Much of the debate about how to hold President Donald Trump accountable for subverting the election and inciting the riot at the Capitol last week centers on removing him from office or ensuring that he never holds office again: Impeachment, the 25th Amendment, even the 14th Amendment have been among the proposed remedies. Criminal prosecution would have to wait until he's gone from the Oval Office, and the Biden administration may not have the appetite for it. But a little-known and even more rarely used civil remedy already exists. It's tucked into the Ku Klux Klan Act.
The Klan Act was devised in 1871 to counter civil unrest during Reconstruction. It could be used now to collect damages from the president and his enablers for the abusive conduct here. Members of Congress, their staffs and even Capitol police officers, among others, may have claims — they can sue for emotional or mental distress or any other injury.
Trump could of course still be subject to criminal prosecution, but the Biden administration, if it goes that route at all, may do so only on narrow grounds, not commensurate with the scope of the conspiracy and all the potential actors, like Rudy Giuliani, who worked for weeks to overturn the election, an effort that resulted in a deadly assault mounted on the Capitol. Discovery in a civil case, when not privileged under the Fifth Amendment, can bring much information to light. And the burden of proof in a civil case is less than what the federal government would have to show in a criminal prosecution.
For what Trump attempted, one provision of the Ku Klux Klan Act seems made to order. Section 1985(1) of Title 42 authorizes damages against anyone — including Trump, Giuliani and others — who conspires to "prevent by force, intimidation or threat any person from accepting any office [or] trust . . . under the United States, or discharging any duties therefor . . ." Any person targeted for assault or intimidation arising from that conspiracy may sue. Even before Trump's infamous phone call to Georgia Secretary of State Brad Raffensperger on Jan. 2, even before inciting the assault on the Capitol on Jan. 6, many people had standing to bring these claims.
In his call to Raffensperger, which lasted more than an hour, the president said, "The people of the country are angry, and there's nothing wrong with saying that you've recalculated." He also said: "All I want to do is this. I just want to find 11,780 votes." But much earlier, Trump was trying to "prevent . . . by intimidation" election officials in Michigan and Pennsylvania, as well as Georgia, from certifying the election results in the first place. By tweet and other means, he unleashed — knowingly — threats against those officials from his supporters, including death threats, without any attempt to discourage them. His attorney Giuliani and others were part of the conspiracy.
It's true that the president has absolute immunity from civil damages arising from his official acts, but as the Supreme Court made clear last July in Trump v. Vance, rejecting Trump's claim of absolute immunity from a New York district attorney's subpoena, there is no such immunity for nonofficial acts. In Nixon v. Fitzgerald, the 1982 case in which the court announced the principle of "absolute" presidential immunity, the court said it covered acts within the "outer perimeter" of the president's office — but presumably not outside of it. In that case, a civilian Air Force employee sued over a firing for which Nixon had taken responsibility — an official presidential act.
Trump's attempts to subvert the 2020 election, up to an assault on Congress, were not even close to official presidential acts, and are either beyond the "outer perimeter" of his office, or just the nonofficial acts of a disgruntled losing candidate. In his opinion in Clinton v. Jones in 1997, Justice John Paul Stevens appeared to qualify this broad language,writing, ". . . we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity" — and the court went on to say that even that immunity, for acts in the president's official capacity, applies only to "acts in the performance of particular functions of his office." Whatever Trump was doing, he was not discharging any "particular functions of his office."
The entire Ku Klux Klan Act was originally intended as a guard against a political coup or rampage by the Klan in South Carolina against newly freed Black Americans and various elected officials. But President Ulysses Grant's administration relied on the so-called Force Acts passed by Congress at the time; under these acts, as the historian Eric Foner wrote in "A Short History of Reconstruction," the federal government did largely succeed by criminal prosecutions and other measures to break the Klan in South Carolina, at least for a time. All the civil provisions in the Klan Act, on the other hand, went largely unused — until discovered and taken up by civil rights lawyers in the 1950s and '60s. Today, suits are common against state and local governments under Section 1983 - for wrongs like police brutality or violations of the First Amendment. Section 1985(3) is also in use, though far less often, largely for race-based conspiracies.
But Trump's attempted coup has now made relevant Section 1985(1) and given rise to a good-size list of those who could sue. They start with the slates of Biden electors whom Trump conspired to "prevent . . . by intimidation" from taking their rightful place in the electoral college, which is an "office [or] trust under the United States." It is true enough that Trump and his lawyers and GOP enablers did not prevent the state election officials from certifying the electors. It is also true that Trump did not directly send anonymous email or online death threats — but the threats that the electors directly received from Trump's supporters were more than just foreseeable by Trump, Giuliani and others. Those threats were occurring every day without Trump letting up at all. Even when state election officials in Georgia begged him to call off his supporters or someone would be killed or shot, he refused to do so.
A second set of plaintiffs include the state election officials who were on the direct receiving end of Trump's intimidation — most notably Raffensperger in Georgia, but also his counterparts in the Michigan and Pennsylvania election offices. It does no good to say Trump was just exercising his First Amendment right to claim fraud — without even an attempt to provide evidence. But a brusque command to overturn the election, coming from the commander in chief, is "intimidation" under the circumstances, and a reasonable person would regard it as such. Intent is an issue of fact. While even cross burning is protected under the First Amendment, the Supreme Court has held it is not protected when there is an intent to intimidate (Virginia v. Black). "Intimidation," which is the word used in Section 1985(1), is distinct from and can be broader than "threat."
The third class of plaintiffs includes the rank and file election workers, especially Black election workers like those in Fulton County, Ga., to whom anonymous Trump supporters made direct threats that here, too, were a foreseeable consequence of Trump's attempt to intimidate state officials into throwing out the state votes.
These election officials hold state, not federal, offices, but Section 1985(1) applies to any "office, trust, or place of confidence under the United States" — that is, anyone performing a federal duty. Conducting a presidential election is such a duty, or "an office or trust" that Article I, section 4 and Article II, section 1 of the Constitution imposes on state officials.
The final class of plaintiffs includes members of the House and Senate, who have become the latest targets in the conspiracy. To enforce federal law, members of Congress rarely have legal standing to sue. Physical assault is different. And the purpose of the rush on the Capitol was to keep them from discharging their duty under the Constitution to certify the election. Even Capitol Police officers injured by the mob set in motion by this conspiracy may have standing to sue.
Section 1985(1) of the Klan Act has been applied in only a handful of cases, all unsuccessful and usually strained — two suits were brought by military officers against their commanders, and the court held that military personnel cannot sue. In another instance, the court dismissed the suit because there was no evidence of a conspiracy.
Even if Trump were to prevail in a lawsuit under Section 1985(1), another provision of the Klan Act would reach him. Section 1986, the next statutory paragraph, allows plaintiffs to sue anyone who has the power to prevent the intimidation proscribed in Section 1985(1) but "neglects or refuses to do so." Trump refused — intentionally — to call off his mob that sent threats to state officials.
These two provisions of the Ku Klux Klan Act may not have been in much use in the Reconstruction period. But after the storming of the Capitol and the raising of a Confederate flag there, they could not be more fitting now. Their hour has come.
Geoghegan is a lawyer and author of "Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement." This piece was written for The Washington Post.