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Can House Democrats Bennie Thompson of Mississippi and Eric Swalwell of California bring Donald Trump at long last to justice? They think they’ve found a way, based on an 1871 statute originally enacted to stop the Ku Klux Klan from harassing newly freed African Americans.
Even if Trump manages to dodge both lawsuits, his legal troubles will be far from over.
Thompson and Swalwell participated in the joint session of Congress that convened on January 6 to certify Joe Biden’s electoral victory, only to have their lives put in danger by the violent insurrection staged by Trump supporters at the U.S. Capitol. In separate federal lawsuits filed in the District of Columbia, the two Democrats allege that Trump conspired to incite the insurrection as part of a well-orchestrated plot to overturn the election results and stop the peaceful transfer of power to a new administration.
Thompson, whose case was filed in February, names Rudy Giuliani and the neo-fascist Proud Boys and Oath Keepers organizations as Trump’s co-conspirators. Swalwell, whose suit was filed in early March, omits the Proud Boys and the Oath Keepers, but also names Giuliani, along with Republican Representative Mo Brooks of Alabama and Donald Trump Jr., as defendants.
Although Swalwell’s complaint is more detailed, both lawsuits contend the plot to subvert the election began during the presidential campaign and culminated in the insurrection. Both cases rely on a rarely invoked provision of the Ku Klux Klan Act of 1871, which passed in the aftermath of the Civil War. The statute has remained on the books and is now codified as section 1985(1) of title 42 of the United States Code.
Designed to prevent attacks on civil rights, the section authorizes lawsuits for money damages to be brought whenever “two or more persons conspire to prevent” public officials from discharging their duties.
Swalwell’s complaint also cites another provision of the 1871 Act that authorizes lawsuits against anyone who knows about civil-rights conspiracies and has the power to stop them, but neglects to do so. And the complaint includes counts against Trump under District of Columbia law for incitement to riot, negligence, and infliction of emotional distress.
Only time will tell whether either or both lawsuits will succeed. Legal experts who have reviewed the cases thus far have returned mixed reviews.
In a March 9 interview on MSNBC with Lawrence O’Donnell, Harvard Law School professor Lawrence Tribe, one of Trump’s most prominent critics, praised Swalwell’s lawsuit and predicted that it will survive a motion to dismiss and make its way to trial.
“The case is quite invulnerable to any legal challenge,” Tribe said. “Its factual allegations are very specific” and the case “will provide an important way for accountability to take place.”
But in an interview with Newsmax, former Harvard Law professor Alan Dershowitz likened the case to “suing God for writing the Bible.” Dershowitz, who abandoned his liberal past to become one of Trump’s chief apologists, termed the lawsuit “a political stunt, the implications of which are mind-boggling” for attempting to hold the ex-president liable simply for stating his views about the election.
Taking a middle position, Jessica Levinson, a professor at Loyola Law School in Los Angeles, said in an interview with Reuters that Swalwell’s lawsuit was “not a slam dunk” but might require Trump to sit for a deposition.
“As with so many suits against Trump, the name of the game may be to keep the suit going long enough to take depositions and obtain discovery,” Levinson said.
Even if Trump manages to dodge both lawsuits, his legal troubles will be far from over.
According to the Just Security online forum, which tracks pending litigation against Trump, at least thirteen legal proceedings, including Swalwell’s and Thompson’s, have been opened against the disgraced forty-fifth President. They involve both civil lawsuits and criminal investigations.
On the civil side, the most prominent actions are the defamation cases filed by alleged sexual assault victims E. Jean Carroll and Summer Zervos; the fraud complaint filed by Mary Trump, the ex-president’s niece; and the investigation initiated by New York Attorney General Letitia James into Trump’s business practices.
The pending criminal investigations include the longstanding grand-jury probe led by Manhattan District Attorney Cyrus Vance Jr. focused on tax, banking, and insurance fraud; the investigation opened by the Attorney General of the District of Columbia into Trump’s role in the January 6 insurrection; and the inquiry launched by the District Attorney of Fulton County, Georgia, into Trump’s attempt to interfere in the 2020 election.
In the meantime, Trump remains a free man. Holed up in Mar-a-Lago, he has beaten two impeachment trials and shows no signs of admitting guilt or taking responsibility for the events of January 6 or any other act of malfeasance.
Still, there is reason to be optimistic that, sooner rather than later, the rule of law will prevail.
Vance’s investigation in particular appears to have entered a critical phase due to an order issued by the Supreme Court last month that cleared the way for the Manhattan DA to obtain a trove of financial documents, including tax returns, from Trump’s accounting firm. It would not be at all surprising to see an indictment handed down in the coming months, before New York’s general five-year statute of limitations expires on any potential offenses.
Nor would it be surprising, as Professor Tribe remarked on MSNBC, to see other members of Congress or law enforcement personnel injured in the insurrection suing Trump for damages, modeling their cases after the complaints filed by Swalwell and Thompson.
The bottom line is that it is far too early to give up on the fight to bring Trump to justice. When democracy itself is on the line, as it is in much of the Trump litigation, giving up is never an option.