Trump’s $230 Million DOJ Shakedown Has One Absurd Twist

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President Donald Trump has profited off his second term to an unprecedented degree^[2], making hundreds of millions of dollars through a variety of financial schemes^[3], kickbacks^[4], and shady business deals^[5] with his allies and acolytes. But he currently stands poised to cut out the middlemen and collect $230 million^[6] directly from his own government. Before returning to the White House, Trump filed^[7] claims insisting that he deserved this taxpayer-funded windfall because he’d been persecuted by various federal investigations, including the Russia probe, the Mar-a-Lago search, and the classified-documents prosecution. On Tuesday, he indicated that the government would hand him the money, while claiming (dubiously^[8]) that he’d donate it “to charity or something.”

On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern talked through Trump’s outrageous demand—and its surprising, ironic implications for many actual victims of his own administration’s legal abuses. A preview of their conversation, below, has been edited for length and clarity.

Dahlia Lithwick: Before we leap into the many layers of gross here, can you explain how it is that Trump thinks he is entitled to have the taxpayers fund this small fortune for him?

Mark Joseph Stern: Trump has filed a claim under the Federal Tort Claims Act, which—in theory—allows victims of certain official misconduct to collect damages from the government. Not directly from the individual who violated their rights, but essentially as a government payout. Trump is arguing that these investigations were, in fact, violations of his rights, specifically under Florida law. He alleges that his rights against “intrusion upon seclusion” and “malicious prosecution” were violated, which is pretty rich. So he is demanding, cumulatively, almost a quarter of a billion dollars in payouts—from his own Justice Department.

The reason he’s able to do so is that under the FTCA, you don’t go straight to court; you have to file an administrative claim first, and the government gets the first crack at either paying it out or saying no. Most of the time, it says no. But right now, the people in charge of deciding whether to pay Trump’s complaint are Deputy Attorney General Todd Blanche, who represented Trump in his hush money trial, and Associate Attorney General Stanley Woodward, who represented Trump’s co-defendant in the classified documents prosecution. So the guys who will decide whether Trump gets this quarter of a billion dollars are the guys who were appointed because of their loyalty to Trump and for their legal defense of him and his co-defendants during some prosecutions that he now argues were blatantly illegal.

It would be kind of funny if it weren’t so appalling. Because if he gets this payout, it’ll be one of the largest in history. And he will have inverted the FTCA not to compensate him for legitimate injuries that the government inflicted, but to enrich himself because his own government thinks he deserves even more cash.

Let’s stick with that for a minute, because the New York Times had a really good piece this week on that topic. The huge majority of people who seek compensation for official misconduct will never, in their lifetimes, see a dime.^[10]

The problem is that the FTCA has a massive escape hatch known as the “discretionary function exception.” The premise is that you can sue a government agent for acting negligently on the job, but you can’t sue a government agent because they were devising, implementing, or following an official policy of the government. So, for instance, if you get hit by a park ranger driving a Jeep negligently, you may be able to collect damages under the FTCA. But you can’t file an FTCA claim against the park police for allowing rangers to drive jeeps there in the first place. That’s because letting jeeps patrol the park is a policy decision, but negligently driving the jeep once it’s in the park is just an operational mistake.

In the real world, this exception means the vast majority of people whose rights are violated by the Trump administration will never see a dime under the FTCA. For instance, a lot of people’s rights have been infringed upon by ICE agents and CBP agents—they’re being stopped and searched illegally, racially profiled, having their houses raided unlawfully. But if they file an FTCA claim, the government is going to say that those agents were following a policy. It might acknowledge they were following the policy imperfectly, but it’ll say: Kristi Noem, the Secretary of Homeland Security, told agents to do this. The President of the United States told them to do this. These agents were just implementing a policy, so these claims fall under the law’s exception.

So we’re in this weird situation where Trump says he deserves a payout under his broad and generous reading of the FTCA. But all the people whose rights Trump is currently violating don’t get a dime under his own government’s view of the law.

You mentioned that the neutral and fair arbiters at the Justice Department who’ll decide Trump’s claim are people who basically carried the ashtrays around following Trump from trial to trial. These are his trial attorneys who are going to be in his pocket. But our friend Jay Willis at Balls and Strikes also flagged that Trump is partly demanding this payout because prosecutors should have foreseen that he would have immunity for “official acts.” In other words, they should have known that Chief Justice John Roberts—who, at least in some scenarios, follows Trump around carrying his ashtrays too—was going to say: Hey, the president is totally immune. Even though, sequentially, time doesn’t actually work that way. I guess he thinks it should have been manifest to the Justice Department that John Roberts also works for him.^[11]

That is one problem with this claim: Trump’s lawyers say that the Biden administration should have been able to predict the future and know that the Supreme Court would make up the concept of near-absolute presidential immunity in Trump v. United States, and therefore refrain from ever investigating or prosecuting Trump. Another problem is that many of the damages that he’s asking for—like in the hundreds of millions—are punitive damages, which are not allowed under the FTCA. There are very narrow exceptions, but nothing Trump alleges fits into them. At this point, it’s almost like he’s testing the Justice Department to see how absurd a theory he can push and push and push, and still convince them to sign off on.

But the weirdest thing about Trump’s theory is that if he’s correct, it would be the dream come true of civil rights lawyers for decades. Because civil rights lawyers have long argued that the FTCA should be read more broadly, and the exception should be read more narrowly—so that when higher-level, policy-driven decisions are carried out in a way that violates people’s rights, those individuals should still be able to bring claims. Trump says that Attorney General Merrick Garland and FBI Director Christopher Wray didn’t just make the decision to raid Mar-a-Lago, seize the classified documents, and prosecute him; they were monitoring operations on the ground, and because of their close involvement and directives, they aren’t shielded by the “discretionary function exception.”

What are the implications if that’s right?

It would mean that almost every person whose rights are violated by ICE and CBP should also be able to collect damages under the FTCA! Because they can say: Well, Kristi Noem may be in D.C. setting these policies, but the policies are encouraging illegal behavior, and the way that agents are carrying them out is illegal in so many ways. So according to Trump’s lawyers, the exception shouldn’t apply!

Now, obviously the Justice Department is not going to apply Trump’s theory to any of these other victims. But if it signs off on Trump’s claim, it should, right? People whose houses were wrongly raided by ICE, who were wrongly detained for days as an American citizen, can tell the government: You broadened out the scope of this law massively. You better do the same for us.

The precedent that Trump is setting here goes completely against the government’s arguments in every other case. And I think litigants should be making that claim in these complaints—and eventually to judges and juries when the government turns them down and they take their cases to court.

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