By invoking the 1871 Ku Klux Klan Act, the federal complaint against former President Donald Trump and his associates implicates far more reaching consequences than civil damages.
WASHINGTON (CN) — No stranger to litigation during four years in office, former President Donald Trump is unlikely to see that trend end in his new civilian life.
On Tuesday, he and Rudy Giuliani, as well as the far-right groups Proud Boys and the Oath Keepers, were sued by the Democratic chairman of the House Homeland Security Committee, Congressman Bennie Thompson, over last month’s insurrection at the U.S. Capitol.
Alleging more than emotional distress or violations of federal anti-racketeering law, however, the Mississippi Democrat rests his claims on the Ku Klux Klan Act of 1871, an obscure statute adopted in the Reconstruction era to protect members of Congress as white supremacists sought to interfere with their duties following the Civil War.
Thompson says Trump conspired with his supporters in the same way to incite a riot that would keep Congress from carrying out the ceremony solidifying his 2020 election defeat to now-President Joe Biden.
More members of Congress will be joining as plaintiffs in the coming weeks, according to the NAACP, which is representing Thompson in the case.
After the Civil War and the assassination of President Abraham Lincoln, the United States was plunged into a period rife with political violence and legal retaliation against slave emancipation. The Southern Black Codes, for example, used a series of state laws to replicate the conditions of slavery by prosecuting people for not keeping a job and making children work on plantations as “apprentices” until they turn 18.
Meanwhile, the Klan was ascendant. From its founding in 1865, the group used violence to keep Black voters from the polls, intimidate members of Congress who either were Black or sympathetic to them, and terrorized Black communities. Their mission: Revolt until the Klan was in political power. With its ranks flush with members of law enforcement and community leaders, the Klan’s level of power already was not insignificant.
In 1870, South Carolina Republican Governor Robert K. Scott wrote a letter to President Ulysses S. Grant that detailed the tumult of domestic terrorism making its way through the South thanks to the Klan.
“Colored men and women have been dragged from their homes at the dead hour of night and most cruelly and brutally scoured, for the sole reason that they dared to exercise their own opinions upon political subjects,” he wrote.
One line from the letter all but calls out to the NAACP for its new case: “I am convinced that an outbreak will occur here on Friday […] the day appointed by law for the counting of ballots.”
It was some years earlier during the impeachment of President Andrew Johnson, Lincoln’s successor, that Ohio Congressman John Bingham began getting death threats from the KKK.
After Bingham and a handful of fellow congressmen approached Grant to request some form of protection, Grant between 1870 and 1871 signed three bills known as the Enforcement Acts to protect formerly enslaved people’s rights to participate in a democracy. The Ku Klux Klan Act was the third Enforcement Act.
The statute itself specifies that “if two or more persons in any state or territory conspire […] to molest, interrupt, hinder, or impede him in the discharge of his official duties … each and every person so offended shall be deemed guilty of a high crime.”
It may be a strong case in the NAACP’s favor, but not against all of the accused.
“The problem of suing Trump is that he was the president,” Indiana University law professor Gerard Magliocca said in a phone interview. “The Supreme Court held that you cannot sue the president for damages for things that he does as president that are official actions.”
Magliocca was referring to the 1982 decision Nixon v. Fitzgerald, in which the Supreme Court ruled that a president is “entitled to absolute immunity from damages liability predicated on his official acts.”
Last year, the court did find that President Trump was not immune from criminal subpoenas, but the NAACP’s lawsuit is a civil case — they’re suing for damages rather than a conviction. Of course, Trump is well practiced from his single term in invoking presidential immunity to defend himself against civil claims.
“What makes this lawsuit unusual is simply that the president is being sued under it,” said Magliocca, referring to the Klan Act. “Normally the people who sue under it are ordinary citizens who’ve had their rights violated by the police or a state or local government official.”
Rudy Giuliani’s liability is also up in the air. The NAACP accuses the former New York City mayor of having spread lies about the election and even phoning members of Congress to insist that they “slow down” the Electoral College vote count, making any involvement limited to his words.
“It’s a little harder against somebody like Giuliani,” Magliocca says. “He spoke [at the Jan. 6 rally] but I don’t know that he did anything else. So you kind of have to rest it all on what he said. It’s a bit harder to find people liable merely for things they said, because of free speech.”
The NAACP may have a stronger case against the Proud Boys and the Oath Keepers, considering their members made credible threats against targeted officials.
Convicting certain members of a hate group is like cutting the head off the proverbial snake; for every individual that goes down, there’s another ready to take his place. Losing money, however, could disrupt the very structure of the organization.
“You can try to bankrupt a hate group by suing them and getting damages from them,” Magliocca says.
The most famous example of this tactic occurred in 1984: After an Alabaman college student Michael Donald was lynched by Klan members, Morris Dees, co-founder of the Southern Poverty Law Center, filed a wrongful death lawsuit against the United Klans of America on behalf of his family. They won the case, and $7 million, in 1987, but the organization couldn’t afford the fine. Instead, they gave the Donalds the deed to its Tuscaloosa headquarters, effectively reducing its infrastructure to rubble.
“Over the years, the courts have interpreted the statute to require a ‘class-based animus’— that is, the conspiracy must aim at individuals because of their race or something like it — national origin or perhaps immigration status,” legal scholar Garrett Epps writes in The Atlantic.
Both the Proud Boys and the Oath Keepers are classified by the Southern Poverty Law Center as extremist groups. Federal prosecutors have already charged members of both groups for conspiracy. Two Proud Boys, Dominic Pezzola and William Pepe, have been accused of working together to prevent law enforcement from protecting Congress at the time. They’ve been charged with 11 counts including conspiracy, assaulting an officer and civil disorder.
Other Proud Boys also posted threats to officials like Speaker of the House Nancy Pelosi and Senator Raphael Warnock on the day of the attack.
Members of the Oath Keepers militia, Sandra Ruth Parker and her husband Bennie Alvin Parker, were also charged for conspiracy, obstructing an official proceeding, and destroying government property.
“They [Proud Boys and Oath Keepers] could be found liable for harms that resulted,” Magliocca says. “People got hurt, property was damaged. There was emotional trauma.”