I have some thoughts on this and how it might work. Of course, I’m speculating; no criteria for eligibility or payout have been set, the five-person “adjudication” panel has not been stood up, and it’s possible the funding will not survive Congressional purse-control oversight. Within that, here I go again.
Payouts, I expect, will be limited to actual loss, with no add-ons related to punitive matters. In many respects, this will be straightforward, but there are a number of areas where losses are not clearly specifiable and/or the alleged losses are highly subjective. These latter include losses from loss of jobs, loss of business revenue, closure of the business. Courts have gotten fairly adept, if widely variable across jurisdictions, in assessing this sort of loss.
Even hazier are things like loss through death of a spouse, loss of the spouse’s income (which is separate from his/her death, even if the income loss resulted from the death), loss of conjugal relations or alienation of affection resulting from divorce or the affair that led to the divorce—and yes, some divorces have occurred as a result of many of the J6 prosecutions and, in the present context, persecutions. Courts make guesses at these losses, but only guesses; they’re not very good at it.
The next, and the overwhelmingly most important, problem, though is this. Given provable or even merely articulable loss that meets fund eligibility criteria to this point, it’s going to be deucedly hard to prove the political targeting, lawfare nature of the cases for which an applicant is seeking recompense. At best, satisfying a court, most likely satisfying the succession of courts, appellate courts, the Supreme Court, with the potential for remands to lower courts for further consideration or for reconsideration, will take years and years to reach a final decision. And that decision may well be that the matter at hand was not, in fact, political targeting, and so no payout is due.
And one more question. Given a final decision, whence the monies for the legal costs of getting to one? Will the Fund pay the government’s legal costs apart from any payout ordered? If not, where will the government’s funding come from?
