February 16, 2021

Attorneys at Cohen Milstein and the NAACP are representing a Democratic lawmaker who sued former President Donald Trump and others on Tuesday for allegedly causing the deadly Capitol riot in January and violating the Reconstruction-era Ku Klux Klan Act.

Rep. Bennie Thompson, a Mississippi Democrat who chairs the House Homeland Security Committee, said he expects other lawmakers to join his case against Trump, the ex-president's personal attorney Rudy Giuliani and two far-right extremist groups, the Proud Boys and the Oath Keepers. He said litigation in D.C. federal court was necessary after the Senate acquitted Trump in his second impeachment trial Saturday.

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Senate Minority Leader Mitch McConnell, R-Ky., in a floor speech after the acquittal vote called the former president "practically and morally responsible for provoking the events" of Jan 6. However, he said Trump should face accusations in the courts rather than a post-presidency impeachment trial, which most Republicans called unconstitutional.

"We have a criminal justice system in this country," McConnell said. "We have civil litigation. And former presidents are not immune from being held accountable by either one."

Thompson said his lawsuit aims to do just that, relying on a rarely used provision of an 1871 law meant to protect civil rights and federal officials amid harassment and attacks by the KKK Section 1985(1) of Title 42 creates civil liability for conspiracies to interfere with federal officials carrying out their duties.

"The congressman is intending to show that no one is above the law," Cohen Milstein Sellers & Toll PLLC executive committee chair Joseph M. Sellers told Law360. "It is quite clear that these four defendants all took steps with the common purpose of interfering with the ability of Congress to ratify the election."

The veteran civil rights attorney said that under D.C. Circuit precedent, a conspiracy does not require showing communication among the defendants but simply proving they "have taken one or more actions in the pursuit of a common plan or purpose."

The complaint alleged a "carefully orchestrated" and "unified plan to prevent the counting of Electoral College votes." It said combative rhetoric by Trump and Giuliani, combined with a campaign of unproven and discredited claims about massive election fraud, had a "natural, foreseeable and intended consequence."

The lawsuit also described how Thompson listened to rioters pounding on the House chamber's doors as he lay on the floor and heard a gunshot.

"Thompson feared for his life and worried he might never see his family again," the complaint said, seeking to establish an injury that gives him standing to sue. He requested a jury trial, an injunction, and compensatory and punitive damages.

Sellers said he regularly deals with other provisions in Section 1985 but had never thought much about its rarely invoked first paragraph until Thompson and the NAACP sought a legal framework for their case. He said it rarely had been raised after some litigation in the late 1800s.

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That argument comes after Trump tweeted Dec. 19, "Big protest in D.C. on January 6th. Be there, will be wild!" On Jan. 6, Trump and Giuliani addressed the crowd on the Ellipse in front of the White House shortly before rioters stormed the Capitol. Democrats and some Republicans said Trump's inflammatory rhetoric amounted to inciting an insurrection.

Thompson is represented by Janette Louard and Anthony P. Ashton of the NAACP and Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC.

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