Déjà vu all over again.
Former US president Donald Trump speaks to members of the media after testifying in his civil fraud trial at the New York State Supreme Court in New York City on November 6, 2023.(Adam Gray / AFP / Getty)
Apart from campaigning, Trump continues to work his cottage industry—lawfare. He has just sued the Justice Department for $100 million. It is his inveterate number. He also loves to trash the FBI. Undermine the justice system? He does it with great relish. He did it before; he is doing it now.
It is no secret that Donald Trump doesn’t like the Justice Department or the FBI, whatever its leadership. This has been true historically, irrespective of whether it is Merrick Garland or Christopher Wray who captain the law enforcement establishment.
In 1973, the Justice Department’s Civil Rights Division charged Trump and his father with violations of the Fair Housing Act. The violations occurred at 39 Trump owned and managed buildings in Brooklyn, Queens, and Staten Island.
Trump hired the fixer lawyer Roy Cohn to defend the case. He learned from Cohn the dubious approach of keeping the government off-balance and creating a sideshow that would distract from the main event. Trump charged the FBI with using Gestapo-like tactics in working up the case. He could not have blamed Christopher Wray for his legal plight. Director Wray was only 7 years old at the time. He could not have blamed AG Garland either. He might have blamed the “deep state,” but the phrase wasn’t in currency then.
The outlook wasn’t brilliant for the Trumps, as the case was drowning in evidence of systematic racial discrimination. The facts were appalling, even for 1973. It seems that when a Black “tester” sought to rent an apartment at the Trumps’s Shore Haven properties in Brooklyn, the superintendent turned her away, saying that nothing was available. Thereafter, when a white tester applied, the same superintendent said she could “immediately rent either one or two available apartments.”
The white tester stated that the superintendent fessed up that his “superiors” had directed him to follow a racially discriminatory rental policy. Trump employees coded Black and Latino applications with cryptic designations such as “C” or “No. 9.”
Doormen at the premises told the FBI they were instructed to discourage Black applicants by saying the superintendent was unavailable. A super said he was instructed to send Black applicants to the central office for processing, while white applicants were accepted on the spot.
The proof also showed that Trump turned his properties into a ghetto, with minorities packed into his Patio Gardens property, which was 40 percent Black, while his Ocean Terrace apartments housed only 1 percent African Americans. The Trumps also quoted different rental terms and conditions to Black applicants.
A number of reputable lawyers told the Trumps to settle the case with a consent decree neither admitting nor denying the charges, but agreeing to discriminate no more. But Trump wanted to “fight.”
Sound familiar? A Justice Department memo noted “a long series of delaying tactics…among which were a $100 million counterclaim against the United States and a motion to hold a [Civil Rights] Division attorney in contempt of court for alleged ‘Gestapo-like’ interviewing tactics.”
With giant fanfare, Trump filed a counterclaim against the Justice Department for $100 million. The purported basis of the counterclaim was that the government had blackened his reputation by bringing the suit. He said the charges were irresponsible and baseless. The federal judge, wryly noting that $100 million was a “tidy sum,” dismissed the counterclaim two months after it was filed.
Trump learned how to work the press with Cohn holding a press conference to brief the media. He contended that Trump didn’t discriminate against Black people—only welfare recipients, and the entire case was a lie concocted by the FBI and the Justice Department. Cohn claimed his clients were victims of persecution, and demanded a hearing to show there was impropriety in the investigation. When the Justice Department put his feet to the fire, Cohn backed off, trying to put off the hearing. He was unsuccessful. After a brief hearing, the court found, as follows:
I find no evidence in the record that anything in the nature of Gestapo tactics were permitted by the FBI in doing the tasks assigned to them.
I consider that an extraordinary charge to make about an agency which, in my view, has always acted…with the utmost politeness and respect for the rules and laws of this country.…
I feel that nothing here would amount to any reason why this Court should condemn them or punish them for what they have done here. And…I therefore grant the government’s motion to strike this application from the record.
Flash forward.
Just this month, Trump filed an administrative claim against the Justice Department seeking $100 million in damages allegedly arising out of the search of his Mar-a-Lago home. What he seeks to accomplish with this lawsuit is unfathomable. He certainly doesn’t need the money. The insuperable barrier is that the search was upheld by the US Court of Appeals for the 11th Circuit.
Trump’s lawyers have politicized the case. His attorney’s filing was replete with conclusory allegations. “The intrusion into President Trump’s seclusion, the abuse of process by the Garland Department of Justice and Wray FBI, and the subsequent malicious prosecution are particularly egregious, showing willful, wanton, oppressive, and malicious intent by the Department of Justice and FBI.”
The Justice Department has 180 days to review the claim, after which the case could proceed in federal court. The case will not get very far. Professor Larry Tribe of Harvard Law School expressed the immediate reaction of most lawyers: “Trump’s lawsuit seeking $100M in damages from DOJ for the Mar-a-Lago search is utterly frivolous and will just waste judicial resources.” Trump is no stranger to wasting judicial resources. Mark Twain is supposed to have said that, “History doesn’t repeat itself, but it often rhymes.”
James D. ZirinJames D. Zirin, a lawyer, is the author of the new book Supremely Partisan—How Raw Politics Tips the Scales in the United States Supreme Court.