A federal judge on Thursday said a lawsuit challenging the Department of Justice‘s creation of a $1.8 billion “anti-weaponization” fund will proceed, citing the DOJ’s refusal to confirm in writing to her that the fund is dead, as the department has verbally said it is.

Judge Leonie Brinkema, in an order in U.S. District Court in Alexandria, Virginia, said that if the DOJ had given her a “short, written declaration under the penalty of perjury” that the fund is actually dead, that would have been enough to dismiss the suit as moot.

Brinkema said that acting Attorney General Todd Blanche’s refusal to rescind his May 18 memo that set up the structure of the fund, as well as his and President Donald Trump‘s continued interest in compensating purported victims of DOJ overreach, “all support this conclusion” that the lawsuit is not moot.

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Blanche testified to a House committee on June 2 that the fund is not going forward after sharp criticism of it by Republican and Democratic lawmakers.

DOJ lawyers have pointed to that statement in arguing to Brinkema and another federal judge that it is sufficient to dismiss suits challenging the fund.

But Brinkema, in her order Thursday, wrote, “That the defendants have refused to accord a genuine degree of trustworthiness to their representations about the Fund not going forward is particularly concerning because of the President’s consistent support for the Fund and Acting Attorney General Blanche’s acknowledgement that the Fund remains ‘important.’ “

“Although Acting Attorney General Blanche reiterated several times during his testimony
that the Fund was not going forward, when asked whether he would ‘issue a new memo in writing rescinding that May 18 memo,’ he replied, ‘I’m not committing to putting anything in writing. And I said it over and over again,’ ” Brinkema noted.

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