DOJ Anti-Weaponization Fund Lacks Safeguards From Past Programs

The Justice Department’s new $1.8 billion “anti-weaponization” fund lacks the rigorous controls that typically guide programs compensating victims out of litigation settlements or congressional mandates, said officials involved in prior efforts.

Acting Attorney General Todd Blanche rolled out the planned fund Monday in a deal to end President Donald Trump’s lawsuit against the Internal Revenue Service while providing few specifics about how it will be structured and what safeguards and oversight might be built into it.

DOJ settlement payouts would traditionally involve significant scrutiny and a direct connection to ongoing or potential litigation, said Arthur Gary, who as former general counsel of DOJ’s Justice Management Division provided legal guidance on numerous fund recipient decisions.

“They’ve apparently just decided to give money away. That’s what this looks like,” Gary said.

Past programs—such as those compensating people harmed by the Sept. 11 attacks, state-sponsored terrorism, or childhood vaccines—were created by acts of Congress, and included rigid protocols and transparency.

In earlier DOJ victim funds, “the money is appropriated by Congress. There are stringent limitations that are built into the law about who is eligible, and how much money they get for the harm that they suffered,” said Rupa Bhattacharyya, legal director of Georgetown Law’s Institute for Constitutional Advocacy and Protection and former special master for DOJ’s September 11th Victim Compensation Fund. “None of that appears in the Blanche memo.”

DOJ on Monday announced the broad contours of the fund, including that the attorney general will select five commissioners—all of whom may be removed by Trump—who’d make eligibility determinations. Blanche, when testifying at a Senate hearing Tuesday, defended the project against criticism by arguing “there’s accountability” built into the fund through quarterly public reports by the commissioners.

To Gary and other former officials, that’s insufficient.

“Where the scrutiny needs to come first is on the front end; not only on the back end,” he said.

Judgment Fund

Blanche’s short memo said DOJ would rely on the Treasury Department’s taxpayer-financed “judgment fund”, which was created by Congress in 1956. DOJ has previously tapped into this permanently available and infinite reserve for unforeseen events, such as catastrophes, but the statute lends the attorney general considerable discretion to determine appropriate uses.

In past judgment fund decisions, the department voluntarily set up internal checks, including multiple layers of legal review from career lawyers and spending experts, several DOJ veterans said.

DOJ spokespeople didn’t immediately respond to a request for comment as to whether the Trump administration will seek that same level of input before distributing payments to people purportedly harmed by partisan law enforcement.

At his previously-scheduled hearing Tuesday before a Senate appropriations panel, Blanche said it will be up to the appointed commissioners to develop standards for which individuals are eligible for payments.

“I very much anticipate that the claims that are awarded—the basis and the amount—will for sure be made public along the way,” Blanche said. He noted, however, that privacy laws may prevent public disclosure of some details.

Kenneth Feinberg, who DOJ selected to administer both the Sept. 11 fund and a later program for those harmed by the 2010 BP Deepwater Horizon oil spill, said the new entity appears quite different from his experiences. Left unstated is who serves on the five-member board and what procedures they’d hopefully set for sake of transparency, such as for an appellate process, he said.

The commissioners would need to “have some experience in processing claims, after airline accidents, crashes,” or other failures, Feinberg said. “You want people who are qualified to objectively evaluate eligibility and determine valuation.”

Also unclear is whether the fund will be subject to any sort of audit or independent oversight. Bhattacharyya said that her team’s knowledge that external reviews, such as from the Government Accountability Office, were coming, ensured a meticulous, responsible claims system at the Sept. 11 fund and several other DOJ victim compensation programs she managed.

“We knew we were responsible for handing out money that belongs to people of the United States, and we needed to do that in good faith,” she added. “There’s no indication of good faith in the memo that Blanche issued. There’s no criteria. There’s no guidelines.”