The Wilkie D. Ferguson Jr. U.S. Courthouse in Miami, Florida, where a judge for the U.S. District Court for the Southern District of Florida on May 18 dismissed Trump’s personal lawsuit against Trump’s own government. Now a group of retired federal judges is asking the court to reinstate the dismissed lawsuit, describing it as “fraudulent.” (Photo by Joe Raedle/Getty Images)
ON WEDNESDAY, A BIPARTISAN GROUP of thirty-four retired federal judges jointly filed an unprecedented motion with the Florida federal court that last week reluctantly agreed to dismiss the lawsuit filed by Donald Trump, his sons, and the Trump Organization against the government headed by Trump. The lawsuit had sought $10 billion in damages over the alleged sharing of tax information by a contractor who worked for the IRS from 2018 to 2020. The new motion from the retired judges is astonishing. Calling Trump’s actions a “fraudulent scheme,” the former judges want the court to un-dismiss the “collusive lawsuit,” reinstating it in order for it to be resolved differently by the court—so that the rule of law can stop hemorrhaging.
Trump and company had terminated the lawsuit after the judge pointed out the glaring conflict-of-interest problems (Trump was on both sides of the lawsuit as both the plaintiff the defendant/president). The underlying claim was also stale, meaning it was outside the statute of limitations and therefore worthless.
Trump’s self-dismissal of his family’s bogus lawsuit against his own administration is what blossomed into his $1.776 billion pillaging of the federal Judgment Fund to create a separately controlled slush fund that would be used to pay people affected by a “weaponized” Department of Justice, which ostensibly includes the nearly 1,600 people convicted of crimes, including violent ones, in connection with January 6th. Again, the pretext for the creation of this slush fund was the Florida lawsuit, which the $1.776 billion fund purports to “settle.”
In the judge’s May 18 order dismissing the suit, she noted that it “does not reference any settlement.” Thus, her retired colleagues now write, “the Court was deceived.”
According to the judges, “that ‘settlement’ commandeers the contrived sum of $1.776 billion from the United States Treasury, to be handed out to recipients chosen by a commission effectively controlled by the President.” The former judges go on to reference Trump’s subsequent settlement “addendum” of self-immunity for himself, his sons, and his business for any “audits of Plaintiffs’ tax returns and all other claims the United States might have against Plaintiffs—extraordinary benefits for which no consideration was provided to the government.” (Note that this means that there is no binding contract should a future IRS decide to hold the Trump family to its tax obligations.)
The former judges go on to make clear that “the parties to this case are using this lawsuit as the legal justification for these actions.” Translation? It is entirely pretextual. Wrote the judges: “this ‘settlement’ is a product of collusion and is itself a fraud on the Court.”
Take that in. Federal judges are accusing Trump of committing a fraud on the federal courts. (If only their colleagues on the Supreme Court cared.)
Under Rule 60 of the Federal Rules of Civil Procedure, federal courts can correct errors in final judgments like the one dismissing Trump’s underlying lawsuit. But this kind of relief is exceedingly rare. In this case, the retired judges urge their colleague to “set aside” her dismissal order and “commence an inquiry into whether the Court was deceived, including with respect to the existence of an underlying case or controversy” (read: Trump unconstitutionally sued himself) and “any purported arms-length negotiations undertaken to resolve it” (read: there were no long arms between the parties because the fix was in from the beginning).
Trump’s lawyers will predictably respond that these former judges have no standing to file this motion, meaning they have no legal dog in the fight. Anticipating that argument, the judges argue that fraud is a different beast. Rule 60, they note, allows non-parties to a lawsuit to “bring a motion under . . . based on fraud on the court.” The rule “by its own terms does not limit the court’s power to set aside a judgment induced by fraud.” They want the Article III branch of government to have an “opportunity,” at least, “to determine whether this was a real case or controversy in the first place,” or whether the judge was hamstrung “to reward and immunize such collusion from judicial scrutiny.”
THE FORMER JUDGES’ MOTION is an astonishing act of patriotism. Trump has bent the rule of law beyond recognition, fashioning creative crimes that no court has had occasion to scrutinize—because nobody dared go there. For the most part, the public and the media have normalized his behavior, finding nothing directly on point to refute it. As Trump’s own legal strategy has shown, that’s not how the law works. Creative crimes call for creative lawyering. In this case, that call comes from a cadre of individuals who took an oath to uphold the Constitution and still cling valiantly to fidelity to that oath—even in retirement, knowing they could face retaliation from the very government for which they demand accountability.
The rest of us onlookers should take note. Democracy needs heroes to survive. Bravo.
