The chairman of the House Homeland Security Committee on Tuesday filed a federal lawsuit accusing former president Donald Trump, lawyer Rudolph W. Giuliani and two extremist groups whose members have been charged in the Jan. 6 storming of the Capitol of illegally conspiring to intimidate and block Congress’s certification of the 2020 election.
Rep. Bennie Thompson (D-Miss.) alleged in federal court in Washington that Trump’s and Giuliani’s false claims that the election was stolen fomented a raid that violated the Ku Klux Klan Act, an 1871 law enacted after the Civil War to bar violent interference in Congress’s constitutional duties.
The lawsuit alleges that Trump, Giuliani, and members of the Oath Keepers and Proud Boys far-right groups sought to harass and impede lawmakers, and temporarily succeeded, forcing Thompson and others to don gas masks and take cover on the House gallery floor before being evacuated to shelter in the Longworth House Office Building with more than 200 other representatives, staffers and relatives.
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Rep. Hank Johnson (D-Ga.), chairman of the House Judiciary subcommittee on courts, and Rep. Bonnie Watson Coleman (D-N.J.), chairwoman of the Homeland Security subcommittee on transportation, expect to join the suit, said Thompson, who is being represented by the NAACP and Cohen Milstein Sellers & Toll.
“Donald Trump has tried to destroy the nation, and we will not let him get away with it,” NAACP President Derrick Johnson said.
The lawsuit tests rarely litigated and long-unvisited areas of law.
The 1871 law was requested and signed during Reconstruction by President Ulysses S. Grant, who invoked it that October to suppress violence in the South, including in nine South Carolina counties in rebellion. The law helped break the power of the Klan and other groups terrorizing Black voters, and marauding lawmakers elected to Congress from readmitted former Confederate states, but it has not been used as Tuesday’s lawsuit contemplates in modern times.
The Supreme Court also has ruled that presidents enjoy absolute immunity for actions undertaken in their official capacity, a term that courts have interpreted generously.
Thompson’s attorneys argue that directing an assault on a coequal branch of government in no way qualifies as protecting and defending the U.S. Constitution. Even if Trump were generously considered to be “electioneering,” politicking is a political function, not a presidential one, they said.
Likewise, whether a court someday decides that Trump incited violence or engaged in First Amendment-protected political speech, the question is not whether his remarks were lawful, attorney Joseph M. Sellers said, but “whether he conspired with others to seek to prevent Congress from completing the ratification of the electoral process, and inciting a riot to take over the Capitol was a means to that end.”
“This lawsuit is very simple. It relies on this protection which every member of Congress is entitled to, that they be free of threats of violence and intimidation and free that day to certify results of the election of President Biden and Vice President Harris,” Sellers said.
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