A Democratic congressman is using a rarely utilized Reconstruction-era law to sue former President Donald Trump over his role in instigating his supporters in the attack on the Capitol early last month.
Rep. Bennie Thompson (D-Mississippi), who is chair of the House Homeland Security Committee, is filing a personal civil suit against the former president over the breach of the Capitol building, which took place while Congress was certifying the results of the Electoral College, which Trump had lost. The lawsuit also names Trump’s personal lawyer, Rudy Giuliani, and two hate groups (the Proud Boys and the Oath Keepers) that were involved in the breach of the Capitol, as co-defendants.
This is the first civil litigation filed against Trump over his involvement in the attack against the Capitol, which came about after he wrongly insisted to his followers for months that the 2020 presidential election was rife with fraud, and held a rally on January 6 as the vote certification was going on, where he urged his loyalists to go to the Capitol itself to express their grievances in person over the election being “stolen” from them.
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Thompson, who is being aided by the NAACP in his civil suit against Trump, is utilizing a little-known federal statute passed in 1871 that was enacted in order to respond to violence from the Ku Klux Klan. The law allows civil litigation to proceed against individuals who use “force, intimidation, or threat[s]” to thwart anyone from upholding the duties of their government offices.
Trump and his allies “acted in concert to spearhead the assault on the Capitol while the angry mob that Defendants Trump and Giuliani incited descended on the Capitol,” the lawsuit alleges.
The suit goes on to say that:
The carefully orchestrated series of events that unfolded at the Save America rally and the storming of the Capitol was no accident or coincidence. 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.
The lawsuit also alleges that Trump was not acting within his official capacity as president when he incited his followers to descend upon the Capitol, but rather was acting in a personal way. Joseph Sellers, a lawyer who is also helping Thompson with the lawsuit, explained that there is no possible way to interpret it differently.
“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 said in an interview about the lawsuit. “In this respect, because of his conduct, he is just like any other private citizen.”
The lawsuit comes just a few days after Trump’s acquittal by the Senate in his impeachment trial over his actions and statements leading up to and on January 6. Thomspon quoted Senate Minority Leader Mitch McConnell in his lawsuit, who encouraged litigation against Trump after voting against indicting him in the Senate impeachment trial.
“We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one,” McConnell said on the Senate floor after the trial’s conclusion.
During that trial, Trump’s lawyers tried to argue that his First Amendment speech rights afforded him the ability to make incendiary statements. Many legal experts, however, have disagreed with that reasoning.
“Trump had a constitutional duty to ‘take care that the laws be faithfully executed,'” Marjorie Cohn, deputy secretary general of the International Association of Democratic Lawyers, said in a recent op-ed she wrote for Truthout. “Instead, he encouraged his toadies to violate the law by preventing Congress from fulfilling its constitutional duty to certify the duly chosen electoral votes. Indeed, the rioters succeeded in stopping and delaying the vote count as they stormed through the Capitol.”
Beyond Thompson’s civil case filed this week, Cohn added, Trump’s actions on that day — including the words he spoke and his failure, for several hours, to demand his followers stop attacking the Capitol — may not shield him from any repercussions he may face in a future criminal case, should one be pursued.
“The First Amendment will not shield Trump from criminal liability in a criminal case either. The evidence is overwhelming — not only to have convicted Trump in the impeachment trial, but also to find him criminally guilty of inciting rebellion or insurrection and other federal and state offenses,” Cohn wrote.
Recent polling on the matter, performed by Quinnipiac University following Trump’s Senate acquittal, shows that most Americans find him at fault for what happened at the Capitol, with 54 percent saying he was responsible for inciting violence and only 43 percent saying he wasn’t responsible. In addition to finding Trump at fault for the violence at the Capitol, 68 percent of respondents in the poll say that they don’t believe the former president did everything he could to stop the breach of the Capitol immediately after it began.