It has been half a year since the insurrection, and Rep. Karen Bass (CA-37) is following through on her pledge to place responsibility for the Jan. 6 Capitol riot squarely on the head of former President Donald Trump.
In April, 10 Democratic members of Congress joined a lawsuit by the NAACP against Trump, alleging he incited a mob to attack the Capitol. Bass was joined in the lawsuit by House Judiciary Committee Chairman Jerry Nadler (NY), a House prosecutor in Trump’s first impeachment trial; as well as progressive Rep. Pramila Jayapal (Wash.); and three former chairs of the Congressional Black Caucus including California Reps. Barbara Lee (CA-13) and Maxine Waters (CA-43).
“Gaslighting” the American people
“Trump gaslit the American people about the 2020 election results,” Bass said. “He tried to bully public servants to ‘find’ more votes so he could win. He told violent insurrectionists who stormed the People’s House that he ‘loved’ them.”
Nadler has implicated Trump ally Rudy Giuliani in the lawsuit, stating that the former New York City mayor helped to instigate the riot following incendiary language of “election fraud” in the weeks leading up to the incident.
“This violence was anything but spontaneous,” Nadler said. “It was the direct result of a conspiracy to incite riot, instigated by President Trump, Rudolph Giuliani, the Proud Boys and the Oath Keepers.” Giuliani and the two far right hate groups are each included in the lawsuit.
NAACP files lawsuit against Trump
NAACP President Derrick Johnson was joined by Rep. Bennie Thompson (Miss.) in the original filing. Johnson described the actions of the defendants as “treasonous” in noting that the actions on Jan. 6 were the result of a “meticulously organized” coup attempt incited by Trump that subjected members of Congress and law enforcement to physical harm. Other signatories in the lawsuit include Reps. Steve Cohen (Tenn.); Bonnie Watson Coleman (N.J.); Veronica Escobar (Texas); Hank Johnson Jr. (Ga.); and Marcy Kaptur (Ohio).
“For African-Americans, we see a long history of people not being held accountable…and if we don’t hold people accountable, there becomes this entitlement that it’s OK to cause harm and violate the law,” Johnson said.
Briefly, the lawsuit states that Trump violated federal statutes tied to what is commonly referred to as the Ku Klux Klan Act. Passed in 1871 during Reconstruction, the bill was the third in a series of congressional measures attempting to slow the violence against as well as the intimidation of African-Americans at the hands of White hate groups following the Civil War.
The Ku Klux Klan Act
Much of the original law became obsolete, but several parts have become codified as a statute, including 42 U.S.C 1985(1)–the provision listed in the lawsuit. The clause specifically safeguards against conspiracies meant “to prevent, by force, intimidation or threat, any person from accepting or holding any office, trust, or place of confidence under the United States” or “discharging any duties thereof.”
The lawsuit against Trump is specific to a sitting President. Trump did not relinquish the office officially until noon Jan. 20, therefore he must face this particular court case. A private citizen cannot sue the President when he/she is acting on the authority of the office of president. The immunity from suit continues for actions while he/she holds office as president. The fact that he/she may have left office does not change the law in this regard.
The NAACP lawsuit is one of three Trump is now facing for his alleged role in the Jan. 6 attack. Rep. Erick Swalwell (CA-15) has filed his own litigation against Trump and Giuliani for the riot, as well as Donald Trump Jr. and Rep. Mo Brooks (R-Ala.).
White supremacists are arrested
Two Capitol Police officers have also filed suit against Trump. In addition, Giuliani, a member of Trump’s legal team, is facing defamation lawsuits from voting companies Dominion Voting Systems and Smartmatic for allegedly spreading fraud claims involving their machines in a wide ranging attempt to overturn the election results. To date, at least 30 members of the Proud Boys and more than a dozen members of the Oath keepers have been arrested and charged in connection with the Jan. 6 insurrection.
“[The] invasion was a direct result of Donald Trump’s rhetoric and words,” Tennessee Rep. Cohen said. “His calls to gather in Washington on Jan. 6 and his message to ‘be strong’ thwarted the founding of our Constitution.”
Cohen revealed in the lawsuit that he escaped to his office near the Capitol when the mob invaded it. He said he sat there with the lights turned off and a baseball bat in his hand for protection. “I stayed there for about three hours,” he said.
Waters spoke out forcefully against Trump before the House impeachment vote in January, calling him “the worst president in the history of the United States” In the lawsuit, Waters discloses that, following the riot, she increased the number of security personnel who travel with her to and from her California Home.
“Pitting Americans against each other”
Waters has directly blamed Trump for the violence, suggesting that the former President’s strategy was to “pit Americans against each other.” Prior to the lawsuit, Waters said Trump planned to “exercise power long after he was out of office” in arguing that Trump must be impeached a second time because “he is capable of starting a civil war.” Further, Waters suggested Trump had known in advance that people were planning to breach the Capitol—and that he “absolutely initiated it.”
“As a matter of fact, he absolutely should be charged with premeditated murder because of the lives that were lost with [the] invasion, with [the] insurrection,” Waters said.
The legality of suing the President largely falls on the concept of “sovereign immunity.” This legal provision protects governments as a whole from lawsuits unless they explicitly consent to being sued. A similar concept applies to a “sitting president”–while he is serving—but only in certain situations.
Sex, lies and reality TV
Trump has faced a number of civil lawsuits. Stormy Daniels (born Stephanie Clifford) is an adult film actress who allegedly had an affair with Trump in 2006. She was paid $130,000 by Michael Cohen, Trump’s former attorney, to sign a non-disclosure agreement not to speak of the alleged affair. She sued for “declaratory relief,” or asking for a judgment on an (uncertain) legal issue because she claimed Trump never signed the non-disclosure agreement.
Summer Zervos, a former “Apprentice” contestant, also waged a civil lawsuit against Trump for defamation after he called her a liar for claiming he sexually assaulted her in 2007.
It’s actually a 1997 Supreme Court case, Clinton v. Jones, that clarifies the issue of civil suits. Paula Jones, a former state employee in Arkansas, accused President Bill Clinton of sexual harassment. The Supreme Court ruled that any kind of sovereign immunity does not apply to “unofficial conduct,” meaning anything not directly related to his actions as president. Therefore, Trump can be held accountable for civil charges related to him as an individual before he became president, but not civil damages related to his actions as president.
The NAACP lawsuit accuses Trump of criminal behavior. The idea of “legislative standing”–that a member of a legislative body, or the legislative body itself can sue the executive when [it] does something the legislature doesn’t like—has bounced around the federal courts for nearly a century. The claims often fall apart on the precise question of injury (in this case, deaths, injuries and property damage).
Sitting presidents have been sued
Five U.S. Presidents have been sued by members of Congress. President George W. Bush was sued by a dozen members of the House of Representatives in 2003 in an attempt to stop him from launching the Iraq War. Doe v. Bush was later dismissed because Congress had previously passed the Use of Force Against Iraq Resolution.
President Bill Clinton was sued for a similar reason in 1999, after he cited his authority “consistent with the War Powers Resolution” to allow U.S. involvement in NATO air and cruise missile strikes on Yugoslav targets. Campbell v. Clinton was dismissed because of lack of standing in the case.
President George H.W. Bush was sued by 53 House members and one Senator in 1990 amid Iraq’s invasion of Kuwait. The court did not rule on Dellums v. Bush which sought to block Bush from attacking Iraq with getting approval from Congress.
President Ronald Reagan was sued by members of Congress several times over his decisions to use force or approve U.S. involvement in El Salvador, Nicaragua, Grenada and the Persian Gulf. His administration prevailed in each of the cases.
President Jimmy Carter was sued a couple of times by members of Congress who argued that his administration didn’t have the authority to do what it was seeking to do without approval from the House of Representatives. They included the move to turn over the canal zone to Panama and ending a defense treaty with Taiwan. Carter prevailed in both cases.