The NAACP suing Donald Trump under the Ku Klux Klan Act. Does it get much better than that?

Actually, it does! Just add in a Black congressman, Rudy Giuliani, Proud Boys, and Oath Keepers, and we have got ourselves a party! Except by "party," I mean federal lawsuit.

Representing Congressman Bennie Thompson, on Tuesday the NAACP filed Thompson v. Trump, suing the former president, his former lawyer, and the two Nazi-adjacent organizations for their parts in the January 6 insurrection and attack on the Capitol. (Side note: Did you know that the Proud Boys have registered as a fucking LLC? Yeah. "Proud Boys International, LLC." And the Oath Keepers are incorporated as a non-profit. So that's ... a real thing.)

Like the NAACP said when it filed the suit,

The coup attempt was a coordinated, months-long attempt to destroy democracy, to block the results of a fair and democratic election, and to disenfranchise millions of ballots that were legally cast by African-American voters.

Remember last weekend, when Mitch McConnell voted to acquit Donald Trump and then gave a long speech about how we should convict Donald Trump? (Have we said "fuck Mitch McConnell" yet today? Fuck Mitch McConnell.) One of McConnell's "points" was, "We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one."

But, as we all know too well, the American legal system works exactly in the way it was intended — to insulate powerful white men from accountability.

Here's our first post-presidency test balloon.


Here's the deal

The Ku Klux Klan Act of 1871, 42 U.S.C. § 1985, is a Reconstruction-era law aimed at allowing federal intervention when southern state and local governments that were literally being run by the Klan orchestrated and/or turned blind eyes to things like civil rights violations and lynchings. After the Civil War, Ulysses S. Grant used it to prosecute klansmen in federal court. Since the end of Reconstruction, it has rarely been used.

Under the KKK Act, people can't

conspire to prevent, by force, intimidation, or threat, any person [...] holding any office, trust, or place of confidence under the United States [...] from discharging any duties thereof; or to induce by like means any officer of the United States to leave any [...] place[] where his duties as an officer are required to be performed, or [...] to molest, interrupt, hinder, or impede him in the discharge of his official duties.

Well all these years later, that seems pretty on-point! As described in the suit,

Enacted as the "Ku Klux Klan Act" in 1871, Section 1985(1) 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.

And the 150-year-old law is actually super relevant at this particular moment in history, since, you know, these assholes just tried to throw a racist coup. After all,

The insurrection was the result of a carefully orchestrated plan by Trump, Giuliani and extremist groups like the Oath Keepers and Proud Boys, all of whom shared a common goal of employing intimidation, harassment and threats to stop the certification of the Electoral College. They succeeded in their plan. After witnessing Capitol police barricading the doors of the House chamber with furniture, Congressman Thompson and fellow lawmakers donned gas masks and were rushed into the Longworth House Office Building where they sheltered with more than 200 other representatives, staffers and family members.

The complaint requests compensatory and punitive damages as well as a court order finding Trump, Giuliani, the Oath Keepers, and the Proud Boys violated the KKK Act and prohibiting them from doing the same thing again. (In December, the NAACP filed a separate suit accusing Trump and the Republican Party of a "coordinated conspiracy to disenfranchise Black voters" with all of their attempts at voter disenfranchisement after the 2020 election.)

Plaintiff Bennie Thompson, Mississippi's sole Democratic member of Congress, was on the House floor when the mob took over the Capitol. He "feared for his physical safety[,] [...] feared for his life[,] and worried that he might never see his family again." He heard rioters "pounding on the door of the House chamber" while he was inside "and saw security guards move furniture to blockade the door."

He then heard the rioters trying to break into the chamber refer to Speaker Pelosi as a "bitch," saying they wanted to get their hands on her[.]

Along with the other members of Congress who were terrorized by the mob, the congressman had to wear a gas mask, hide on the floor, and then escape through a tunnel out of the building. He then had to shelter in place with a few hundred other people, including his shithead colleagues who refuse to wear masks to prevent the spread of a deadly disease.

Congressman Thompson told the NYT:

"I feared for my life," Mr. Thompson said. "Not a day passes that I don't think about this incident. I was committed to seeing justice brought to this situation."

He added: "This is me, and hopefully others, having our day in court to address the atrocities of Jan. 6. I trust the better judgment of the courts because obviously Republican members of the Senate could not do what the evidence overwhelmingly presented."

Representatives Hank Johnson (D-GA) and Bonnie Watson Coleman (D-NJ) plan to join the lawsuit as plaintiffs in the coming weeks.

The quest for accountability

This is the first lawsuit filed against the former president for his role in the January 6 insurrection, but it probably won't be the last. However, the NAACP will face some hurdles in its quest to hold the 45th president accountable.

It's all but certain that all of the defendants will use the First Amendment as a defense for their indefensible actions. Don and Rudy, to be sure, will be like, "We just said WORDS! FREE SPEECH! CANCEL CULTURE! dfsjaklewaio;rweajdfskl fjdsklf. MAGA!"

I'm sure we will hear more about Brandenburg v. Ohio, which Trump's lawyers absolutely butchered at the impeachment trial.

For the record, Brandenburg actually does not say that the president is allowed to incite all the insurrections and stage all the coups he wants. Rather, it specified that, because of the First Amendment, people can't be criminally charged with incitement just for telling people to do illegal things UNLESS what they said was both directed to and likely to get people to break the law. Gee, doesn't that sound like something that recently happened?

Another legal issue that will be interesting to watch is what the court actually has to say about the law the NAACP is suing under. Because the KKK Act doesn't have much modern precedent to rely on, how it ends up being enforced is really anybody's guess.

Like Steve Vladeck told CNN, the KKK Act

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. [...] 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.

Joe Sellers, a partner at Cohen Milstein, the firm the NAACP is partnering with for this case, said "[t]he 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."

Kim Gardner, St. Louis's first Black chief prosecutor, used this statute to sue her own police force for all of its racist bullshit, but her suit was dismissed last fall.

This is going to be an uphill battle for the NAACP but is surely one they are prepared to fight. And if this case is allowed to proceed, the NAACP will get to conduct discovery, take depositions, and really dig into what Trump, Guiliani, the Oath Keepers, and the Proud Boys actually did on January 6 and the roles they played in the failed coup.

NAACP President and CEO Derrick Johnson told the New York Times that the decision to request punitive damages was an intentional decision and "rooted in a history of tools that have worked to fight back against white supremacy."

"The Southern Poverty Law Center filed a lawsuit against the Ku Klux Klan that bankrupted a chapter," he said, referring to a 2008 judgment against a Kentucky-based Klan outfit that ordered the group to pay $2.5 million in damages. "This is very similar. If we do nothing, we can be ensured these groups will continue to spread and grow in their boldness. We must curb the spread of white supremacy."

Godspeed and good luck!

Here's the full complaint:

[ NAACP / Complaint / NYT ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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