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For several weeks, we've been meaning to get to the legal perspective on this issue, and now the day has arrived. In short: Donald Trump and his subservient officials at the Department of Justice are really playing with fire with payouts to his supporters and co-conspirators in the effort to defraud voters and overturn the 2020 election results.
So far, the DoJ has paid out $8.5 million to allies and supporters who claim they were unfairly targeted by the feds. Carter Page received $1.25 million despite the fact that multiple courts had dismissed his suits against the federal government on the grounds that the statute of limitations had run. There has been no explanation for the payout other than the standard "weaponization" line, despite the fact that Page actively engaged with Russian government officials while working for the Trump campaign.
Last month, the DOJ paid Michael Flynn, Trump's former national security adviser, $1 million and claimed he, too, was a victim of overzealous law enforcement. Flynn pleaded guilty to lying to the FBI about his involvement with Russian officials. So, he admitted to the crime and yet somehow gets paid by Trump's DOJ? What exactly is he being paid for? His continued silence and cooperation? Has anyone gotten a cut of this "settlement?"
And now, former Trump Chief of Staff Mark Meadows has gotten in on the action by filing his own claim to be reimbursed for his legal fees expended for defying Congressional subpoenas and evading special counsel Jack Smith's investigation.
Of course, Trump himself has filed two separate claims totaling $230 million. And that's not including his most recent suit against the IRS for $250 million. And more than 450 people who were accused or convicted of participating in the Jan. 6 insurrection have also filed claims under the Federal Tort Claims Act. These claims haven't been settled yet, but they also haven't been rejected.
There are several ways these payouts can backfire. If a lawsuit has been filed, then a federal judge can, and does, scrutinize proposed settlements, particularly when the government and taxpayer money is involved. The court will look at possible collusion and acts that are contrary to the public interest. They will also ensure that federal officials are not abusing their power or that settlements are not inflated to boost attorneys' fees. With respect to collusion, it's illegal to initiate a fake lawsuit ginned up to secure a pre-determined payout. And courts are well-equipped to suss out these shenanigans. A good example is the lawsuit against the Los Angeles Department of Water and Power (LADWP) over excessive billing. It turns out that the lawyer for the lead plaintiff was also doing work for the City and, instead of representing his client to the best of his ability, was actually low-balling the settlement figure to help LADWP. Here, the reverse appears to be true. Instead of vigorously defending the U.S. and the American people that the DoJ is supposed to be representing, they appear to be working with the plaintiffs to get them a nice, fat payout regardless of the merits, or lack thereof, of the claims. This is illegal.
It gets a little more complicated if we're not at the lawsuit stage, but only at the stage where a claim has been filed under the Federal Tort Claims Act (FTCA). Under the FTCA, people who believe they've been damaged by the federal government must first file a claim before bringing a lawsuit in federal court. In normal times, when the administration and DoJ were not in cahoots and on the take, this requirement allows the government to look at the claim first to determine if there is any merit and decide whether to accept or reject it. If the claim is rejected, then a lawsuit may be brought. But here, it appears that Trump and other supporters, like the Jan. 6 rioters, are using the FTCA to avoid any kind of court scrutiny of these frivolous claims. Nonetheless, there will still be evidence as to how these claims were initiated, who determined the payouts and who approved them and on what basis. There will also be communications between the parties' lawyers that are not privileged. For example, Mark Houck, who was indicted for violence at a Planned Parenthood and whose later suit for compensation was dismissed for lack of evidence, said that he was getting nowhere until his lawyer spoke with Stanley Woodward, Trump's former defense attorney. If there is evidence of collusion between those parties, they can be prosecuted and the settlement disgorged.
Even if a judge doesn't reject the settlements or doesn't get the chance to review them, let's hope these people put the money into an escrow account, because the next administration can claw it back. And even before then, a Democratic House can investigate these arrangements. In fact, Rep. Jamie Raskin (D-MD) has already written to the DoJ demanding a "full accounting" of the taxpayer funds spent on these settlements.
Federal officials who approved the payouts can also be prosecuted for the misuse of public funds. And if there is evidence of any kickbacks (and come on, this is Trump and his MAGA mafia we're talking about), they're looking at serious jail time.
Beyond Congress and the next administration, state attorneys general can also scrutinize these deals. It's not hard to imagine New York AG Letitia James leading a lawsuit by several state attorneys general for collusion, fraud, and other violations for systematic abuse of the public trust.
As for Trump's exposure, the Supreme Court said in the immunity case that any discussions the president has with the DoJ are per se official conduct, but one wonders if they would carve out an exception for "settlement discussions" where the president is a private plaintiff who sued the government in his personal capacity and who is negotiating with his hand-picked attorneys in the DoJ whose continued employment he controls. It's hard to see a more clear case of self-dealing and collusion. Trump may think he's only limited by his own morality, but the law, however slowly it moves, may prove otherwise. (L)