The Trump administration is quietly turning to a 1946 statute to funnel millions of dollars to pardoned January 6 defendants. By utilizing the Federal Tort Claims Act, attorneys for those who stormed the Capitol are bypassing Congress completely, tapping into a virtually limitless federal fund that requires no judicial approval for out-of-court settlements. This strategy emerged almost immediately after intense bipartisan blowback forced the White House to shelve its highly controversial $1.8 billion anti-weaponization fund.
Instead of an exposed, politically toxic new program, the administration is now leveraging an institutional backdoor. The Department of Justice possesses unchecked discretion to settle these administrative claims. Once a settlement is signed, the cash flows directly from the Judgment Fund, a permanent congressional appropriation that operates in the shadows of the Department of the Treasury. This shifts the battleground from a public debate over executive overreach to an obscure bureaucratic procedure.
The Mechanism of an Institutional Backdoor
The Federal Tort Claims Act (FTCA) was originally designed to give ordinary citizens a way to sue the government when a federal employee caused them harm, such as a mail truck hitting a pedestrian. It requires claimants to first file an administrative complaint, known as a Standard Form 95, with the accused agency. The agency then has a six-month window to investigate, deny the claim, or settle it out of court.
If the Department of Justice decides to settle an FTCA claim before a formal lawsuit is filed, the agreement remains entirely internal. No federal judge ever looks at the merits. No courtroom transcript is produced.
Peter Ticktin, a Florida attorney and longtime associate of the president, has confirmed that his office has already filed roughly 400 of these administrative claims on behalf of January 6 defendants. The financial demands are staggering. For example, Andrew Taake, a Houston man who pleaded guilty to assaulting police officers with bear spray and a whip-like weapon before receiving a presidential pardon, is seeking at least $2.5 million in damages.
Tapping the Permanent Pot
The money to satisfy these claims does not come from the Department of Justice budget. It comes from the Judgment Fund.
| Key Elements of the FTCA Payout Strategy | Description |
|---|---|
| Filing Vehicle | Standard Form 95 administrative tort claims alleging ongoing malicious prosecution. |
| Discretionary Authority | The Department of Justice can settle claims internally without judicial review. |
| Funding Source | The Judgment Fund, a perpetual, uncapped Treasury appropriation. |
| Volume | Over 400 claims currently filed by aligned legal teams. |
Congress established the Judgment Fund to ensure the government could pay its legal debts without needing a specific vote for every single court judgment. It is an open-ended, automatically replenished pot of money. By shifting the venue from the aborted anti-weaponization fund to the FTCA, the administration has found a way to achieve the same result using a mechanism that already possesses a permanent funding stream.
Engineering an Ongoing Harm Argument
To understand how a convicted rioter can claim the government owes them millions, one must examine the legal theory being deployed by conservative legal teams. Under standard rules, an FTCA claim must be filed within two years of the alleged government wrongdoing. The events of January 6, 2021, and the subsequent prosecutions occurred well outside this window.
To circumvent this statutory deadline, claimants argue that the prosecutions constituted a malicious, politically motivated conspiracy that inflicts ongoing harm. The narrative asserts that the previous administration used law enforcement, intelligence, and regulatory agencies to target political dissidents. Because the financial, reputational, and psychological damage continues to this day, their attorneys argue the two-year clock has not run out.
The legal reality is that these claims are highly vulnerable under normal circumstances. Most of these individuals were indicted by grand juries, entered voluntary guilty pleas, or were convicted by juries before federal judges. In standard practice, a grand jury indictment creates a nearly insurmountable presumption that the prosecution was justified, effectively defeating a malicious prosecution claim.
However, standard practice assumes an adversarial Department of Justice that wants to defend the federal government. When the leadership of the department actively agrees with the plaintiffs' premise that the original prosecutions were corrupt, the defense simply evaporates. The government can choose to concede rather than fight.
Precedents for Executive Discretion
The strategy is already proven. Earlier this year, the Department of Justice agreed to settle FTCA claims filed by former National Security Adviser Michael Flynn and former foreign policy adviser Carter Page, awarding each man $1.25 million. Those settlements served as a proof of concept for the broader network of January 6 defendants.
When the administration settled those high-profile cases, it demonstrated that the civil division of the Department of Justice could use its settlement authority to rewrite the narrative of past investigations. Legal experts point out that the department traditionally settles cases only when it faces a severe risk of losing at trial. In these instances, the risk of losing is non-existent because the department has no intention of presenting a robust defense.
This process hollows out the traditional system of checks and balances. While Capitol Police officers have filed lawsuits to block the formal $1.8 billion weaponization fund, blocking individual administrative tort settlements is far more difficult. Outsiders generally lack the legal standing to intervene in a settlement agreement between a plaintiff and the federal government.
The Legislative Counteroffensive
Democratic lawmakers are scrambling to close the backdoor. Senator Adam Schiff introduced legislation designed to amend the FTCA, explicitly barring anyone convicted of an offense related to the Capitol riot from receiving a federal payout. The bill specifically targets those who received presidential pardons, aiming to cut off their access to the Judgment Fund.
The political reality is that such legislation faces a brutal path through a divided Congress. Even if it managed to pass, the administration would almost certainly veto it. For the foreseeable future, the control of these millions rests entirely within the executive branch.
The Treasury Department could theoretically refuse to disburse the funds if it determines the settlements do not meet the legal criteria of resolving genuine risk of liability. Yet, the institutional independence required for the Treasury to reject a directive from a compliant Department of Justice is thin. The guardrails have shifted from statutory text to bureaucratic compliance.
The strategy marks a fundamental shift in how executive power is exercised. Rather than fighting public battles over budgets or creating new agencies, the administration is using old laws, quiet filings, and an automatic checkbook to reward its loyalists.
The six-month waiting period for the first wave of these 400 claims has expired. The administrative filings are now primed to transition into formal stipulated settlements or unchallenged lawsuits. The architecture is complete, the funding is secure, and the payouts are positioned to begin.
