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Richard Primus Suing Trump over the Capitol riot is the best way to hold him accountable

Impeachment didn't work. Criminal charges are a stretch. But lawsuits could succeed.
Trump supporters clash with police and security forces as people try to storm the Capitol on Jan. 6, 2021.
Trump supporters clash with police and security forces as people try to storm the Capitol on Jan. 6.Brent Stirton / Getty Images file

Now that former President Donald Trump’s second impeachment trial is over, attention is shifting to other possible ways of holding him — and others — accountable for the violent attack on the Capitol on Jan. 6. Congress might consider disqualifying Trump from holding future office under Section 3 of the 14th Amendment, which provides that people who engage in insurrection against the United States are barred from federal office, and some are calling for criminal charges to be brought against him.

But Trump and others who instigated or participated in the attack also face another kind of legal exposure: They might be held liable in lawsuits and required to pay monetary damages to people who were injured. These civil cases may offer the best chance of holding Trump accountable.

Unlike impeachment, lawsuits are not dependent on getting two-thirds of the Senate to agree — something that in this case would have required at least 17 Republicans to vote against a president of their own party. Unlike criminal cases, they don’t depend on a prosecutor’s willingness to take the political risks and expend the considerable resources needed to bring charges against a former president.

And unlike a criminal conviction, which would require getting a jury to agree unanimously and beyond a reasonable doubt that Trump broke laws in connection with the riot, a civil judgment only requires convincing a jury (or sometimes just a judge) that Trump “more likely than not” engaged in unlawful behavior.

One of the federal laws under which Trump now faces the prospect of civil liability is an often-neglected statute from 1871 — one that Congress passed precisely to address a problem of organized political violence.

At that time, the Republican Party was the party of Abraham Lincoln and the North. Most white Southerners were Democrats, and the Democratic Party was largely committed to maintaining a society in which the white race was supreme, even though slavery had been officially abolished. So long as only whites could vote in the South, Southern governments would be controlled by Democrats, and the power of local government would be deployed to support white supremacy.

But once African American men won the right to vote, the Democrats’ hold on power was threatened. African Americans overwhelmingly voted Republican. So in Southern states with large Black populations, the combined strength of the small number of white Republicans and a much larger number of newly enfranchised Black Republicans was enough to win elections — and to destabilize the racial order that most white Southerners wanted to maintain.

In a fierce attempt to take back political control, many white Southerners turned to organized violence against African Americans who were potential voters. Black men who registered to vote might be threatened, roughed up or killed — as might the federal officials, white as well as Black, who were supposed to protect the rights of these new voters.

The chief embodiment of this campaign of violence was, of course, an organization called the Ku Klux Klan. At the time, the Klan operated more or less as a paramilitary arm of the Democratic Party, using violence to intimidate Republican Party activists in the South (both Black and white) and to prevent African American men from voting.

The federal government struck back with a law sometimes called the Civil Rights Act of 1871 but often just referred to as the Ku Klux Klan Act. Under the Klan Act, the use of violence to prevent people from voting became a federal crime.

To support the work of federal officials enforcing the Klan Act, the statute also prohibited the use of “force, intimidation or threat” to impede the work of federal officers. And it also created an avenue for civil cases against anyone who conspired to injure federal officers or to prevent federal officers from carrying out their duties. Under the Klan Act, anyone injured by such a conspiracy could sue any of the conspirators for money damages.

On Tuesday, Bennie Thompson, who represents Mississippi’s 2nd District in the U.S. House, filed suit against Trump, Rudy Guiliani, the Proud Boys and the Oath Keepers under the Klan Act. Thompson’s complaint, submitted by the NAACP and the private law firm of Cohen Milstein Sellers and Toll, argues that the defendants did exactly what the Klan Act proscribed: By instigating a riot that would prevent Congress from counting Electoral College votes, they conspired to use force, intimidation or threat to keep federal officers from discharging their duties.

As a result of that conspiracy, Thompson alleges, his own physical safety was threatened, and he suffered emotional distress. Assuming that Thompson can demonstrate that he was harmed as he says, the Klan Act entitles him to recover monetary damages from anyone who conspired to instigate or conduct the riot. Indeed, video presented at the impeachment trial shows many members of Congress facing threats, while the disruption halting the counting of the Electoral Ballots was witnessed around the world.

Thompson’s might be only the first of many Klan Act suits brought against the former president and whoever else was responsible for the violence at the Capitol, which not only led many members of Congress to fear for their lives but resulted in death and serious injuries to Capitol Police officers.

One of the Klan Act’s often-neglected provisions says that anyone who was injured by a conspiracy to impede the work of federal officials can sue for damages — not just the federal officials who were the target of the conspiracy. Every congressional staffer and law enforcement official who was injured is a potential plaintiff.

At a time when American government faces challenges of a kind not seen in generations, it can be useful to reach back for the legal tools that earlier Americans created when faced with serious threats to peaceful governance. History’s greatest threat to peaceful governance in this country was the Civil War — and some of the Jan. 6 rioters carried Confederate flags. The Klan Act is a legacy of that struggle. If it is now used to hold accountable a new cohort of people who use violence to try to subvert elections and democratic governance, it will be doing the job for which it was designed.