On Saturday, the Senate acquitted Trump. Although 57 Senators voted to convict Trump of inciting an insurrection, it was 10 votes short of the two-thirds majority required. But that isn't the end of the story.
On Tuesday, Congressman Bennie Thompson (D-MS) filed a civil suit against Trump. The complaint alleges that Trump, conspiring with Rudy Giuliani, the Proud Boys, and the Oath Keepers, violated the Ku Klux Klan Act of 1871. That statute provides a civil right of action against individuals who conspire to prevent an "officer from performing duties."
Specifically, Section 1 of the statute allows officeholders to file suit against people who "conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof." The law was passed "in response to KKK violence and intimidation preventing Members of Congress in the South during Reconstruction from carrying out their constitutional duties."
Thompson says a similar kind of violence and intimidation occurred on January 6. The lawsuit, which was filed with the assistance of the NAACP, outlines the alleged conspiracy between Trump, Giuliani, and the two extremist groups.
On and before January 6, 2021, the Defendants Donald J. Trump, Rudolph W. Giuliani, Proud Boys, and Oath Keepers conspired to incite an assembled crowd to march upon and enter the Capitol of the United States for the common purpose of disrupting, by the use of force, intimidation and threat, the approval by Congress of the count of votes cast by members of the Electoral College as required by Article II, Section 1 of the United States Constitution. In doing so, the Defendants each intended to prevent, and ultimately delayed, members of Congress from discharging their duty commanded by the United States Constitution to approve the results of the Electoral College in order to elect the next President and Vice President of the United States.
The lawsuit, which seeks unspecified compensatory and punitive damages, asserts that "insurrection at the Capitol was a direct, intended, and foreseeable result of the
Defendants’ unlawful conspiracy."
The complaint highlights numerous Trump tweets promoting the event, including his tweet from December 10 which warns that "people are upset" and things "are going to escalate dramatically" and get "very dangerous."
The lawsuit also features Trump's tweet on December 19 encouraging people to travel to DC on January 6 for a "wild" protest.
To establish the conspiracy with the Proud Boys, the lawsuit notes that during a presidential debate, Trump urged the group to "stand back, and stand by." The group adopted that command as its unofficial slogan.
Will this lawsuit be successful? It's impossible to say. There have been very few lawsuits filed under this statute but there have also been very few days in American history like January 6.
Trump spokesperson Jason Miller responded to the lawsuit:
President Trump did not plan, produce or organize the Jan. 6 rally on the Ellipse. President Trump did not incite or conspire to incite any violence at the Capitol on Jan. 6.
If this is Trump's defense, he could be in for trouble. First, as detailed above, Trump repeatedly called for people to travel to DC and participate in the events of January 6.
Second, the permits for the rally reveal the organizers included numerous "former Trump campaign staffers." Further, "former campaign and White House staffers were also listed on this paperwork as being on-site staff during the event." For example, Megan Powers was listed "as one of two operations managers for the rally." She was also "the Trump campaign's director of operations" through January 2021, according to her LinkedIn page.
Finally, Trump was the featured speaker at the rally. At the end of his remarks literally directed the crowd to march to the U.S. Capitol and "fight like hell."
Now it is up to Congress to confront this egregious assault on our democracy. After this, we’re going to walk down, and I’ll be there with you… We’re going walk down to the Capitol… We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength...
In response, the crowd began chanting “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol right now.”
An insurrection "deeply rooted in racial injustice"
The lawsuit was filed by a Black Congressman with the support of the NAACP. That's not an accident. "Underlying this insurrection were the actions of folks who were challenging the voices of people of color. If you look at whose votes were being challenged, these came from largely urban areas. The votes of people of color were being challenged," Janette McCarthy Wallace, interim general counsel of the NAACP said.
The lawsuit notes that Giuliani, pushing voter fraud claims on behalf of Trump, repeatedly targeted cities with large African American populations. In Pennsylvania, "Giuliani stated that there had been widespread voter fraud in Philadelphia and Pittsburgh which he claimed accounted for Defendant Trump’s loss in that state. Both cities have large African American populations." In Michigan "Giuliani advocated rejecting the votes cast by voters in Detroit, the population of which is 78 percent African American." In Wisconsin, "Trump’s loss in Wisconsin was attributed to fraud in voting in Milwaukee and Madison, Wisconsin, both of which have large African American populations."
In other words, the intent of the mob that violently attacked the Capitol, which included white supremacists, was to obstruct the counting of votes. But not just any votes. They were attempting to intimidate Congress into nullifying the ballots of black voters.
The legal challenges
Former presidents are immune from civil lawsuits related to their official actions while in office. That is why Trump is being sued in his personal capacity. Thompson argues that in inciting an insurrection, Trump "acted beyond the outer perimeter of his official duties and therefore is susceptible to suit in his personal capacity."
The more difficult issue, law professor Stephen Vladeck explained, "is whether Trump himself can be connected to [the] conspiracy." Will a court view Trump's incitement as enough to trigger liability for conspiracy under the KKK Act? It's hard to say because so few cases have been litigated under the law. But we are about to find out.
The road ahead
Whatever the outcome of Thompson's lawsuit, Trump's legal troubles are just beginning. Fani Willis, the district attorney in Fulton County Georgia, has launched an investigation that could result in criminal charges against Trump. Willis' inquiry will focus on "the pressure campaign on state officials by former President Donald J. Trump as well as the activities of his allies" to overturn the results of the election. At the center of the probe is "Trump’s phone call to Georgia’s secretary of state, Brad Raffensperger, asking him to “find” votes to erase the former president’s loss there."
Trump could also face potential civil litigation from the families of the police officers who died in the riots.