I thought there was little President Donald Trump could do to surprise me. I was wrong.
The New York Times reported Tuesday that “President Trump is demanding that the Justice Department pay him about $230 million in compensation for the federal investigations into him.” The two claims were filed in 2023 and 2024 under the Federal Tort Claims Act. Even for this president, demanding money from the Justice Department is pretty brazen conduct, especially when you consider that the two people who would typically sign off on this payment were defense lawyers for the president or his aides.
This looks a lot like an inside deal that comes perilously close to offending the moral maxim that no one should be a judge in their own case.
Trump himself, for once, seems to recognize how this looks: “It’s awfully strange to make a decision where I’m paying myself,” he told reporters Tuesday after the Times published its story. While Trump did not confirm that his lawyers are seeking reimbursement or how much they were seeking, he said that the Justice Department “probably [owes] me a lot of money” and claimed that “any money I would get, I would give to charity.” But this is not just about money. It is another one of Trump’s frequent efforts to rewrite the past into a narrative of his victimization and ultimate victory.
The Federal Torts Claims Act allows monetary damages for “personal injury, property damage, or death” arising from the alleged negligence of federal employees acting within the scope of his or her official duties. The first step in the FTCA process involves a claimant seeking redress directly from the offending agency, in this case the Justice Department. If that fails, the claimant could bring a suit in federal court.
The first of Trump’s two claims asks for compensation for legal expenses he incurred during the investigation of collusion between his 2016 presidential campaign and Russia. Trump has long been obsessed with that investigation, which he regularly calls a “hoax.” That obsession has not dissipated, even after his return to the Oval Office. In August, for instance, Trump told Attorney General Pam Bondi to direct prosecutors to investigate the “Russia hoax” and bring charges against anyone who could be found culpable.
In the second claim, Trump demanded damages related to the government’s search of Mar-a-Lago in 2022 and the subsequent charges related to the classified documents he took from the White House at the end of his term. The filing from Trump’s lawyers claims he spent “tens of millions of dollars defending the case and his reputation,” and asked for $15 million in compensatory damages and $100 million in punitive damages. (The first claim is not public, but reportedly asks for a similar amount of damages.) As MSNBC’s Jordan Rubin pointed out last year, “courts have noted that punitive damages aren’t available in FTCA cases,” which would seem to undercut most of Trump’s claimed damages. But precedent has rarely deterred the president before.
Trump’s second claim accuses the government of a “malicious political prosecution” — which, given the recent charges against former FBI Director James Comey and New York Attorney General Letitia James, seems like a case of the pot calling the kettle black. A malicious prosecution only arises when an official brings criminal charges against someone without probable cause, with an intent to harm the person being prosecuted. As the Supreme Court held in 2022, a plaintiff has to show that “his prosecution ended without a conviction.” The Legal Information Institute at Cornell Law School notes that proving malicious prosecution also requires a showing that an official “acted primarily for a purpose other than succeeding on the merits of the claim; the plaintiff was harmed; and the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.”
The drafters of the Federal Torts Claims Act could never, in their wildest dreams, have contemplated the head of the executive branch seeking money from an agency that reports to him.
Given the current personnel in the Justice Department, it seems highly unlikely that Trump will have to resort to a lawsuit. The department’s procedure says that any substantial payments pursuant to the FTCA must be approved by the deputy attorney general or the head of the Justice Department’s civil division. The former, Todd Blanche, served as the president’s lead criminal defense lawyer prior to his current position. The latter, Stanley Woodward, represented one of the president’s co-defendants in the classified documents case. Woodward also represented several other Trump aides, including FBI Director Kash Patel.
The way things are playing out, this looks a lot like an inside deal that comes perilously close to offending the moral maxim that no one should be a judge in their own case. Federal law already says that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.” The Justice Department’s definition of personal conflicts includes “an organization which an employee now serves or has served, as an employee or in another capacity, within the past year.” In short, as Pace University law professor Bennett L. Gershman told the Times, “The ethical conflict is just so basic and fundamental, you don’t need a law professor to explain it.” The drafters of the Federal Torts Claims Act could never, in their wildest dreams, have contemplated the head of the executive branch seeking money from an agency that reports to him, with the key decision-makers being so dependent on his favor and previously so involved in matters giving rise to the complaint the president has filed. But it seems nothing is too improbable for the Trump presidency. With millions of Americans on the cusp of losing their health insurance, and millions more struggling to make ends meet, it seems grotesque that a billionaire president would make taxpayers pay for his legal expenses in cases that by no stretch of the imagination can rightly be characterized as malicious. Hopefully, the offensiveness of that effort will awaken more Americans to the self-serving commitments of the president and his administration.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
