DOJ and Flynn Collude to Raid Taxpayer Coffers
The Flynn settlement is already being used as a blueprint for MAGA to raid the public purse.
Editor’s Note: This is the second of a two-part series on the DOJ’s settlement with Michael Flynn. Part I traced the criminal case against Flynn—the Kislyak calls, the lies, the guilty plea, the Barr intervention, and the pardon—arguing that the prosecution was entirely legitimate and Flynn’s escape from accountability was itself a scandal. This part covers Flynn’s 2023 civil lawsuit for malicious prosecution, the collusive settlement Bondi’s DOJ agreed to, and the implications of the episode for Trump’s relentless effort to rewrite the history of his post-election conduct.
On March 3, 2023, Flynn filed suit against the United States under the Federal Tort Claims Act (FTCA), seeking $50 million. The complaint reads less like a legal pleading than a political manifesto. It strings together a maximalist account of FBI bad faith, speculating freely about investigators’ motives and adopting wholesale the narrative that the Russia investigation was not just flawed, but fundamentally corrupt.
In the new Wonderland version, Flynn’s guilty plea became the product of entrapment. Crossfire Hurricane was illegitimate from the start. The Strzok-Page affair was thrown in for color. It was the complete MAGA narrative, dressed in the language of tort law.
Even setting aside the merits, the legal hurdles were enormous. The FTCA is not a general compensation scheme for grievances against federal law enforcement. It is a narrow waiver of sovereign immunity, typically limited to concrete out-of-pocket harms such as attorneys’ fees or demonstrable damages.
FTCA claims also face strict jurisdictional limits: claimants can’t collect for officials’ determinations that turn on the exercise of discretion—for example, a police officer’s decision to use force on a frothing crowd. Most importantly, malicious prosecution claims under the FTCA are extraordinarily difficult to sustain—a plaintiff must show both that the prosecution terminated in his favor and that it was brought without probable cause.
Before filing in federal court, Flynn was required to exhaust administrative remedies by presenting his claim to DOJ and giving the department an opportunity to respond. The Biden DOJ responded as any responsible steward of the public fisc would do: it moved to dismiss, proffering an overwhelming argument, including the probable cause for the prosecution and Flynn’s guilty pleas.
The court agreed, throwing out the complaint in December 2024 — but without prejudice, giving Flynn leave to amend. The judge added a pointed warning: any amended complaint should “not run afoul” of the federal rule prohibiting baseless factual contentions and frivolous arguments. Flynn filed his second amended complaint last June. And then Trump returned to power.
From that point forward, the legal drama degenerated into a total farce.
As I explained in a previous Substack, “The Collusive Presidency,” federal courts are built on adversarial presentation. Judges rely on the parties to press competing arguments, to test claims, and to expose weaknesses. The Constitution’s case-or-controversy requirement means that parties can’t bring collusive cases in which the fight is just theater. The system breaks down when adverseness dissolves– when the government, instead of resisting a claim, effectively joins it.
In January, Flynn filed a new FTCA complaint. It tried to tack around part of Sullivan’s reasoning in granting the motion to dismiss. The core of the complaint was the same MAGA paranoid fantasy.
Whereas the previous DOJ had answered with vigor, Pam Bondi’s DOJ—staffed in significant part by people who share Flynn’s precise view of the Russia investigation—did not contest the amended complaint at all. It filed no response.
The next thing that happened on the record in the case was last week’s agreement to let Flynn help himself to $1.25 million of taxpayer money. The department’s institutional obligation to evaluate litigation risk soberly and safeguard public funds gave way to outright collusion.
Besides giving Flynn an ample payday, the faux settlement advanced the complaint’s wholly false narrative. The DOJ’s official statement called the settlement “an important step in redressing” what it described as a “historic injustice.” That was its recharacterization of a prosecution of a man who admitted and pleaded guilty to lying to federal investigators, enabling Moscow to hold information over him, while an American vice president unknowingly repeated those lies on national television to the American people.
It’s a rigged carny game, in which the marks are the American people. And Flynn won’t be the last to try his hand at it.
Trump has spoken openly about wanting to turn his own prosecutions into paydays, throwing out numbers like $200 million and $500 million. The FTCA has caps and technical requirements that tether any award to specific out of pocket costs. There never has been a suit for malicious prosecution with an award anywhere in the vicinity. But what’s an extra couple hundred million between friends?
It’s not just Trump either. Leaders of the Proud Boys have already filed similar suits. Every official government concession that a legitimate prosecution was a “historic injustice” is an invitation to the next aggrieved Trump ally to try his luck. The January 6 defendants are watching. Their lawyers certainly are.
Indeed, as if on cue, members of the January 6 mob filed suit just two days after the Flynn settlement was announced. It’s supposedly an FTCA class action—an exceedingly rare category that courts almost never permit—claiming injuries at the hands of the Capitol Police officers who fended off their attack. It’s almost certain to be dismissed under FTCA rules that prohibit recovery for conduct based on a discretionary function, in this case, the (completely reasonable) determination by Capitol Police to use force against the marauders.
The muddled complaint describes the rioters as “overwhelmingly peaceful” protesters exercising their First Amendment rights. Among the named plaintiffs: a Proud Boy charged with assault, the man who smashed a Capitol window with a stolen riot shield, and the man who pepper-sprayed a line of police officers. The putative class runs to hundreds or potentially thousands, with over $18 million already claimed in administrative filings.
The Flynn settlement didn’t just invite this. It showed them exactly how it’s done.
These cases seek undeserved bounties based on outrageously false self-serving yarns that Trump has been trying to sell for years. And the American people get snookered not just for money. The settlements are a one-two punch: a big, undeserved check, and a DOJ press release recasting rogues as patriots and an insurrection as a love-in. That’s a different kind of theft, one designed to steal off with the truth that is the people’s due in a democracy.
The payout to Flynn provides a sort of veneer papering over the facts. There it is: a legal complaint that the Department of Justice saw as sufficiently meritorious to agree to a huge payout in FTCA terms. Thus, the settlement lends support to Flynn’s effort to recast the entire Russia investigation as illegitimate. And it creates a template—one that others will surely notice—for turning grievance into recovery without the inconvenience of an adversary proceeding and judicial scrutiny.
The facts, of course, are just below the veneer, and they remain rock solid. Flynn lied to the FBI. He lied to the vice president. He gave Moscow leverage over him before Trump had even taken office. He admitted all of it under oath. The check he just cashed doesn’t change any of that.
But Trump owns this carnival, and the DOJ runs his game; the grift is repeating the lie loudly enough, officially enough, and expensively enough to try to bludgeon the truth into submission. With such a shameless carny, ignore the patter, and always, always watch the hands.
Talk to you later.
I'm not an attorney just a lowly RN, but even I can see Flynn belongs in jail, along with Bondi and the rest of this administration inner circle.
I’ve so fcking had it with this corrupt administration. It’s beyond next level corruption!