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Trump Faces First Lawsuit Over Capitol Riots, Alleging Conspiracy to Block Certification of Election Results

The National Law Journal

February 16, 2021

Attorneys with Cohen Milstein and the NAACP allege the Jan. 6 riots were “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.”

Donald Trump is facing his first lawsuit for inciting the violent Jan. 6 riot at the U.S. Capitol, a move that comes days after the Senate failed to reach the votes needed to convict him of insurrection during the former president’s second impeachment trial.

The lawsuit, filed Tuesday in the U.S. District Court for the District of Columbia by a member of Congress, targets Trump and his personal attorney, Rudy Giuliani, as well as the right-wing groups the Proud Boys and the Oath Keepers, members of which were involved in the deadly siege during the congressional process to certify the Electoral College results.

Attorneys with the NAACP and the firm Cohen Milstein Sellers & Toll filed the lawsuit on behalf of Rep. Bennie Thompson, a Democrat from Mississippi and the chairman of the House Homeland Security Committee. It’s the first significant lawsuit targeting Trump in his personal capacity since leaving office, and the first piece of civil litigation stemming from the Capitol riots.

The complaint alleges that Trump, Giuliani and the extremist groups “conspired to prevent, by force, intimidation and threats” Thompson from being able to certify the Electoral College results, in violation of the Ku Klux Klan Act. Other members of Congress, including Democratic Reps. Hank Johnson and Bonnie Watson Coleman, are expected to join the lawsuit in the coming days.

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Joseph Sellers, chairman of Cohen Milstein’s Civil Rights and Employment practice, said in an interview that attorneys and Thompson began working on the lawsuit “well before” the impeachment trial began, but chose not to file until the trial was over so as not to be a distraction.

“Congressman Thompson wanted to do something that would hold accountable the principal architects of the events on Jan. 6 and others leading up to it, and he wanted to seek redress for real harm that he felt he suffered,” Sellers said. “He had very serious worries about his safety.”

The attorney said the litigation is not meant as a redo for the impeachment trial, as it’s based on different legal claims surrounding Trump and the others’ alleged efforts to block the certification of the Electoral College results.

“We certainly cite and describe the various ways in which the president was engaged in conduct that incited a riot and an insurrection. That’s not the basis for our suit,” Sellers said. “The basis of our suit is that the president and the other defendants engaged in a conspiracy with the purpose of interfering with the ability of Congress to discharge its lawful duties to ratify the results of the election.”

Trump and the Department of Justice under his administration repeatedly fought lawsuits personally targeting the then-president, and have successfully staved off or delayed the vast majority of those legal challenges. Tuesday’s lawsuit says that while Trump’s actions took place during his presidency, “Trump acted beyond the outer perimeter of his official duties and therefore is susceptible to suit in his personal capacity.”

Sellers reiterated Tuesday that he believes Trump’s actions fall outside the scope of his official presidential duties, and that the then-president’s apparent belief that he could still win the election also points to his conduct constituting campaign activities.

“We believe that the evidence here of the president’s conduct, which includes inciting a riot, is ultimately part of a plan to urge people to interfere with Congress’s ability to complete ratification of the election and is well outside the scope of any conceivable legitimate duties of a president,” Sellers said. “It’s completely at odds with the Constitution and ought to be a basis on which to exclude it from any conceivable basis for the duties of the president.”

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Sellers said while more Democrats are already seeking to join the lawsuit, Republicans who similarly want to hold Trump accountable would be welcome. In addition to the seven GOP senators who voted in favor of conviction, 10 House Republicans voted last month to impeach Trump.

The 32-page complaint details Trump and Giuliani’s conduct ahead of the riot, as well as that of the rioters, including members of the Oath Keepers and the Proud Boys, during the siege itself. Members of both groups are facing federal charges in relation to the riot, with some facing more serious charges such as conspiracy.

“In furtherance of this conspiracy, Defendants Trump and Giuliani engaged in a concerted campaign to misinform their supporters and the public, encouraging and promoting intimidation and violence in furtherance of their common plan to promote the re-election of Defendant Trump, even after the states had certified election results decisively showing he lost the election, and to disrupt the legally required process before Congress to supervise the counting of the Electoral College ballots and certify the results of that count,” the lawsuit reads.

Read Trump Faces First Lawsuit Over Capitol Riots, Alleging Conspiracy to Block Certification of Election Results.