Left: Former President Donald Trump (AP Photo/Yuki Iwamura). Right: Attorney General Merrick Garland delivers a statement at the Department of Justice in Washington, DC (Photo by Drew Angerer/Getty Images).
Former President Donald Trump is demanding $100 million in punitive damages from the DOJ and the FBI, claiming that Judge Aileen Cannon’s dismissal of special counsel Jack Smith’s Mar-a-Lago prosecution, currently on appeal at the 11th Circuit, is proof enough that the feds’ August 2022 search amounted to “tortious conduct” that, among other things, substantially racked up already exorbitant legal bills.
A memo attached to a notice of a Trump claim under the Federal Tort Claims Act (FTCA) filed by attorney Daniel Z. Epstein, alleges the “tortious acts against the President are rooted in intrusion upon seclusion, malicious prosecution, and abuse of process” stemming from the Mar-a-Lago search, describing that as “highly offensive to a reasonable person.”
Notably, before the Trump-appointed jurist jettisoned the case, Cannon wrote that Trump had not “meaningfully challenge[d]” probable cause and alleged warrant “omissions,” and her subsequent dismissal of the Espionage Act indictment on Appointment Clause grounds meant that Trump’s motion to dismiss on grounds of selective or vindictive prosecution was rejected as moot (i.e., was never decided on the merits) along with other pending motions.
Nevertheless, as the DOJ-authorized appeal of the dismissal remains pending, Trump assigns blame to U.S. Attorney General Merrick Garland and FBI Director Christopher Wray for engaging in “clear dereliction of constitutional principles, inconsistent standards as applied to the prospective plaintiff, and a clear intent to engage in political persecution” by pushing ahead with the Mar-a-Lago search without his “consent.”
“Garland and Wray should have never approved a raid and subsequent indictment of President Trump because the well-established protocol with former U.S. presidents is to use non-enforcement means to obtain records of the United States,” the memo said. “But notwithstanding the fact that the raid should have never occurred, Garland and Wray should have ensured their agents sought consent from President Trump, notified his lawyers, and sought cooperation. Garland and Wray decided to stray from established protocol to injure President Trump.”
Again, though Cannon’s dismissal of the classified documents indictment was not based on a lack of probable cause, the Trump FTCA claim slammed the “overbreadth of the search warrant” and quoted UC Berkeley law professor John Yoo as an authority.
[W]e’ve never indicted a former president before. And so that itself [is] a major hurdle. That’s a major statement to say we have probable cause; we, the government, have probable cause to believe that this former president, President Trump, has committed a federal crime. And then the second thing is, if you look at the search warrant, the same thing I think is really important is the breadth of it. It says, essentially, you, the FBI, can look in President Trump’s home for any document at all that was created by President Trump in the time period of his presidency.
So, it actually goes well beyond just searching for classified information. And so that, that’s what causes, I think, a lot of the controversy over it, is one was this necessary, putting aside whether it’s a constitutional search or not, I think it is, and we can get in that. But when was it necessary? And then two, why the breadth? Why look for a lot more than just classified information?
The filing also made the claim that Trump was treated in the classified documents prosecution in a “starkly different” way than a special counsel treated President Joe Biden.
“President Trump had a good faith belief justifying his initial possession of the relevant documents and returned certain records within a much more reasonable amount of time than former Vice President Biden did,” the filing said. “Furthermore, consider that almost five (5) years after President Obama’s presidency ended, his representatives discovered presidential records in his personal custody.”
When special counsel Robert Hur released his report on the Biden classified documents investigation, noting that DOJ policy rules out charges against a sitting president, the special counsel said even though there was evidence Biden “willfully retained and disclosed classified materials” after his vice presidency, a jury wouldn’t want to convict the president, whom he called a “sympathetic, well-meaning, elderly man with a poor memory.”
Hur also took into account the differences between the facts in the Biden case and the alleged facts in Trump’s Mar-a-Lago case.
“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts,” the Hur report said. “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”
In alleging damages to Trump, the tort claim memo said that the DOJ and FBI’s “oppression, wantonness, and reckless disregard of President Trump’s rights” in his case caused him “actual harm” to the tune of $15 million in legal bills, tacking on to the “legal costs of over $60 million per year since shortly after he left office,” according to a footnote at the end of the filing.
“While the Special Counsel case was not the only source of legal expenses for the President, it represents a significant source of legal costs. Moreover, having to defend against lawsuits means the President has less revenue for other campaign-related expenditures,” the footnote said.
Legal analyst and former federal prosecutor Renato Mariotti, for one, remarked that the legal action “has almost no chance of success” and is “likely just a publicity stunt.”
This lawsuit has almost no chance of success.
It is likely just a publicity stunt. https://t.co/CsAqovg8Cm
— Renato Mariotti (@renato_mariotti) August 12, 2024
Law&Crime sought additional comment from attorney Epstein. The FBI declined to comment. The DOJ has reportedly declined to comment.
Trump campaign spokesman Steven Cheung said in a statement to Law&Crime that the tort claim represents a continuation of a “fight against blatant Election Interference by Kamala Harris and Joe Biden’s weaponized Department of Justice.”
“As the complaint powerfully details, the raid on Mar-a-Lago was Illegal and Unconstitutional, as are all of the Democrat Witch Hunts that are now falling apart like the rotten house of cards that they are, and which should be immediately dismissed in order to bring unity back to our Nation,” Cheung said.
Read the Trump claim against the FBI and DOJ here.
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