The Trump administration’s announcement that it had established a large, taxpayer-financed “Anti-Weaponization Fund” was an odd addition to an already-odd news cycle. The pool of $1,776,000,000—1776, get it?—was born out of a settlement between President Donald Trump and the IRS; the chief executive had, in some sense, sued himself after a contractor leaked his tax returns to The New York Times in 2019. Those funds will be used, the Justice Department said, “to hear and redress claims of others who suffered weaponization and lawfare.”
The development has drawn widespread criticism for reasons one might assume: allegations of corruption and self-dealing. But its inception raises larger questions about what processes exist for alleged victims of government misconduct, how hard it is for anyone to get compensation when their constitutional rights are violated, and why that is.
It is not yet clear exactly who will benefit from the Anti-Weaponization Fund. But Vice President J.D. Vance offered a hint this week when he invoked Tina Peters, whom Colorado Governor Jared Polis granted clemency last week. “This is a woman, who, at worst—if you believe everything that the prosecutors said about her—committed misdemeanor trespassing, and somebody threw the book at her,” Vance said at a White House press briefing. “This innocent grandmother was going to spend 10 years in prison, completely disproportionate to any misdemeanor trespassing that I’ve ever seen. Was that fair? No. Is it reasonable for her to get some compensation for the fact that she was treated unfairly? I think the answer is yes.”
Peters was not convicted of “misdemeanor trespassing.” She was convicted of four felonies and three misdemeanors—none of which were trespassing—in connection with an illegal scheme she executed as Mesa County clerk that she hoped would substantiate her allegations that the 2020 election had been stolen. As Reason‘s Jacob Sullum summarized earlier this week, Peters secured “unauthorized access to voting machines…by falsely identifying Gerald Wood, a local I.T. consultant, as a county employee, and allowing Conan Hayes, another promoter of Trump’s stolen-election fantasy, to pose as Wood.” Hayes used Wood’s bogus credentials to copy the voting machine software in May 2021 after Peters disabled security cameras, though she recorded the process with her phone. Images from that footage, one of which featured the county’s passwords, eventually made their way online.
Her nine-year (not 10-year) sentence was indeed severe. Per the judge, it was partially influenced by her beliefs, so her sentence commutation—despite the great deal of outrage it has elicited—is defensible on First Amendment grounds. That’s especially true when considering she will have spent about a year and a half in prison, which still amounts to significant accountability.
Peters was not pardoned, though. She is not “innocent,” as Vance claimed. She was convicted by a jury, and will remain a felon after her release next month. We have an important check on overly harsh prison terms in this country: clemency. It was exercised.
That Peters and others might get taxpayer-funded checks not in spite of committing crimes—but because they committed crimes—is a revealing window into the Anti-Weaponization Fund. That perversity intensifies when you consider that our system all but ensures that people whose constitutional rights were violated by the government face a grueling battle for recourse. Many end up with nothing at all. One of the most vocal opponents to reform there: Donald Trump.
The summer of 2020 saw a wave of support for reforming qualified immunity. Under that legal doctrine, a plaintiff may plausibly allege that a state or local government employee acted illegally and infringed on his rights. But he will still be barred from going before a jury and asking for damages if he cannot show that the misconduct was “clearly established” as unconstitutional in prior case law. It is, in theory, supposed to nuke vacuous claims.
But that is not what happens in practice. It is the reason why a mother could not sue after a deputy sheriff shot her 10-year-old boy while aiming at a nonthreatening dog; or why two men could not sue after law enforcement allegedly stole $225,000 from them during the execution of a search warrant; or why a local citizen journalist could not sue after police contorted an obscure law to arrest her. Without prior court precedents explicitly spelling out that such actions ran afoul of the law—as if officers needed to be put on notice, for instance, that stealing under such circumstances is illegal—the plaintiffs’ cases were extinguished before they could even begin.
The momentum around reform has waned, to put it mildly. But at its climax, during Trump’s first term, his administration described any attempt to modify the doctrine legislatively as a “non-starter.” On the campaign trail for the 2024 election, Trump briefly revived the issue and emphasized that he wanted to “indemnify [police] against any and all liability”—which is already effectively the case. (Even when plaintiffs do overcome qualified immunity, governments pay out damages almost 100 percent of the time.)
Legal inaccuracies notwithstanding, Trump’s position on the issue has been firm and consistent. He has sided with the government, not the little guy, when it comes to questions about what victims of state abuse are entitled to. If Peters is an apt mascot for his Anti-Weaponization Fund, it appears his sympathies do sometimes operate in the reverse, so long as the little guy is the one accused of misconduct, and so long as that misconduct sufficiently flattered him. But a mom whose young son was mistakenly shot by law enforcement remains out of luck.
