Federal Tort Claims Act, over which DoJ has total discretion, provides workaround to Trump’s $1.8bn slush fund

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’s filed around 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.