Ok, so after helping my wife and kids get onto the ski hill on Christmas, I’m back in our rental condo, listening to podcasts while walking the dog and reading about old English writs that might apply to Trump. Seriously. I’m having the most fun: using English legal history as a strategy to hold the madness of King Donald accountable.
I listened to Rachel Maddow’s podcast “Bag Man” on the rise and fall of Spiro Agnew, and it’s absolutely a must-listen. Spoiler: Agnew resigned in 1973. Second spoiler: he pleaded no contest, served no jail time, and kept his bribes. But I was particularly intrigued in Episode 6 by the interview with George Washington Law Professor John Banzhaf, famous for activist public-interest litigation, and the students from his class (John McMillan, Reina Chassy and Suzanne Saul) who brought a private citizen taxpayer lawsuit against Agnew and two co-conspirators in 1976 (third spoiler…) and won. In 1982, in Agnew v. State, 51 Md.App. 614, 446 A.2d 425, a Maryland appellate court upheld the lower court order for Agnew to repay the state of Maryland about $250,000. (Bonus trivia: Diana Motz was on the brief for Maryland as the assistant attorney general, before she became esteemed and Honorable Judge Motz on the 4th Circuit). Here are two Washington Post stories here and here. If you read that Agnew might get a tax deduction for these repayments, note that he did not get a big state tax refund for these repayments.
The Maddow podcast explains that these student/taxpayers used an old civil proceeding from English law, but understandably doesn’t specify on the podcast. NBC provides sourcing here (but some of it is pay-walled). The available court records and news reports don’t provide such details – perhaps because that old English proceeding was codified into statute. But I have a feeling they are talking about qui tam. Should we start talking about it again?
(Fourth spoiler: Don’t get your hopes up).
[UPDATE: Um, maybe it’s more plausible than I had thought this morning. See update below]
In the context of standing to sue Trump for illegal emoluments, I’ve written a lotabout quo warranto, the old English writ now enshrined in state statutes, that state attorneys general could bring to investigate Trump Organization and LLC frauds – and potentially use this writ/statute to dissolve them. In California, municipalities could bring a quo warranto investigation, and in some states, citizens can.
So, as more evidence of emoluments and bribery comes to light, how about citizens filing a qui tam claim against Trump and family?
“Qui tam” is the shortened form of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “he [a private plaintiff] who sues in this matter for the King as well as for himself.” This writ dates back to 14th century England, and it traveled along in American colonial law in the 17th century. The federal government and states have retained this private cause of action as one kind of “whistleblower” statute against government fraud.
Here’s some more background from the Legal Information Institute:
In a qui tam action, a private party called a relator brings an action on the government’s behalf. The government, not the relator, is considered the real plaintiff. If the government succeeds, the relator receives a share of the award. Also called a popular action.
For example, the federal False Claims Act authorizes qui tam actions against parties who have defrauded the federal government. 31 U.S.C. § 3279 et seq. If successful, a relator in a False Claims Act qui tam action may receive up to 30% of the government’s award.
The percentage is probably closer to 20% on average.
Congress passed the False Claims Act in 1863, during the Civil War because of the fraudulent sales of horses and other goods to the Union Army. It was sometimes called “the Lincoln Law,” which seems to put the cart before the horse (sorry) because the Emancipation Proclamation was that same year. That’s Lincoln Law, even if it wasn’t a statute or the 13th Amendment (yet). The statute was intended to address the problem of government lawyers turning a blind eye to these frauds, and the Republicans in Congress wanted to circumvent those incompetent or corrupt lawyers with activist private citizens, with a cut of the damages as extra incentive.
The use of the law returned in the 1980s in the wake of defense contractor corruption and kickbacks during Reagan’s rapid expansion of Cold War military spending. Since that time, qui tam lawsuits have accounted for the reclaiming of over $27 billion in taxpayer money (and False Claims Act suits have accounted for many billions more). Congress strengthened these provisions again in 2010 under Obama to address health care frauds. Now it turns out the False Claims Act may not be a good fit for the Trump era corruption:
The alleged Trump frauds are not false claims for government expenditures. And here’s another problem in 31 USC 3730: “No court shall have jurisdiction over an action brought under subsection (b) against a Member of Congress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the Government when the action was brought.”
It seems like the state taxpayer suit against Agnew worked because it was Maryland’s statute addressing a state official’s frauds. The question is whether any states have broader qui tam provisions that might apply to a federal official, and even if those states did, they might run into valid Supremacy Clause, preemption, and separate sovereignty arguments.
But at least I wanted to share this research, raise some questions, and highlight the legal challenges.
UPDATE: Professor Banzhaf commented below, confirming it was indeed a qui tam action in Maryland. Based on his comments about how their strategy worked, I did some more digging, and I may have found federal statutory authorization for a qui tam act, beyond the limitations of the False Claims Act.
The All Writs Act of 1789 survives today with this language, 18 USC 1651:
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Many writs were subsequently abolished or narrowed by the Federal Rules of Civil Procedure (full text here) but I can’t find any mention limiting qui tam.
I’m not saying that I know a taxpayer could win a qui tam claim against Trump in federal court. I’m simply suggesting that we can learn from ProfBanzhaf and his students against Agnew, because there are signs that a similar argument might work here.