The Anti-Weaponization Fund Turns a Real Grievance into a Dangerous Precedent
The federal government has a disappointing record of weaponizing its authority, and the public has been right to demand accountability. In the lead-up to the 2012 election, the Internal Revenue Service (IRS) inappropriately targeted conservative political groups. In 2023, the Federal Bureau of Investigation (FBI) categorized certain Catholic Americans as potential domestic terrorists. COVID-era jawboning showed how government pressure can turn private platforms into instruments of state-preferred speech control. And in 2022, the FBI secretly subpoenaed communication records from Republican members of Congress.
Each episode points to the same danger: Federal power can be used against political opponents, disfavored speakers, religious communities, or private institutions pressured to carry out the government’s bidding. But accountability for one abuse of power does not justify another.
The Department of Justice (DOJ)’s new Anti-Weaponization Fund is the latest instance of executive overreach, and it sets a particularly troubling precedent. The DOJ recently announced the fund as part of a settlement in President Donald J. Trump v. Internal Revenue Service, a case arising from the leak of Trump’s tax returns. Under the settlement, Trump, his sons, and the Trump Organization agreed to dismiss their lawsuit and withdraw their claims in exchange for a formal apology with no monetary damages. Instead, monetary relief goes into a new executive-administered fund for third parties who claim to have suffered from government “weaponization and lawfare.”
The money—$1.776 billion—will come from the Judgment Fund, an account designed to pay out settlements to individual claimants who have been wronged by the government. Congress created this fund in 1956 to solve a practical problem: For much of American history, Congress had to approve monetary damages and settlement payments each time the federal government lost a case or agreed to settle a legally valid claim. The Judgment Fund streamlines that process, serving as a “permanent, indefinite appropriation” to satisfy “judgments, awards, and compromise settlements” against the United States.
But settlement authority does not equal program authority. A settlement that resolves a plaintiff’s personal claim is one thing; a settlement that creates a new executive-administered payout process for nonparties is something else. If the DOJ can tap into the Judgment Fund to create a compensation program for people who were not parties to Trump v. IRS, then the Judgment Fund becomes an executive-controlled vehicle for making grants without specific Congressional authorization—thereby undermining Congress’s “power of the purse.”
In appropriation terms, this is the “unauthorized grant” problem: Settlement authority can become a way for the executive branch to compensate politically sympathetic claimants without first persuading Congress that their claims warrant public tax dollars.
Unfortunately, this concept is not new. When the Obama DOJ used bank settlements to channel money to third-party organizations, conservative legal scholars objected, pointing out that settlement authority was being used to do what appropriations law is supposed to do: decide who receives federal funds, for what purpose, and under whose supervision. The Anti-Weaponization Fund presents the same structural danger in a different form—instead of directing private defendants to pay favored third parties, the DOJ is using taxpayer dollars from the Judgment Fund to stand up a third-party compensation process.
The DOJ points to Keepseagle v. Vilsack as precedent, but the comparison only underscores the problem. Keepseagle involved a lawsuit with a defined class, claimant requirements, a court-approved settlement, and judicial oversight. Even so, the settlement became an example of how executive settlement authority can stretch far beyond its proper limits.
According to the DOJ, the fund will report quarterly to the attorney general and may be audited at the attorney general’s direction. But executive branch oversight of an executive-created fund administered by executive-appointed officials is a classic example of the fox guarding the henhouse—not a substitute for congressional authorization or oversight.
While self-serving executive overreach is not new, the Anti-Weaponization Fund extends the concept in a troubling direction and sets a precedent Republicans may quickly regret. For example, a future Democratic president could sue the Environmental Protection Agency, settle, and create a multibillion- dollar fund for activists claiming environmental harm. Alternatively, they could transform settlement authority into a backdoor student loan relief program by suing the Department of Education and creating a “Student Debt Justice Fund.”
Critics of the administrative state have long expressed concern when executive agencies commandeer the constitutional roles and powers of the two other coequal branches by creating laws, enforcing them, and adjudicating disputes. Here, the executive branch is doing the same thing while also co-opting the legislature’s power of the purse. It has identified a category of political wrongs, created a process to judge them, selected the officials who will administer the process, and claimed access to $1.776 billion without Congress affirmatively authorizing the compensation program. That is not anti-weaponization; it is weaponized settlement authority.
The answer to executive abuse is not retaliatory executive abuse. People unconstitutionally targeted by the federal government should bring legally actionable claims, establish injury, and receive compensation through awards authorized by law. Congress can create a compensation program if it believes one is warranted; however, the executive branch cannot settle one man’s lawsuit—even if that man is the president—by creating a fund for third parties and calling it constitutional accountability.
Congress should respond with Judgment Fund reform. At minimum, the DOJ and the Department of the Treasury should be required to publish the settlement agreement, claimant criteria, legal theories, names of decision-makers and recipients, monetary relief and the formulas used to calculate it, and nonmonetary relief. Any settlement that creates a claims process or compensation program for nonparties should trigger advance congressional notification and, for large funds, congressional approval. The Government Accountability Office should also audit Judgment Fund settlements above a congressionally specified threshold.
These reforms should not be partisan. They reflect the limits conservatives wanted when progressive administrations used settlement authority to advance policy outside the normal appropriations process, and the same rule should apply now. A permanent appropriation should not become a standing invitation for the executive branch to create its own programs.
While “lawfare” is a relatively new term, the practice it describes is not. Unfortunately, the federal government has a long and sordid past of weaponizing its authority. That history should make conservatives more committed to constitutional limits, not less. Conservatives should oppose the Anti-Weaponization Fund not because the underlying grievances are imaginary, but because the remedy creates a precedent that would rightly be condemned in other hands. Accountability for weaponized government cannot come through more weaponized government.