Three days after the U.S. Senate acquitted former President Donald Trump of the charge of “incitement of insurrection” in his second impeachment trial, a Democratic congressman filed a lawsuit accusing Trump of violating an anti-Ku Klux Klan law by inciting the Capitol riot on January 6.
Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, sued Trump on Tuesday. The lawsuit claims the former president violated a provision of the Ku Klux Klan Act of 1871, which Congress passed in response to KKK violence. The act prohibits violence or intimidation meant to prevent Congress or other federal officials from carrying out constitutional duties.
“Fortunately, this hasn’t been used very much,” Joseph Sellers, a lawyer who is representing Thompson, along with the NAACP, told the Associated Press. “But what we see here is so unprecedented that it’s really reminiscent of what gave rise to the enactment of this legislation right after the Civil War.”
“The carefully orchestrated series of events that unfolded at the Save America rally and the storming of the Capitol was no accident or coincidence,” the lawsuit alleges. “It was the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”
Although presidents have historically been afforded broad immunity from lawsuits for their actions in the role of commander in chief, the lawsuit takes aim at Trump in his personal capacity. The suit alleges that none of the president’s behavior at issue had to do with his responsibilities as president.
“Inciting a riot, or attempting to interfere with the congressional efforts to ratify the results of the election that are commended by the Constitution, could not conceivably be within the scope of ordinary responsibilities of the president,” Sellers argued. “In this respect, because of his conduct, he is just like any other private citizen.”
Trump may have gone too far in contesting the election, but the claim that his speech at the Ellipse on January 6 “incited” the Capitol riot is both tenuous and dangerous, as the former president’s lawyers argued persuasively during the impeachment trial.
The president did encourage his supporters to “fight like hell,” but the metaphor of “fighting” for a political cause is extremely common in political rhetoric, as Trump’s lawyers demonstrated in a long montage of Democrats urging their supporters to “fight.” Democrats have also engaged in empty grandstanding in trying to block Electoral College votes for Trump and other Republican presidents. As for incitement, Democrats and liberals have urged on aggressive protests that devolved into deadly riots this past summer. Unlike them, Trump explicitly called for his supporters to remain “peaceful” on January 6. By this standard of “incitement,” Democrats would be far more guilty than Trump.
Unlike the impeachment case, Thompson’s lawsuit does not focus on the charge of “incitement” — likely because Thompson and the NAACP lawyers know that Trump’s rhetoric did not rise to the extremely high bar of legal “incitement.” Instead, the lawsuit uses the Ku Klux Klan Act to make a different legal charge.
Naturally, the NAACP and Thompson may have settled on the Ku Klux Klan Act for its evocative name, knowing that they can make hay about the alleged “white supremacy” of the Capitol riot in the media. Yet this act also presents a better legal justification for a lawsuit, since the president did encourage Vice President Mike Pence to unilaterally reject electoral votes from contested states in a last-minute attempt to prevent the certification of Joe Biden’s 2020 election victory.
Conservatives have rightly raised serious concerns about the 2020 election, and those concerns need to be addressed. However, Trump’s lawyers failed to convince the courts to stall the certification of the votes and the states certified Biden’s victory. Last-ditch efforts could not have prevented Biden’s certification.
That said, there is no evidence that Trump intended for the crowd to physically prevent Congress from carrying out its duties. The Ku Klux Klan Act lawsuit may fail for the same reasons an incitement charge would fail — Trump’s Ellipse speech arguably falls under the protection of the First Amendment.
The fact that litigants have not often used the Ku Klux Klan Act in the past means that the legislation does not have a great deal of recent court precedent. The fact that Thompson brought this lawsuit after a failed impeachment effort may also undercut his case, suggesting that the Democrat has reached for a less-used law to reverse the Senate’s acquittal of Trump.
The former president has yet to reply to this lawsuit, but it seems Thompson will face an uphill battle. If he wins this lawsuit, that may also set a chilling precedent for free speech.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.