Summary
From the article:
Wait a second. We’re talking about a settlement here. On Earth-One, one side of a settlement cannot unilaterally declare that the settlement will never be carried out. Like, if Alice sues Bob and Bob agrees to pay Alice $1 million and Alice drops the case in exchange, and then Bob announces “actually sorry I’m not going to pay the $1 million,” one would not say, “OK, I guess we can be certain Bob’s not going to pay the $1 million!” Instead you would say “I guess Alice is going to sue Bob for the $1 million, have fun losing in court Bob!”
Yet here, the government takes the position that once the defendants declare the Anti-Weaponization Fund to be dead, it’s dead. The concept of the plaintiffs enforcing the settlement does not cross anyone’s mind. This suggests that this isn’t a “compromise settlement.” But remember that the statutory basis for the Anti-Weaponization Fund was that the government entered into a “compromise settlement,” thus unlocking the Judgment Fund door! If there’s no actual “compromise settlement,” the Anti-Weaponization Fund is illegal.
[...]
The government’s justifications are not persuasive. On the first point, it was reasonable for the district court to insist on sworn declarations from the defendants before dismissing the case as moot.
The way litigation normally works is, if a party wants to convince the court that a particular fact is true, the party submits a declaration saying it’s true. The district court was entitled to apply ordinary procedural rules.
To be sure, when we’re talking about official government actions, usually the government is allowed to submit official government documents. The problem is that there isn’t an official government document rescinding the Anti-Weaponization Fund. The original documents are still up on the DOJ’s website!
The settlement agreement says: “This Settlement Agreement may be modified only with the written agreement of the Parties.” There’s no written agreement of the Parties. Indeed, at the House hearing where the Acting Attorney General made the very comments that, according to the government, mooted the litigation, the Acting Attorney General explicitly refused to put anything in writing: