The Anti-Weaponization Fund and the Rule of Law

As NYCLA’s senior officers we were dismayed last week to learn of the Administration’s establishment of a so-called Anti-Weaponization Fund, which has been referred to accurately as a “slush fund.”  It appears that the fund is intended to be paid, at least in part, to persons who participated in the attempted coup on January 6, 2021, when Congress was meeting to confirm the results of the 2020 presidential election.  Many of the participants in this attempted coup were convicted beyond a reasonable doubt by juries of their peers for violent assaults on federal officers and policemen based on video evidence.

What we find frankly shocking about the creation of this “fund” is that it violates the most basic precepts of the rule of law.  First, the authority to create the “fund” is questionable.  The basis cited for the creation of the “fund” is appropriated monies to pay federal judgments, typically for things like contract claims awarded by the Court of Claims.  There are no such “judgments” in favor of any of the January 6 participants.  The judgments that exist are their criminal convictions.  

Second, and relatedly, there are no standards for who should be awarded monies from the funds, for what conduct. on what standard of proof and based on what procedures.  Each of these is an important element of a system of procedural and substantive law.

Third, the “fund” ignores basic principles of neutrality and objectivity that are also a basic part of any system of laws.  Our judges must be neutral and unbiased in order to be eligible to rule on basic disputes.  When conflicts may exist that could cause their bias to be called into question, they must recuse themselves.  Here, however, the President has acknowledged that he is deeply conflicted in the creation, and presumably later also, the administration of the fund.  He even characterized the creation of the fund as negotiating a settlement with himself.  His Acting Attorney General Todd Blanche is certainly not independent or adverse.  Nor will the five persons to be appointed to administer the fund.  And the one-page document, on the Department of Justice’s website, also entails the settlement of tax claims that the IRS may have against the President and his family.  How can such a conflicted outcome possibly pass muster?

We recognize of course that these January 6 participants were pardoned by the President immediately after his inauguration.  Whether or not those pardons were wise, they were certainly within the President’s pardon power expressly granted to him in the text of the Constitution.  Pardoning these convicted criminals is one thing; it is quite another to enable criminals to be paid for engaging in violent behavior.  We call on Congress to fulfill its institutional role —which is also a basic part of the rule of law under our Constitution — and pass legislation prohibiting the creation of this fund.

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This statement has been issued by the President and President-Elect. It has not been reviewed by NYCLA‘s full Board of Directors and does not necessarily represent its views.