WASHINGTON (CN) — As the impeachment trial of former President Donald Trump continued his legacy of creating new constitutional issues, questions remain as to how Trump could be held additionally liable for the Jan. 6 riot and what similarly uncharted grounds those claims could enter.
Impeachment is a political trial with political consequences with, at best, Trump’s chances of future office being denied, but what about the financial costs paid by the city of DC, congressional staffers, the family of the dead Capitol Police officers or any other party who could claim harm from the attempted insurrection?
Civil claims of negligence or other money-linked claims could be in the former presidents' near future and how those cases turn out could look wildly different than the ongoing show trial where traditional legal rules don’t apply.
Paul Levy, an attorney with the political watchdog Public Citizen Litigation Group said civil action could be one way to punish Trump.
“The only thing Trump understands is money,” he borrowed from a recent USA Today piece by George Washington University’s Alan B. Morrison which suggested Biden himself should sue Trump for the riot cleanup. But Levy also noted any such trial would run into two legal hurdles: Brandenburg and Claiborne.
Anyone who watched even a portion of the impeachment hearings is now familiar with Brandenburg v. Ohio. Decided in 1969 in the midst of the civil rights movement, Clarence Brandenburg was a Klu Klux Klan leader who spoke out against racial diversity and the government’s supposed efforts to “suppress the white, Caucasian race."
He was convicted under a state criminal syndicalism law originally intended to minimize the spread of communist beliefs which criminalized “unlawful methods of terrorism as a means of accomplishing industrial or political reform."
Brandenburg appealed and made it to the U.S. Supreme Court which reversed the ruling as an overly broad limit on the abstract advocacy of force. They instead narrowed the limit on such speech to that which qualifies as "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
This created a nearly shut window for those who wish to criminalize such speech.
But Trump’s defense could also look to NAACP vs. Claiborne Hardware. This 1982 dispute involved the Mississippi-based civil rights group holding an extended boycott of white-owned businesses. The business owners said they were not only the victims of an economic slight, but a verbal one as well with calls for violence hurled at them.
While the state’s Supreme Court upheld a ruling finding the group and its leader Charles Evers civilly liable for damages from the boycott, speeches and threats, the U.S. Supreme Court unanimously reversed.
“While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity,” wrote Justice John Paul Steven. “For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.”
Levy says these two cases together offer Trump a hefty shield from any civil action, but undoubtedly the facts in the case raise some interesting questions.
Trump as president has a unique platform and control over his audience, and while the president didn’t outright say “go storm the Capitol,” his use of code words may protect him from criminal liability, but not civil where the standard of proof is lower.