Most federal sting operations follow a familiar sequence: Undercover agents set up a staged scenario or transaction, make an arrest and document what took place to show a judge.
But reports that Tom Homan, President Trump’s “border czar,” accepted $50,000 in cash from undercover F.B.I. agents in an apparent public corruption investigation that was later closed present a novel twist.
Public corruption experts and former prosecutors who have built cases off similar operations said that if he remains in possession of the money as a top official in the administration, even without criminal charges or a conviction, there would still be few avenues for the government to seek the return of the cash. But the government would have to be willing to use them.
On Tuesday, when asked directly by Senator Sheldon Whitehouse, Democrat of Rhode Island, about Mr. Homan during testimony before the Senate Judiciary Committee, Attorney General Pam Bondi evaded questions. Ms. Bondi declined to say whether Mr. Homan ever received the funds, whether he declared them as taxable income or where the money might be today.
“The investigation of Mr. Homan was subjected to a full review by the F.B.I., agents and D.O.J. prosecutors,” she said. “They found no credible evidence of any wrongdoing.”
Mr. Homan too has ducked questions about whether he accepted the money, which was in a Cava takeout bag, during a recorded exchange last year, as reported by The New York Times and other media organizations. During an interview on Fox News, he said he had done nothing wrong. The public corruption investigation that agents reportedly started against him never developed.
“Look, I did nothing criminal,” he said. “I did nothing illegal.”
A Department of Homeland Security spokeswoman did not respond to questions about whether Mr. Homan accepted the money, still had it in his possession or would be willing to return it to the government.
Justice Department regulations detail strict requirements on how funds in sting operations, sometimes referred to as “buy money,” can be used. By law, such money is considered government property, and department rules demand clear accounting of how much of it was withdrawn from, and returned to, government accounts after an investigation runs its course.
Stefan Cassella, a former federal prosecutor who specialized in asset forfeiture and money laundering and now works as a consultant and expert witness, said the way the operation involving Mr. Homan appeared to have unfolded made it particularly unlikely that any money could be easily retrieved later. While civil forfeiture law generally requires the government to track and recover the same cash it originally delivered to a target, or trace it to a particular asset, the prospect of doing so wanes when cash is not recovered immediately.
“The government can get a seizure warrant and get it back under any number of theories; it could be it was represented to be criminal proceeds, it was government money that he had no right to keep and is therefore stealing government money if he keeps it, whatever,” Mr. Cassella said. “But the problem is, you can’t do that if you don’t know where the money is: What happened to it?”
When sting money is held by its recipient as cash, or spent on another asset such as a car, Mr. Cassella said, the government can more readily sue to recover it later on. But if the money were deposited into a bank account and commingled with other funds or drawn down, it becomes increasingly difficult to establish that the government is seizing the same cash it disbursed.
Funds allocated for undercover operations, also referred to as “confidential funds,” can be used by government agents for varying purposes, including purchasing evidence in a case — such as drugs, stolen property or illegal firearms — as well as buying information. In other situations, large volumes of show money, also referred to “flash rolls,” can be displayed to criminal subjects, but not surrendered, to build credibility.
Jaimie Nawaday, a partner at Seward & Kissel and a former Justice Department lawyer, said there was typically an acceptance that considerable sums of money could be lost as part of the cost of running complex and prolonged investigations. She said in drug operations in particular, it was not uncommon for agents to fail to recover some of the buy money, and the possibility of an investigation ending without charges being filed was also part of the assessment.
“It’s factored into the approval when they put in a request,” she said.
Typically, confidential funds used in undercover operations (sometimes marked bills) are recovered after an arrest and introduced as evidence during prosecution. In instances where people are convicted in criminal cases but spent some or all of the money given to them by undercover agents, judges often weigh ordering them to pay the money back as restitution as well.
The Times has reported that Mr. Homan was recorded on audiotape meeting with agents who were posing as businessmen interested in securing future government contracts related to border security. The Justice Department shut down the investigation after Mr. Trump took office because of concerns about whether it could prove to a jury that Mr. Homan, who was not in government office at the time, had promised to take specific acts in exchange for the money.
Several experts said the fact that agents decided to hand Mr. Homan a sizable sum, $50,000, would ordinarily suggest that they had amassed considerable evidence that they believed he was preparing to provide kickbacks once in a position of authority and were laying a foundation to prove it.
Even with the end of the investigation, they said a future administration could decide to pick the investigation back up or seek to recover the cash. The statute of limitations for bribery or conspiracy to commit bribery is five years, beyond Mr. Trump’s remaining time in office.
But in cases where there is no conviction or even arrest, the Justice Department may be more inclined to write off its losses and let the money go.
The fact that Mr. Homan is now also a senior official in the administration complicates the calculus considerably.
Some experts said the Office of Government Ethics might normally pursue an allegation that a top official could be in possession of tens of thousands of dollars that are government property, even if charges were never brought.
But the chance of that office acting independently of Mr. Trump, who has actively shuttered the Justice Department’s bribery investigations into figures such as Mayor Eric Adams of New York, appears unlikely.
Mr. Cassella noted that the receipt of $50,000 would also be considered taxable income, and that the Internal Revenue Service, under typical circumstances, could be checking to see if it was declared.
Another avenue to pressure a top government official to return F.B.I.-provided money might be via a congressional investigation.
But Republican control of Congress means Mr. Homan would be exceedingly unlikely to face such an inquiry. And minimal accountability in the Trump administration raises the very real possibility that no attempts would be made to recover the money during Mr. Trump’s tenure. Future efforts to specifically recover funds handed over in 2024 may be exceptionally challenging.
“It seems to me that it’s not so much a legal question as a public relations question,” Mr. Cassella said.
“If he bought a nice car, we would go get the car,” he said. “If he spent it on wine, women and song, we don’t want the wine or the women or the song.”
Zach Montague is a Times reporter covering the federal courts, including the legal disputes over the Trump administration’s agenda.
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