Federal Tort Claims Act, over which DoJ has total discretion, provides workaround to Trump’s $1.8bn slush fund
Pro-Trump protesters occupy the US Capitol, including the inaugural stage and viewing stands in Washington DC on 6 January 2021. Photograph: Michael Reynolds/EPA
January 6 defendants who assaulted police officers are pursuing legal claims for millions in compensation from the Trump administration using an obscure federal process with minimal oversight, but which offers the Trump administration a way to compensate those responsible for violence even after scrapping its “anti-weaponization fund”.
The defendants are pursuing their claims using the Federal Tort Claims Act (FTCA), which allows individuals wronged by the government to file claims for monetary damages. The justice department has complete and unchecked discretion over whether to settle the claims, giving the Trump administration a powerful vehicle to reward those responsible for violence on January 6. The claims would be paid out from the judgment fund, a perpetual appropriation allowed for by Congress and the same pot of money Trump’s $1.8bn slush fund was going to draw from. All of the defendants seeking compensation received a pardon from Trump.
There was fierce bipartisan pushback to the “anti-weaponization fund” proposed by the administration last month after Trump reached a settlement with the Internal Revenue Service. In particular, members of Congress were concerned that people who harmed law enforcement officers on January 6 might receive compensation. “If you’ve been convicted of assault on a cop … doesn’t seem to me like people who are victims,” Josh Hawley, a Republican senator from Missouri, told NBC News.
While the “anti-weaponization fund” appears to be on ice for now, FTCA claims and lawsuits could provide another avenue for payouts.
“It risks turning the judgment fund into exactly the sort of slush fund that the ‘anti-weaponization’ was going to be,” said Rupa Bhattacharyya, a former director in the civil division’s tort branch at the justice department, who worked on FTCA claims and now is the legal director at the Institute for Constitutional Advocacy and Protection at Georgetown Law.
“If the treasury department is not going to enforce the restrictions on the use of the judgment fund, which is to settle impending or imminent lawsuits where there’s some risk of liability, then there’s no limit on what you can use that judgment fund money for, so long as someone files a bogus claim,” she said.
The justice department agreed to settle FTCA claims filed by Michael Flynn, a former national security adviser, and Carter Page, Trump’s foreign policy adviser, for $1.25m each earlier this year.
Many of the January 6 defendants are represented by Peter Ticktin, a Florida attorney who is a longtime friend of Trump. He said he had filed about 400 FTCA claims on behalf of January 6 defendants and expects to start frequently filing lawsuits now that the six-month waiting period has expired.
There may also be advantages to pursuing compensation through FTCA claims instead of the weaponization fund, said Mark McCloskey, a Missouri attorney who is representing many January 6 defendants. There were no restrictions on who could apply to the weaponization fund, making the pool of applicants so big that it could lower the per capita recovery, he said.
“The weaponization fund, for the brief fleeting moment which it allegedly existed, had no policies, procedures, or anything that would indicate what kind of evidence they would have required, what kind of format of a filing they would have required, or anything like that,” he said. “I never thought the weaponization fund, as a practical matter, was very meaningful. Whereas the FTCA gives you a statute with teeth that you can, as long as you can prove your claim, you have a right to recovery.”
Among those seeking money are Kenneth Joseph Thomas, an Ohio man who was sentenced to nearly five years in prison after being found guilty for assaulting several police officers. Video showed him shoving multiple police officers and throwing himself into a line of officers as he shouted for other rioters to “hold the fucking line”. Also seeking compensation is John George Todd III, a Missouri man sentenced to five years in prison after being found guilty on several charges, including injuring a Capitol police officer.
Both men are among nine plaintiffs seeking at least $1m each in damages in an FTCA suit filed 29 May in Washington DC. They say they are entitled to damages because they were unfairly and vindictively prosecuted by the government.
Andrew Taake, a Houston man sentenced to six years in prison and who pleaded guilty to assaulting police officers with bear spray and a whip-like weapon, is also seeking at least $2.5m in damages. Taake is entitled to damages because he received inadequate medical treatment and an unfair trial, his lawyers said in their FTCA lawsuit, filed last September in Washington.
Bhattacharyya said she believed the justice department could defend itself against the “malicious prosecution type claims” the January 6 defendants were bringing, and she hoped it would do so. When Trump filed his $10bn lawsuit against the IRS, the justice department did not try to defend itself against the suit.
“Most of these plaintiffs were indicted by grand juries, brought before a court. Many of them pled guilty, others were convicted, they were sentenced by judges, and so those sorts of malicious prosecution claims are eminently defensible,” she said.
Those who pleaded guilty or were convicted of assaulting police officers should still be entitled to payouts, McCloskey said. “The vast majority of people that pled guilty to or were found guilty of such offenses were either coerced into confessions based on threats of life imprisonment and threats against their family or went to trial in courts where the evidence was faked, rigged, perjury was testified to and fair trials were not had,” he said. There is no evidence of wrongdoing in the January 6 prosecutions.
In Taake’s case, the Trump administration is defending itself against the claims and seeking to have them thrown out. In February, a federal prosecutor in Washington wrote that many of the claims should be thrown out since the lawsuit did not name proper defendants and certain requirements were not met before the suit was filed.
The Trump administration faced immediate and bipartisan backlash after it announced it was creating the loosely controlled $1.8bn fund to resolve a $10bn lawsuit filed by Trump related to the leak of his tax returns. Some Republicans objected strongly to the idea that those who assaulted police officers could receive payouts.
“The concern my constituents and I have is that money possibly going to folks who hit cops,” Nick LaLota, a Republican congressman from New York, told NBC News. “Especially when there is video evidence, they shouldn’t get a dime from our government.”
Adam Schiff, a Democratic senator from California, introduced legislation last month that would bar anyone convicted of an offense related to January 6 from receiving a payout from the federal government. Among other things, the bill would amend the FTCA to prohibit those who were pardoned for actions related to January 6 from being eligible for claims.
“President Donald Trump still wants to pay off violent insurrectionists who attacked police officers on January 6th, despite any claims from members of his administration that say otherwise,” Schiff said in a statement. “Our taxpayer dollars should not be used to pay out criminals, and we can pass a law right now to prevent this president or any future administration from paying off their friends and political allies.”
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