On February 16, 2021, Cohen Milstein, in partnership with the NAACP, filed a lawsuit in the United States District Court for the District of Columbia, on behalf of the Honorable Bennie G. Thompson, Member of the United States House of Representatives, against Donald J. Trump, in his personal capacity, the Oath Keepers, and Proud Boys, for conspiring to prevent him and other members of Congress from discharging their official duties on January 6, 2021, including their official duty commanded by the United States Constitution to approve the counted results of the Electoral College in order to elect the next President and Vice President of the United States.
On April 7, 2021, ten (10) other members of the United States House of Representatives joined Hon. Bennie Thompson’s lawsuit against the defendants asserting the same claims. These congressmen and congresswomen are: Hon. Karen R. Bass, Hon. Stephen I. Cohen, Hon. Veronica Escobar, Hon. Pramila Jayapal, Hon. Henry C. Johnson, Jr., Hon. Marcia C. Kaptur, Hon. Barbara J. Lee, Hon. Jerrold Nadler, Hon. Maxine Waters, and Hon. Bonnie M. Watson Coleman. Following the dissolution of the Proud Boys organization in February, the lawsuit also names as defendants the Warboys, which operated in conjunction with the Proud Boys, and Enrique Tarrio, the leader of both the Warboys and the Proud Boys.
Plaintiffs bring this lawsuit under the “Ku Klux Klan Act” of 1871 (42 U.S.C. § 1985 (1)). The Ku Klux Klan Act was intended to protect against conspiracies, through violence and intimidation, that sought to prevent members of Congress from discharging their official duties. The statute was enacted in response to violence and intimidation in which the Ku Klux Klan and other organizations were engaged during that time period.
Important Dates and Rulings
- On February 20, 2022, the Honorable Amit Mehta of the United States District Court for the District of Columbia dismissed the majority of defendants’ motions to dismiss in Thompson, et al. v. Trump, et al. (D.D.C.), allowing plaintiffs lawsuit against Donald J. Trump, in his personal capacity, the Oath Keepers, Proud Boys, and others involved in the January 6, 2021 insurrection against Congress, to move forward.
- On September 23, 2022, Cohen Milstein and co-counsel NAACP filed a brief in the United States Court of Appeals for the District of Columbia Circuit, responding to an appeal by Defendant Donald J. Trump, in which Trump argued he is immune from suit for his involvement in the January 6 insurrection. The brief filed by Cohen Milstein and NAACP defends the decision of the district court, which correctly concluded that Trump is not entitled to immunity. The D.C. Circuit heard oral arguments on December 7, 2022.
- On March 2, 2023, the United States Department of Justice weighed in on the appellate argument of whether or not the former president has absolute immunity from suit for his Jan. 6, 2021 rally speech, recommending that the D.C. Circuit hold “that a President’s speech on a matter of public concern is not protected by absolute immunity if it constitutes incitement to imminent private violence."
- On November 30, 2023, the U.S. Court of Appeals for the District of Columbia Circuit granted appellees' unopposed motion to change the caption of the case to Barbara J. Lee, et al., v. Donald J. Trump, et al.
- On December 1, 2023,the U.S. Court of Appeals for the District of Columbia Circuit decided that President Trump is not entitled to official-act immunity for his actions leading up to and on January 6 as alleged in the complaint, since he was acting as office-seeker, not office-holder. The Court did acknowledge that in the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate.
On January 6, 2021, the United States Capitol was stormed and breached by a mob of thousands of supporters of President Donald Trump in a violent attempt to disrupt the joint session of the United States Congress assembled to count the votes of the Electoral College to formalize the election of the 46th President of United States, and, in effect, overturn the results of the 2020 United States presidential election. As a result of the violent breach, members of Congress and staff hid in fear of their lives. More than 140 people were injured in the storming of the Capitol, and five people died during or shortly after it.
Plaintiffs claim that on or before January 6, 2021, the Defendants Donald J. Trump, Rudolph W. Giuliani, Oath Keepers, Proud Boys, and Warboys conspired to incite an assembled crowd at the "Save America" rally at the Ellipse in Washington, D.C. 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.
Plaintiffs further claim that this conduct jointly undertaken to threaten their individual persons and other members of Congress in order to disrupt the Electoral College vote count was part of an ongoing course of action pursued by the defendants for the purpose of contesting the announced results of the presidential election held in November 2020 and preventing the duly elected president and vice president from attaining approval of Congress of their election necessary to their inauguration.
In effect, plaintiffs claim, the insurrection at the Capitol was a direct, intended, and foreseeable result of the defendants’ unlawful conspiracy. It was instigated according to a common plan that the defendants pursued since the election held in November 2020, culminating in the assembly denominated as the “Save America” rally held at the Ellipse on January 6, 2021, during which defendants Trump and Giuliani incited the crowd of thousands to descend upon the Capitol in order to prevent or delay through the use of force the counting of Electoral College votes. As part of this unified plan to prevent the counting of Electoral College votes, defendants Oath Keepers, Proud Boys, and War Boys, through their leadership, 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 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.
Accordingly, plaintiffs seek the award of compensatory damages to redress the harm to plaintiff caused by the defendants’ use of intimidation, harassment and threats of violence to interfere with the plaintiffs’ discharge of their legally required duty as members of Congress, and punitive damages to punish the defendants for reckless and malicious manner in which they acted and to enjoin and deter a recurrence of this unlawful act.
The case was originally named Thompson, et al. v. Trump, et al., Case No. 1:21-cv-00400-APM, United States District Court for the District of Columbia
As of November 30, 2023, the name of the case is Barbara J. Lee, et al., v. Donald J. Trump, et al., Case No. 1:21-cv-00400-APM, United States District Court for the District of Columbia