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How the 1871 Ku Klux Klan Act is being used in this latest Trump lawsuit

Rep. Bennie Thompson, D-Miss., and the NAACP are using the Ku Klux Klan Act of 1871 in a lawsuit against former President Donald Trump and others.
President Donald Trump speaks to supporters from The Ellipse near the White House on Jan. 6, 2021.Brendan Smialowski / AFP - Getty Images file

Rep. Bennie Thompson, D-Miss., and the NAACP are suing former President Donald Trump and his longtime ally Rudy Giuliani for allegedly conspiring with a pair of hate groups to storm the U.S. Capitol and block the Electoral College count in January. And they’re using a 150-year-old law as the basis of the suit.

Thompson and the NAACP, the nation's oldest civil rights organization, allege in the suit, obtained by NBC News, that Trump, Giuliani, the Proud Boys and the Oath Keepers used “intimidation, harassment, and threats,” to stop the vote count and caused the Jan. 6 Capitol riot in the process. This, they said, violated the Ku Klux Klan Act of 1871.

“I guess it tells you something when you can use a Ku Klux Klan law from the 1870s,” said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University. “It’s part of a series of laws enacted after the Civil War. Everything old is, unfortunately, new again."

The statute was first passed following the Civil War to combat KKK violence and allow Black people to take action against hate groups who use “force, intimidation, or threat” to prevent leaders from doing the duties of their office, Levin explained. Particularly, it prohibits people from using violence and conspiracies to keep Congress members from doing their jobs. The law was passed at a time when the KKK was openly, violently terrorizing Black people and Congress members while seeking to block Reconstruction-era reforms for Black people in the South.

"Thompson has standing because they interfered directly with him working to certify the election,” Levin said.

In response to the lawsuit, Jason Miller, a Trump adviser, said the former president “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." He added that Giuliani is not currently representing Trump in any legal matters.

Joseph Sellers, a partner at the civil rights law firm Cohen Milstein Sellers & Toll, the firm representing the plaintiffs, said the "statute is tailor-made to the situation here."

“I’ve been practicing civil rights law for 40 years, the choice to invoke [this act] fit so well with the circumstances that occurred. It's reminiscent of tactics that the Ku Klux Klan engaged in," Sellers said. "This is part of the law in our country, it provides real relief, and it’s exactly the kind of statute needed to address this problem. Part of this suit is intended to focus the public’s attention on the fact that this did cause members of Congress harm. And that harm is compensable under our laws. This suit is the quintessential effort to ensure that the rule of law is followed.”

The 150-year-old law is rarely used

The suit seeks unspecified monetary damages and asks a judge to rule that Trump, Giuliani and the hate groups’ actions violated federal law. Although there’s no evidence of an actual meeting between Trump, Giuliani and the groups, experts say utilizing the law as a civil suit — rather than criminal — is a “good strategy” because the burden of proving a conspiracy was stoked is low.

“Congressman Thompson only has to establish that his contentions are correct more likely than not,” Levin said. “In other words, a slight tip of that scale of justice in his favor is significantly less of a burden relating to the evidence of what one would have to prove in a criminal trial.”

The 1871 statute is rarely used. But, in recent years, more attorneys have turned to the law as a legal strategy for defending people injured by hate groups. A December lawsuit by the NAACP accused Trump of violating the act when allegedly trying to disenfranchise Black voters. Last year, the National Coalition on Black Civic Participation said a pair of men broke the law when attempting to scare thousands of Black people out of voting by mail. The law also served as the basis for a suit filed against the group responsible for the deadly 2017 Charlottesville, Virginia, rally.

The act remained virtually forgotten for about 100 years until the 1980s, when attorney Randolph McLaughlin rediscovered it and used it in a federal civil lawsuit brought by five Black women against the Justice Knights of the Ku Klux Klan. Four of the women were injured when Klansmen drove through a Black neighborhood in Chattanooga, Tennessee, firing shotguns after burning a wooden cross. The fifth was hit by flying glass. Riots broke out as a result, and though the Klansmen were charged, two were acquitted and a third served a brief sentence. In 1982, McLaughlin won an award of $535,000 for the women.

Now, nearly 40 years later, McLaughlin says the act is more valuable than ever.

“This statute was intended to give African Americans and those who supported the freedom efforts a federal cause of action, a right to a lawsuit for the deprivation of rights protected by the statute," said McLaughlin, now a professor at Pace University School of Law and co-chair of the Civil Rights Practice Group at Newman Ferrara, a New York-based litigation firm. "I do believe that this statute is perfectly fitted to deal with the problems that were exhibited on Jan. 6, and before Jan. 6, and will be inflicted on the community after Jan. 6. I’m thrilled that my colleagues at the NAACP have taken this up, because if we don’t do something this will happen again or worse. I think this is a wonderful, wonderful opportunity for lawyers to be creative, get some justice, and shut down neo-fascism.”

Sellers said that Reps. Hank Johnson of Georgia and Bonnie Watson Coleman of New Jersey, among others, are expected to join the suit as plaintiffs. As for Thompson, he told MSNBC he hopes the suit will keep similar riots from happening in the future.

"If the Trump administration's philosophy of engagement like what happened on Jan. 6 becomes the standard, then every election you disagree with, you just go into the Capitol and tear it up," he said. "This is not America, this is not our democracy. “We can't let this kind of riotous activity go on in any form."

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