A $100 million lawsuit brought against the Justice Department by five Proud Boys leaders convicted over the Jan. 6, 2021, Capitol attack faces steep legal odds, but its political cost could be significant.

The Proud Boys claim the government violated their constitutional rights in its prosecution of their efforts to stop the certification of the 2020 presidential election, which culminated in the riot.

It places the Trump administration in an awkward position: defend the sweeping Jan. 6 prosecution or potentially pay out millions to the right-wing leaders convicted of spearheading the attack.

“I would be shocked if there was any fulsome opposition put forth by the government here,” said Jon Lewis, a research fellow at the Program on Extremism at George Washington University. 

The five Proud Boys — Enrique Tarrio, Ethan Nordean, Zachary Rehl, Joe Biggs and Dominic Pezzola — filed the lawsuit Friday in federal court in Florida over their “political prosecution,” which they described as an “egregious and systemic abuse” of the legal system aimed at Trump’s political allies.  

After a months-long trial in 2023, four of the men were found guilty of seditious conspiracy; Pezzola was acquitted of that charge but convicted of other serious felonies. Their sentences were among the highest handed down in connection with the riot, with Tarrio’s 22-year prison term topping them all.  

Trump pardoned Tarrio and commuted the sentences of the other men to time served when he returned to the White House. The president’s proclamation said the clemency, which included pardons of nearly every other Jan. 6 defendant, would “end a grave national injustice that has been perpetrated upon the American people over the last four years.”

Three of the Proud Boys’s legal claims against the government are what’s known as a Bivens claim, which lets individuals sue federal officials in their individual capacity for monetary damages over constitutional rights violations.

Dennis Fan, a former attorney in the Justice Department’s civil division who is now a professor at Columbia Law School, said it’s “essentially impossible” to bring a Bivens claim today. 

“At least in the past decade — two decades, maybe even three decades — the Supreme Court has said that Bivens is all but dead,” Fan said. “So, if this were an ordinary case, you would think of this as, you know, ‘Good luck.’”

But it’s not an ordinary case, he acknowledged, suggesting the Proud Boys likely brought the lawsuit in the hopes that the Trump administration would settle it.  

“I think what they’re hoping for is that somebody has a political thumb on the scales and says, ‘Let’s do these guys a favor because it’s politically expedient.’” 

It wouldn’t be the first settlement linked to Jan. 6.  

Trump’s Justice Department wrote in court filings Friday that a settlement agreement was reached in the wrongful death lawsuit brought by the family of Ashli Babbitt, the Jan. 6 rioter fatally shot by police during the Capitol attack. The conservative legal group Judicial Watch, which represented her family, confirmed the government would pay the family nearly $5 million to settle the suit. 

Rupa Bhattacharyya, former director of the Justice Department’s Torts Branch-Civil Division, said Bivens claims are an “uphill climb these days.” That leaves the Proud Boys’s fourth claim: malicious prosecution under the Federal Tort Claims Act (FTCA).

“If there’s going to be a settlement, it’s probably going to be on that claim,” she said.  

Bhattacharyya said settlements in FTCA cases are paid out of a judgment fund made up of appropriated taxpayer money. Typically, settlements are done in cases where the government faces a risk of liability and can justify using public money to avoid going to trial. 

However, the likelihood of liability here is “really, really low,” she said.  

“I would never have expected a settlement in these circumstances, but I never would have expected a settlement in the Ashli Babbitt case, either,” she said. “It is very difficult to call what the department is going to do right now.” 

Despite the Proud Boys’s uphill battle, the lawsuit carries significant political risk for the Trump administration.

While Trump has deemed Jan. 6 a “day of love” and called the rioters “political prisoners” and “hostages,” that political rhetoric is a far cry from cashing them out. A settlement would mean that “taxpayers are funding political violence,” Lewis said.

It could also open the floodgates for other rioters to seek legal recourse over their prosecutions.  

Trump has pardoned more than 1,500 Jan. 6 defendants and commuted the sentences of 13 extremist group leaders charged in the attack. The Proud Boys leaders are likely the “least sympathetic” of those hundreds of rioters who might sue for damages over their Jan. 6 prosecutions if this lawsuit is successful, Fan noted.  

“If I were somebody at DOJ thinking about settling, I’d be like, ‘If we settle for these guys, then everyone else probably would get money, too,’” he said.

And, it could embolden extremists and justify future acts of political violence, Lewis said.  

“This sends a message to every far-right extremist out there who, when push comes to shove, will be that much more willing to answer the call to arms next time because they know that they have the Department of Justice on their side,” he said.