fund (and the removal of the cap), Congress is to blame for giving DOJ unlimited spending authority in the first place - long before anyone had ever heard of the Trump-IRS settlement.

On the surface, the terms of the settlement require a formal apology and authorize the creation of an “Anti-Weaponization Fund” at DOJ. No dollar amount is specified in the agreement, but DOJ later announced it was carving out $1.776 billion (get it?) from the Judgment Fund to pay claims of damages from the abuse of government power to target political enemies through lawfare and weaponization. The 1776 Fund™ does have a better ring to it than “Anti-Weaponization,” so that’s what we’ll call it.

But don’t be fooled, this is all smoke and mirrors. The Judgment Fund itself has no cap. It’s a permanent appropriation - meaning it’s automatically funded, no annual Congressional funding vote required. So this isn’t some brand-new “slush fund.” It’s simply DOJ using the already-unlimited blank check authority Congress surrendered half a century ago. It’s the same unlimited money with a different label on part of it.

In other words, this is nothing more than a marketing tactic.

The 1776 Fund™ is just a public invitation for victims of political weaponization to sue (or threaten to sue) and settle with the Federal government. The announcement was nothing more than a DOJ press release.

To punctuate the earlier point: DOJ already had all the statutory authority it needed to remedy what the settlement calls “misuse of government power for improper political, personal, or ideological reasons” without carving out a special sub-account in the Judgment Fund. And if there were ever a misuse of government power for ideological reasons, illegally stealing and leaking thousands of Americans’ tax returns in an effort to embarrass the most prominent of those Americans, Donald Trump, certainly qualifies.

The Biden DOJ let the supposed lone criminal leaker, Charles Littlejohn, off with a slap on the wrist, allowing him to plead guilty to just a single count of unauthorized disclosure of tax returns, even though he admitted to stealing and leaking thousands of them. Isn’t that convenient? No messy trial that might risk exposure of more senior government bureaucratic negligence or complicity. And no remedy for the victims.

Whatever damages you think might be appropriate in this or similar cases, nearly 50 years before the Trump-IRS “settlement,” Congress had already removed monetary limits on DOJ’s settlement authority. The $1.776 billion number makes for cute marketing, but wasn’t actually specified in the settlement agreement itself and, of course, DOJ could have carved out any amount imaginable from the literally infinite pot of money Congress authorized.

The only brake on the process under current law is that settlement payouts from the Fund must only be for controversies that could have been litigated and could have resulted in a payable judgment. Since The 1776 Fund™ is simply a logo slapped on a portion of the Judgment Fund, that means it is also subject to these minimal requirements needed to tap the Judgment Fund - it’s not like DOJ can just start handing out checks like Oprah handing out cars to her audience.

Nevertheless, this is far from the first time that use of the Judgment Fund has seemed dubious to outside observers, though the real innovators here were Presidents Obama and Biden.

For example, in 2010 the DOJ Civil Rights Division tapped the Judgment Fund for $680 million to settle a single class-action discrimination lawsuit broadly alleging bias in farm loan programs from 1981–1999. The Obama administration set aside that pot of money to compensate victims, but when no more victims could be found, it still had more than $300 million to play with. So, rather than returning the money to the Treasury, it sent the leftover funds to politically aligned nonprofits that had filed no claims. Critics said the total funds far exceeded the real “litigation value” of any potential claims, but were distributed anyway.

Also brought to you by The Judgment Fund, Peter Strzok ($1.2 million), Lisa Page ($800,000), and Andrew McCabe ($700,000+), 3 senior FBI officials publicly exposed for chicanery that included leaking to the press and trying to impact the 2016 election. They later filed claims alleging violation of their privacy and wrongful termination, which the Biden DOJ settled and paid.

So, nothing about the current controversy is new or unprecedented. Unfortunately, neither side has enough incentive, self-awareness, or understanding to tell you the truth: this whole brouhaha is a nothing-burger.

Democrats howl that The 1776 Fund™ means there is a massive new pile of your money that the Trump administration has stolen through a corrupt, illegal and unconstitutional bargain in order to reward violent January 6^th insurgents - the game of “Demagogue It” that regular readers will recognize.

Because the legacy media can still amplify that message often and loudly, some weak-kneed or shockingly uninformed GOP Senators may even believe it’s true. And, no doubt some hard core MAGA-faithful will want to brag that it’s a brilliant 4-D chess move Trump invented to own the libs so hard you’ll be tired of winning.

It’s neither.

Far from a new or unique form of cronyism-by-settlement, it’s just DOJ announcing an intent to keep using those blank checks Congress handed out to settle whatever claims it wants to pay. According to the announcement, the Acting Attorney General will delegate this pre-existing authority to five other people who will sort through the merits of each case. But that delegation could have occurred before the Trump-IRS “settlement” and relies on zero new authority from that agreement.

One of us (Foster) has direct experience with DOJ’s statutory authority to pay damages to remedy political weaponization, having founded a nonprofit representing whistleblower clients who settled claims during both the Biden and Trump administrations. That organization, Empower Oversight, has negotiated settlements for clients, including non-political career government employees with personal beliefs across the political spectrum - including Democrats, Republicans and Independents. These clients were targeted for their beliefs or for objecting to the targeting of others. Most of their ordeals began after they sought religious exemptions from the COVID-19 vaccine mandate or after they made legally protected whistleblower disclosures about politics improperly affecting law enforcement decisions.

Even though these settlements occurred quite publicly between June 2024 and August 2025, House Judiciary Democrats waited until just before The 1776 Fund™ announcement to suddenly “launch an investigation” into rumors about it, lying about Empower Oversight’s clients as well as complaining about other settlements entered before the announcement, including with former National Security Advisor Michael Flynn and former Trump campaign advisor Carter Page.

Ironically, that illustrates our point.

Settlements already can and do happen routinely with the blank checks Congress handed over 50 years ago. The 1776 Fund™ doesn’t change that. Controversial settlements have occurred before and will continue to occur under administrations of both parties unless and until Congress amends its permanent and indefinite appropriation to the Judgment Fund to restore some limits on how it can be used.

Which brings us back to what happened last week

Instead of looking in the mirror and taking responsibility for what it has done, Congress freaked out and the Senate left town - another episode in the Senate’s ongoing insistence on doing nothing. By “insistence,” we mean an obsessive, compulsive, pathological, and scandalous commitment to doing nothing.

For those of you fortunate enough to live outside the Beltway and its psychosis, let’s bring you up to speed as to where things stand procedurally.

Congress was on track to appropriate funding for ICE and CBP, as well as some Secret Service security beef-ups. (It’s not like anyone has tried to kill the president, right?) Also included were some DOJ-related immigration court and counterterrorism efforts - all as part of a “skinny” reconciliation package. Regular readers will recall previous posts complaining that a “skinny” bill was a grotesque waste of an opportunity to address the affordability crisis prioritized by voters, such as with health care reform or other issues like housing and energy costs.

Reconciliation is a type of bill, designed to be part of the budget process, that allows for certain fiscal measures to be moved in the Senate under privilege, with only 51 votes rather than the usual process that requires 60 votes to end debate and move to final vote (aka the “filibuster”). The majority party of either stripe will frequently use reconciliation to get through legislation that doesn’t have bipartisan support, such as Obamacare, or the “Big Beauty.”

But of course, Congress is so dysfunctional these days that even their most basic job - funding the various departments of the executive branch - has turned into a hyper-partisan affair. The shutdown showdown earlier this year was eventually overcome (well into the fiscal year to which the funding was supposed to apply, sigh), except for one unresolved dispute: ICE and CBP.

Democrats have refused to fund these agencies and pay those federal workers, in order to spite the president over his deployment of ICE and Border Patrol agents to enforce the law. In case you’ve forgotten Schoolhouse Rock, those laws are passed by Congress.

In any case, now that we are already nine months into the fiscal year in question, the Congress finally had a plan to fund the agencies. The reconciliation bill was on track for a vote in the Senate, imminently. And then the DOJ made its seemingly unrelated announcement about the Trump-IRS “settlement” and The 1776 Fund™.

Cue the Senate’s nuclear meltdown

If you read the legacy press, you’ll hear melodramatic accounts of Republican freakout in closed session with Acting Attorney General Todd Blanche, summoned to explain this crime against humanity.

Apparently, Republican Senators are so aggrieved about this policy that Majority Leader Thune has suspended consideration of the reconciliation bill funding ICE and CBP and sent his colleagues home for the week.

What, you might ask, does The 1776 Fund™, whatever its merits, have to do with paying the salaries of ICE agents and CBP officers who risk their lives to enforce the laws passed by Congress?

Nothing. Sort of.

We say “sort of” because Democrats are using the opportunity of the reconciliation bill as a moving vehicle to amend it to exclude anyone with a claim related to January 6th from eligibility for any settlements. Some weak-kneed Republicans could help the Democrats to derail the entire funding bill over this political sideshow. This is the vote that some Republicans are so afraid of that they fled the city just to avoid it.

Why are they so afraid?

The political dilemma is supposedly that Republicans who vote no would be painted as supportive of “violent J6 insurrectionists”- not a good look in some swingier states. Republicans who vote yes would be bucking the president, and could be painted as weak on fighting the Democrats’ lawfare - politically risky in redder states, where voters were rightly (in our view) alarmed by the Biden administration’s unprecedented use of DOJ to persecute Biden’s political enemies while protecting his family and political allies.

On the one hand, it is understandable that Senators might be annoyed at the White House for putting them in that position by announcing The 1776 Fund™ just prior to the vote.

On the other hand, life is “nasty, brutish, and short.” We all have to pay taxes (except Hunter Biden, apparently), and most Americans expect their Senators to take a tough vote once in a while, especially if it’s necessary to keep paying those in law enforcement who risk everything to keep us safe. On this one, you can count us in this latter camp.

But that’s actually not why this whole kerfuffle is legislative and political malpractice.

We are, of course, cognizant of the stereotype of crusty Senate veterans sneering down our noses at the “kids today” making a mockery of the very important work we once loved. But last week, we asked each other, “wait, are we the only ones who see the obvious?”

As we’ve explained, the 1776 Fund™ is just a White House branding exercise on a power Congress handed over decades ago.

So, why is Congress shocked? The Judgment Fund is their program - their decision, supported by all of them for decades. And why are some GOP Senators so afraid of the Democrats’ and their media allies’ dishonest framing that they ran away rather than stand and fight back with facts?

Aggrieved Senators would argue (and ARE arguing) that DOJ didn’t have to wave the blood-red J6 flag in front of Democrats right before the reconciliation bill was up for a vote, taunting them into filing amendments that would prohibit their J6 boogeymen from getting access to the Judgment Fund through the newly announced carve-out fund.

But the talking points and strategies to beat back such an amendment are not that hard.

No matter your views on J6, certain core, neutral principles remain the same. The Judgment Fund was established precisely to compensate people who were harmed by government overreach. Someone has to decide whether to litigate or settle each individual claim on the merits, and Congress cannot do that. That is an Executive Branch function. Congress can, however, write into law basic guardrails to govern the process, and maybe it should. But is a budget reconciliation bill the proper way to do that? Or should there be committee hearings, study, and deliberation on exactly how to write thoughtful rules that place reasonable limits on how DOJ exercises this authority?

This is precisely the sort of talking point that should resonate with the Susan Collinses and the Thom Tillises of the world and which they could adopt in this case, to justify opposing a Democrat amendment aimed at killing what’s really an immigration spending bill.

The Byrd rule in the Senate reconciliation process requires amendments to be primarily fiscal in effect rather than policy-oriented. Serious reform of the Judgment Fund might be a good idea, but that’s definitively a policy-oriented legislative task, not just a funding measure. But if a Democrat amendment miraculously survived the Byrd rule (or the 60-vote point of order to waive such a rule), then two can play this game.

Republicans could force Democrats to vote against some of their own sacred cows.

This happens all the time as a tactic to get the original amendment withdrawn. GOP Senators could file a separate amendment similar to the Democrat one being contemplated to prohibit certain people from receiving settlement payments.

For example, GOP amendments could describe categories designed to block settlements for a long parade of partisans who might line-up for payouts from a future Democrat Attorney General - including such supposed “victims” as Hunter Biden, James Comey, Dr. Tony Fauci and his deputy David Morens, John Brennan, John Kerry (remember those retaliatory Logan Act violations?), and Federal Reserve Governor (and alleged mortgage fraudster) Lisa Cook.

Categories could include foreign pro-Hamas activists targeting Jewish students, officials in sanctuary cities who defy federal law, and activists who obstructed, violently resisted, or threatened ICE agents conducting lawful enforcement operations.

Any number of amendments could be drafted to illustrate the folly of placing politically targeted limits on the government’s ability to settle legal claims. We’re old enough to remember when, instead of crying and refusing to take painful votes, some in the GOP Senate (including Senate legends we worked for like Tom Coburn and Chuck Grassley) would fight back.

You want to politicize the Judgment Fund? Game on.

Let’s show you how ugly that could get. Then maybe cooler heads will prevail, and we can talk later about serious Judgment Fund reform that reasonable people on both sides could support, such as monetary caps and enhanced oversight.

In other words, there is no cause for hysterics, shutting down the Senate floor, burning down the budget process, or blocking funding for immigration enforcement and security beef-ups over this big fat nothing-burger.

Memo to the Senate: stop the madness and get back to work.

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