Trump Could be Sued for Damages under the Federal Ku Klux Klan Act
Much of the debate about how to hold President Trump accountable for subverting the election and inciting the riot at the Capitol last week centers on removing him from office or ensuring that he never holds office again: Impeachment, the 25th Amendment and even the 14th Amendment have been among the proposed remedies. Criminal prosecution would have to wait until he’s gone from the Oval Office, and the Biden administration may not have the appetite for it. But a little-known and even more rarely used civil remedy already exists. It’s tucked into the Ku Klux Klan Act.
The Klan Act was devised in 1871 to counter civil unrest during Reconstruction. It could be used now to collect damages from the president and his enablers for the abusive conduct here. Members of Congress, their staffs and even Capitol police officers, among others, may have claims — they can sue for emotional or mental distress or any other injury.
Trump could of course still be subject to criminal prosecution, but the Biden administration, if it goes that route at all, may do so only on narrow grounds, not commensurate with the scope of the conspiracy and all the potential actors, like Rudy Giuliani, who worked for weeks to overturn the election, an effort that resulted in a deadly assault mounted on the Capitol. Discovery in a civil case, when not privileged under the Fifth Amendment, can bring much information to light. And the burden of proof in a civil case is less than what the federal government would have to show in a criminal prosecution.
For what Trump attempted, one provision of the Ku Klux Klan Act seems made to order. Section 1985(1) of Title 42 authorizes damages against anyone — including Trump, Giuliani and others — who conspires to “prevent by force, intimidation or threat any person from accepting any office [or] trust … under the United States, or discharging any duties therefor …” Any person targeted for assault or intimidation arising from that conspiracy may sue. Even before Trump’s infamous phone call to Georgia Secretary of State Brad Raffensperger on Jan. 2, even before inciting the assault on the Capitol on Jan. 6, many people had standing to bring these claims.
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The entire Ku Klux Klan Act was originally intended as a guard against a political coup or rampage by the Klan in South Carolina against newly freed Black Americans and various elected officials. But President Ulysses Grant’s administration relied on the so-called Force Acts passed by Congress at the time; under these acts, as the historian Eric Foner wrote in “A Short History of Reconstruction,” the federal government did largely succeed by criminal prosecutions and other measures to break the Klan in South Carolina, at least for a time. All the civil provisions in the Klan Act, on the other hand, went largely unused — until discovered and taken up by civil rights lawyers in the 1950s and ’60s. Today, suits are common against state and local governments under Section 1983 — for wrongs like police brutality or violations of the First Amendment. Section 1985(3) is also in use, though far less often, largely for race-based conspiracies.
But Trump’s attempted coup has now made relevant Section 1985(1) and given rise to a good-size list of those who could sue. They start with the slates of Biden electors whom Trump conspired to “prevent … by intimidation” from taking their rightful place in the electoral college, which is an “office [or] trust under the United States.” It is true enough that Trump and his lawyers and GOP enablers did not prevent the state election officials from certifying the electors. It is also true that Trump did not directly send anonymous email or online death threats — but the threats that the electors directly received from Trump’s supporters were more than just foreseeable by Trump, Giuliani and others. Those threats were occurring every day without Trump letting up at all. Even when state election officials in Georgia begged him to call off his supporters or someone would be killed or shot, he refused to do so.