What DOJ Should Do With Trump’s $230M Demand: Nothing
President Trump last week said that the government owes him a lot of money for previous investigations into his conduct; namely, he is seeking $230 million in two separate claims involving the inquiry into whether his 2016 presidential campaign had worked with Russia and the search of his Mar-a-Lago estate.
“It’s awfully strange to make a decision where I’m paying myself,” he told reporters. “Did you ever have one of those cases where you have to decide how much you’re paying yourself in damages?”
If the Justice Department settles the Federal Tort Claims Act (FTCA) administrative claims reportedly filed by President Trump, it would be a travesty and would work an actual injustice on the American people.
For 12 of my 22 years as an attorney at the Department of Justice, I handled tort claims in both the administrative claims process and in federal court litigation.
“Above all else, do Justice” has long been the ethical standard that drives DOJ attorneys. Doing nothing in response to these administrative claims is the best and only option here.
Claims the FTCA typically covers
The FTCA was enacted by Congress in 1946 to give people injured by negligent acts of their government a pathway to sue to recover money to compensate for the injury.
Imagine a pedestrian injured by a federal employee driving a government car on government business who runs a red light. Or a tourist who slips and falls in a federal building due to inadequate signage. Or a patient injured by negligent treatment in a federal medical facility.
Under a doctrine called sovereign immunity, the United States can be sued for money damages only if it consents to such a suit. Congress, through its power of the purse, decides when to consent to lawsuits and under what circumstances, through the enactment of laws. The FTCA, for example, permits personal injury claims against the United States in certain defined and limited circumstances, including for intentional torts like those alleged by President Trump, when done by federal law enforcement officers.
Before bringing a lawsuit under the FTCA, you first must file a claim with the federal agency that allegedly injured you. Then, you must wait six months to give the agency time to act on your claim before you can file suit. It is important to note that the agency is not required to decide your administrative claim; and agencies often don’t for a host of reasons.
The one claim filed by President Trump that is publicly available was filed in August 2024; the other was reportedly filed in 2023. That means that both claims’ six-month waiting periods have passed, and if President Trump has viable legal claims to press, he may do so at any time by filing a lawsuit in federal court.
So long as the agency does not deny the administrative claim, there is no subsequent deadline within which litigation needs to be filed (absent a limiting law in the state where the tort occurred, which does not seem to be the case here). If the administrative claim is denied, the claimant has six months from the date of notice of the denial to file suit.
Trump’s administrative claims should not be settled
So, why not settle these administrative claims?
Two big reasons.
First, I’m a tort lawyer, not an ethics specialist, but any lawyer should spot the massive ethical problems with any settlement in this case. (DOJ gave a nod to these ethical challenges, telling reporters that “In any circumstance, all officials at the Department of Justice follow the guidance of career ethics officials.”)
Although Department regulations provide Deputy Attorney General Todd Blanche and/or Associate Attorney General Stanley Woodward with the authority to approve a settlement of this kind, they plainly should not exercise that power given their prior role as personal lawyers to the President, including, at least on Woodward’s part, in connection with some of the very activity alleged to have given rise to the injury.
Nothing requires them to act; the FTCA does not require agencies to decide administrative claims.
Even if you bypass Blanche and Woodward, perhaps by having the Attorney General exercise her own authority to settle, there is the second massive ethical problem associated with the fact that each of these officials owes their job to the President. They are all personally invested in the outcome and should not make any decision at all. Joseph Tirrell, the department’s top ethics official until he was abruptly fired in July, agreed with this in a recent post: “[N]o DOJ employee can decide the President’s claim without the appearance, or reality, of pressure from the President.”
Additionally, these Department officials are entrusted with money belonging to the American people.
FTCA administrative settlements are paid out of the Judgment Fund, administered by the Department of the Treasury; that Fund is taxpayer money. No steward of that money should pay it out in a circumstance that would raise such significant ethical concerns – absent a final court order requiring them to do so.
Second, and more importantly, even apart from the ethical considerations, these are not claims suited to administrative settlement.
Administrative FTCA settlements are not rare, but they follow a pattern. As a general rule, they are approved when the United States’s liability for the claim is plainly proven by the facts of the claim. The employee who runs a red light. The building supervisor who fails to set out a “slippery when wet” sign. The doctor who carelessly deviates from the established standard of care.
Traffic cases and medical malpractice claims make up the vast majority of administrative tort settlements; of the just over 40,000 FTCA claims reported to be administratively settled across the government in the last 15 years, more than 37,000 fall into those two categories.
The remaining 3,000 covered all other categories of tort, law enforcement misconduct among them.
Evaluating the legal risk, value and fairness of a claim
So, how should the Department evaluate the claim filed by President Trump? The same way any lawyer assesses any settlement.
Start with legal risk. What are the chances the United States would be held liable for the conduct alleged if the case proceeded to litigation? At least as to the claim that is publicly available, the President claims injuries arising from the execution of a search warrant issued by a federal judge, upon a finding of probable cause, that was supported by a sworn affidavit signed, under penalty of perjury, by an FBI agent. That warrant has already been upheld by not one but two federal judges, including Judge Aileen Cannon, who found that nothing the President alleged when challenging the warrant in his criminal case “would have defeated the finding of probable cause.” That is a defensible case under the FTCA.
(Indeed, my very first case at DOJ was a lawsuit for torts arising from the execution of a search warrant, where police relied on a tip from a reliable confidential informant to secure the warrant, but it turned out that the informant was mistaken and the house they busted into in the early hours of the morning was not the residence of the person they wanted. The government won the case without the need for a trial.)
Another consideration might be the value of that legal risk. The Department and its subcomponents (ATF, BOP, DEA, EOUSA, FBI, and USMS) reportedly have settled fewer than 400 FTCA claims administratively in the last 15 years.
One of those was the 2013 $4.1 million settlement in the infamous and outrageous case of Daniel Chong (a case I recall vividly). One hundred and thirty-nine more were part of the $138.7 million settlement to victims of Larry Nassar—who sexually abused more than 100 girls as a gymnastics coach—after DOJ’s Office of the Inspector General found that the FBI had made “numerous and fundamental errors” in their botched handling of the case. The FBI described the conduct of the agents involved as “inexcusable and a discredit to the organization.” That is a case that makes sense to settle.
Of the remaining few hundred reported administrative settlements, the average DOJ settlement was just over $14,000; the highest $375,000.
As the Special Master for the September 11th Victims Compensation Fund from 2016-2022, I was responsible for tens of thousands of administrative claim settlements under a different law in cases where first responders suffered from cancer and other ailments or died because of their work on 9/11 and in its aftermath. I cannot recall a settlement over $5 million on any single claim I decided. Hundreds of millions of dollars in settlement of an administrative claim is unheard of and rightly so.
No one entrusted with public funds should pay anywhere near that amount of money to settle an FTCA claim where legal defenses exist and the facts supporting the claim are untested or, as here, have been tested and found wanting, in a court of law.
A third factor to consider is fairness and equity in the form of consistency with other settlements. Indeed, federal regulations limit FTCA administrative claim settlements by agencies because the claims are untested, and they ensure that some level of consistency attaches to settlements that are approved.
Each agency has a certain amount of delegated authority from the Attorney General to settle administrative claims; in general, this amount is $25,000, although there are higher delegations for certain agencies.
Settlements over the delegated amounts must be approved by DOJ. These delegated grants of settlement authority are intentionally low; as a result, agencies are required to explain and defend any settlement recommendation they make, and DOJ conducts some level of consistency review for approved settlements, so that, for example, the person that slips and falls at a VA Hospital does not receive substantially more in settlement than the person who slips and falls in a federal courthouse.
DOJ officials are, as we used to say, “the keepers of the Judgment Fund”; they have a responsibility to ensure that settlement funds are reserved for cases where the United States’s liability is proven or obvious.
And, although DOJ, like any other litigant, will sometimes settle small claims for nuisance value to conserve resources, even if they could be defended, that should not be the approach to claims seeking anything remotely close to what President Trump has demanded.
Finally, as any litigator will tell you, settlements can be influenced by other factors. In some cases, it may be wise to avoid a public trial or bad publicity, and a quiet settlement might be the best path. In other cases, there may be issues with witnesses that make you hesitant to rely on their testimony. It may be that, in the lawyer’s honest judgment, an earlier settlement might be a better outcome for the client than a later one. It may be that you know (or suspect) that development of the facts through discovery won’t help. Or it may simply be that scarce resources are needed elsewhere. None of these factors alone should drive a settlement decision but they are considered (and appropriately so). But, here, there is every reason to avoid settling an administrative claim that raises so many questions about fairness, ethics, and Departmental integrity, and that raises the specter of opportunism, corruption, and grift.
Doing nothing is the right choice
In response to these administrative claims, the Department should do nothing.
If President Trump wants to press his legal claims in a court of law, let him try, as thousands of tort claimants do every year.
Settling President Trump’s administrative claims before there has been any opportunity to test or defend those claims should be a nonstarter for the Justice Department if it is to retain any integrity, a commitment to doing justice, and a sense of responsibility for the U.S. taxpayer dollars with which they have been entrusted.
In my day, DOJ would never have given serious consideration to the idea of administratively settling claims like these.
Now, I guess we’ll find out.
Rupa Bhattacharyya spent 20 years in DOJ’s Civil Division—including as the Special Master for the September 11th Victim Compensation Fund, the Director of the Office of Constitutional and Specialized Tort Litigation Section, and an attorney in the Federal Programs Branch.
