This is yet another update on Trump v. IRS. The district court dismissed the suit after the plaintiffs filed a notice exercising their right to do so (with prejudice) before the defendants had made an appearance. The court went out of its way to make it clear that:
Because the Notice does not reference any settlement or include a stipulation of settlement, there is no settlement of record.
Judge Williams obviously did not want anyone to think she was complicit in the administration’s purported $1.8 billion “settlement” that creates the Trump slush anti-weaponization fund and attempts to immunize the plaintiffs (him, family members, and business entities) from some ill-defined set of criminal and civil liability, including potential federal tax liability relating to previously filed tax returns.
Retired judges join fray
I had assumed that this was the end of the story with regard to court proceedings in Judge Williams’ court. Wrong. A group of 35 retired federal judges filed a motion in the case under Rule 60 or as amici seeking the court to set aside the suits’ dismissal and to start an inquiry into the purported settlement, which it characterizes as a fraud on the court because the lawsuit was a pretext to access the DOJ’s judgment fund, etc.1
- Text of the motion
- WaPo’s story
- Kim Wehle in the Bulwark
- List of the judges – most are Senate confirmed retired district and court of appeals judges, but a few are magistrate or bankruptcy judges – appears in the Appendix to the motion. Judges J. Michael Luttig and Nancy Gertner are the first two listed and were the likely organizers. No surprise, since both have been vocal in the media regarding their concerns about the administration’s erosion of norms and the rule of law. Luttig, a Bush appointee, is a well credentialed conservative and Gertner, a Clinton appointee, is a liberal.
The Rule 7.1 certification from the motion has a nice touch of sarcasm:
Counsel for Movants have made reasonable efforts to confer with all parties given the circumstances. In light of the extraordinary circumstances of this case, any conference would be futile. Nevertheless, counsel for Movants still provided the parties with notice, and sought their position, by emailing Plaintiffs’ counsel and the Chief of the Civil Division for the United States Attorney’s Office for the Southern District of Florida shortly before filing this motion on May 27, 2026.
Prediction
I don’t like to make predictions because I’m usually wrong. But this is one case in which I’m not at all sanguine about the prospects of nixing the fund either via this effort or more realistically in Congress.
Court case
The obvious issue is does an ordinary citizen (I assume that is how one must characterize retired federal judges) have legal standing. The likely answer is no IMO. The judges say a court of appeals case, Kem Mfg. Corp. v. Wilder, 817 F.2d 1517 (11th Cir. 1987), stands for the proposition that a nonparty (presumably w/o standing) can bring a Rule 60 motion:
based on fraud on the court, and further recognized that in “extraordinary circumstances,” the non-party need not prove his or her “interests are directly affected by the final judgment[]” to do so. Page 7.
I can’t imagine that holds up in a non-case like this where presumptively the parties are not adversarial and there is no article III case in controversy at all. Standing is a constitutional doctrine to keep the courts from making decisions that are not judicial nature (i.e., resolving live disputes between adverse parties). Waiving it based on a civil rule (that’s what the judges are arguing for), where there is no article III case to start with seems inapposite.
In the alternative, the judges assert correctly IMO that the court itself (sua sponte, as they say) could investigate the alleged fraud and issue an order to void the settlement of the ginned up case, which almost certainly was filed after the SOL had run and did not meet Article III’s adversity requirements. The administration seemed fairly clearly to be (mis)using the court process, given the post-dismissal event of creating the settlement fund. Under those circumstances, the court must have some authority to protect its integrity. In essence, the retired judges want the court to proactively pick a constitutional fight with the executive branch over misuse of the judicial process. I suspect most judges will not want to pick that fight but why not try?
That path to voiding the settlement has some serious huddles to clear, any one of which will disqualify the effort:
- Judge Williams must agree. I have no knowledge of her, but that requires some serious cojones/feistiness. That goes against the typical judicial grain, which is to stay in a narrow lane and only decide what is before you.
- A panel of the 11th circuit court of appeals must also agree. DOJ/Trump would surely appeal.
- If the first two hurdles are cleared, SCOTUS must agree. I can’t imagine finding five justices willing to do so. If the lower courts decline, discretionary review will be denied. If – wonder of wonders – both lower courts agree to take on the executive branch/president, the natural tendency, which is not wrong, is that this is fundamentally Congress’s responsibility to police. There are already some signs of life that Congress may consider the settlement fund a bridge too far, which (even if they are unsuccessful) gives the Court a natural, not-my-job, out. Standing and case-in-controversy rules are all about constraining judicial power, not provoking constitutional disputes, yada, yada. It will be an easy decision for a Court that has been exceedingly deferential to this president.
Congressional action
I would guess there are mildly better prospects that Congress will somehow rein use of the fund in, if not outright prohibit it. But the problem is that use of the judgment fund (or whatever its proper name is) means that Congress must pass a law to do so. That means Trump has to agree to it (unlikely) or they have to pass it over his veto (even more unlikely).
One might assume that the reconciliation bill under consideration in Congress now is must-pass legislation that gives Congress leverage over Trump. I doubt that is true because the only agencies that have not been funded are ICE and CBP, whose operations can continue under the generous appropriations in OBBBA for those functions. Moreover, congressional Republicans have been remarkable supine when it comes to Trump’s demands and ICE and immigration enforcement are particularly susceptible to his demagoguing of the Republican base. I will be surprised if more than superficial limits are placed on the fund, which will give it a congressional imprimatur against other legal challenges. That’s my two cents.
5/29 Update
The probability that the first hurdle will be cleared has increased substantially. Judge Williams issued an order in response to the retired judges’ motion, reopening the case. So, she must be up to the task of taking this on. I’m also sure that Trump was hoping to draw Ailene Cannon when the suit was filed. Thankfully, that didn’t happen.
Excerpts from her order:
A court is empowered to investigate serious misconduct as a collateral issue within the purview of Rule 11 and determine “whether an attorney has abused the judicial process.” * * *
…
Here, the non-party movants advance grievous allegations that Plaintiffs voluntarily dismissed this litigation solely to avoid judicial scrutiny of a lawsuit that “was collusive from the start” and was only filed to provide the imprimatur of legality for an unlawful settlement. They point to the fact that the settlement in question includes a “three-paragraph addendum . . . [that] purports to ‘forever bar[] and preclude[]’ the United States from pursuing claims that could have been [otherwise] asserted against] Plaintiffs,” and highlight the fact that Defendants did not “even try[] to defend against Plaintiffs’ claims” despite their active opposition to nearly identical claims in other litigation. Finally, the non-party movants assert that Plaintiffs’ claims were “clearly untimely” and therefore untenable.
Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs shall file a response to the Motion on or before June 12, 2026, detailing their position on the matters set forth in the Motion, including (1) the charges of collusion and whether the Parties are truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the “victim of a fraud.” [Citations and footnotes omitted.]
Link to NYTimes coverage; WaPo article.
Stay tuned to see what comes of this. I hope that Todd Blanche or some other DOJ political appointee gets grilled in open court on the particulars and how there can be a legitimate settlement here. Conversely, I hope that this is not an excuse for Congressional Republicans to cowardly take a pass – as in “the courts will handle this, so we can (once again) look the other way.”
Note
- See Adam Liptak’s newsletter for interesting background on retired judges filing amicus briefs. ↩︎
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