Former President Donald Trump and attorney Rudy Giuliani are being accused of conspiring with the far-right groups Proud Boys and Oath Keepers to incite the January 6 insurrection in a civil lawsuit filed Tuesday in federal court by the Democratic chairman of the House Homeland Security Committee that cites a post-Civil War law designed to combat violence and intimidation by the Ku Klux Klan.
The lawsuit, filed by Mississippi Democratic Rep. Bennie Thompson in his personal capacity, is the first civil action filed against the former President related to the attack at the US Capitol and comes days after the Senate acquitted Trump in his impeachment trial.
If it proceeds, it would mean the former President and others would be subject to discovery and depositions, potentially exposing details and evidence that weren't released during the Senate impeachment trial.
Thompson points to Trump's words and tweets in the months leading up to the insurrection to accuse Trump and Giuliani of mobilizing and preparing their supporters for an attack to prevent Congress from certifying the 2020 election results on January 6.
The lawsuit cites a scarcely used federal statute passed after the Civil War that was intended to combat violence from the Ku Klux Klan; it allows civil actions to be brought against people who use "force, intimidation, or threat" to prevent anyone from upholding the duties of their office.
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The legal underpinnings of the lawsuit could face an uphill battle in court, since the KKK statute has not been widely used.
"It was specifically meant to provide federal civil remedies for federal officers who were prevented from performing their duties by two or more individuals, whether federal marshals in the post-Civil War South, federal judges in un-reconstructed lower courts; or federal legislators," University of Texas Law professor and Supreme Court analyst Stephen Vladeck explained.
"It's not at all hard to see how that provision maps onto what happened on January 6 -- where, quite obviously, two or more people conspired to prevent the Joint Session of Congress from performing its constitutional function of certifying President Biden's Electoral College victory. The harder question is whether Trump himself can be connected to that conspiracy," Vladeck said.
Attorney Joseph Sellers, who is representing Thompson, said that the specific purpose of the statute was to provide a remedy against efforts to interfere with Congress' duties.
"The fact that there's very little precedent [involving this section of the statute] is a reflection of how extraordinary the events were that give rise to this lawsuit," Sellers said.
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