Congressman Bennie Thompson
Congressman Bennie Thompson speaks during a House Committee on Homeland Security hearing in September 2020 (John McDonnell/The Washington Post via AP, Pool).

Accountability for former President Donald Trump and those around him for the January 6 attack on the Capitol may seem elusive. On Capitol Hill, inquiries may become mired in partisan obstruction. But there’s one forum where partisans can’t dodge and weave, or change the issues, or filibuster—the civil courtroom.

Democratic Congressman Bennie Thompson, of Mississippi, with legal support from the NAACP, is taking to that forum; he has filed a civil suit seeking money damages from former President Trump, former New York Mayor Rudolph Giuliani, and two neo-fascist militias, the Proud Boys and the Oath Keepers, for their roles in the assault on the Capitol.

Thompson is suing under a seldom-used section of the Ku Klux Klan Act. The sweeping civil rights statute was passed in 1871 while the Grant administration was trying to control racial terror in the post-Civil War South. One seldom-used section may offer a clear shot at new evidence, and eventually a trial for those involved, actively or passively, in the attack.

At first glance, the KKK Act may seem like an anachronism in a current lawsuit. But think about the conditions that brought it forward. The Klan was, as Eric Foner says in his comprehensive history, Reconstruction: America’s Unfinished Revolution, 1863-1877, an arm of one political faction in the South. “It aimed to reverse the interlocking changes sweeping over the South during Reconstruction: to destroy the Republican Party’s infrastructure, undermine the Reconstruction state, reestablish control of the black labor force, and restore racial subordination in every aspect of Southern life.”

I’ve seen some Klansmen in my day, and a number of racist politicians. The violent extremists who invaded the Capitol on January 6 are the 21st-century offspring of the original Klansmen. Trump and his circle are the precise analogues of the Southern grandees who relied on Klan terror to make sure that they could not be defeated at the ballot box.

But Thompson’s civil lawsuit may have less to do with Southern terror than with the results of an awkward tax audit in 1972.

The place was Chicago, and the target of the audit was United States Gypsum, Inc. (now USG Corporation, makers of wallboard). When a team of auditors from the Internal Revenue Service arrived at the company headquarters, relations between the IRS case manager and USG leadership deteriorated quickly. The company executives complained to the Chicago IRS office, claiming that the case manager had tried to coerce USG into a settlement of disputed tax claims.

After the complaint, the IRS official, Sherwin Stern, was removed from the USG audit, threatened with demotion, and subjected to a disciplinary investigation. (Court records indicate that he was later cleared.) Stern sued USG, alleging that the managers had cooked up false allegations and submitted them to the IRS.

That was a conspiracy, he said—a conspiracy to prevent a federal official from doing his job. And that conspiracy, he further alleged, violated 42 U.S. 1985(1), a part of the KKK Act that, as far as I can tell, hadn’t been used at all in modern times. That section allows federal lawsuits against any two or more persons who conspire to use “force, intimidation, or threat” to try to prevent such a federal official from carrying out his or her duties. US Gypsum asked the federal courts to dismiss the case; their quarrel with Stern, they pointed out, had nothing to do with race. Just a year earlier, the Supreme Court had held, in a case called Griffin v. Breckinridge, that a different section of the KKK Act (called 1985(3)) was designed only to punish conspiracies against minority groups. That section permits suits against private conspirators who try to deny citizens  “the equal protection of the laws.” That language, the Supreme Court said, requires a plaintiff to prove “invidious discrimination” (such as racism) in a defendant’s motive.

Thus, the high court said, a plaintiff using that “equal protection” section must show “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Well, USG said, surely the same must be true of the “force, intimidation, or threat” section of the Act

However, the Seventh Circuit said, the statute doesn’t have that “equal protection” language. The text concerns conspiracies to intimidate or harm federal officials—conspiracies against the government, in other words. There’s no real constitutional doubt that Congress can create lawsuits to protect the federal government itself.

Because Stern was a federal official, the court decided, he had every right to file suit—if that is, he could prove there was a conspiracy to use illicit means to block his performance of his duties. Unfortunately for him, however, the Seventh Circuit concluded that the actions of the USG executives weren’t such a conspiracy. In fact, they were protected by the First Amendment right to petition the government. The Stern case was dismissed—but the court’s reasoning about 1985(1) remains. Stern v. US Gypsum is the only appellate precedent on the “animus” issue.

So, complaining to the IRS doesn’t violate the Act. But what if political figures conspire with openly violent right-wing paramilitary groups to use force (perhaps lethal force) to block the count of electoral votes? Suppose further that the mob succeeds in suspending the count, requiring members of Congress to shelter in fear for their lives? What if the mob also kills at least one law-enforcement officer? Is that using “force, intimidation or threat” to block members of Congress from “the lawful discharge” of their duties?

The answer, it seems to me, is either “yes” or “#$%& yes!” Thompson, who represents the Mississippi delta region, is Black, and the NAACP is a traditional civil-rights organization. But under Stern, they will not be required to prove that the assault on the Capitol had a racist motive. And Thompson is the chair of the House Committee on Homeland Security, giving his lawsuit a good deal of gravitas regardless of allegations of racism.

Does that really matter? The sights and sounds of January 6—the Confederate colors, the racial slurs, the defacement of memorials to Civil Rights icon John Lewis, use of a noose to threaten Congress—would seem to make racist motivation apparent. But over the past half-century, the Supreme Court, and lower federal courts, have developed a curious myopia about racism. Like Captain Reynaud in the casino in Casablanca, lower federal courts also often somehow miss what is going on around them. The conservative majority in 2018 approved Trump’s “travel ban” order (born as a “Muslim ban”) because it was “facially neutral toward religion.”  In 2013, the Court concluded that racism in Southern voting was a thing of the past.

Luckily, Thompson need only prove a conspiracy among Trump, Giuliani, the Proud Boys, and the Oath Keepers to disrupt the counting. A federal civil conspiracy, the courts have held, has three elements: first, there must be an agreement among the parties to commit an unlawful act. That doesn’t mean a specific plan, or an agreement about what specific acts will be done. Thus, for example, “let’s intimidate and obstruct the U.S. Congress so that it won’t be able to certify the electoral-vote winner” is an agreement. The agreement doesn’t have to be explicit—it can be inferred from things like (say) tweets saying, “Big protest in D.C. on January 6th. Be there, will be wild!” and responses on social media saying things like “Let them remember the day they decided to make war with us” or “We will be standing strong on Jan 6th in DC with you! We are bringing the Calvary, [sic] Mr. President.” And it doesn’t have to include a conspiracy to use violence—“intimidation or threat” (such as, for example, standing outside the Capitol bellowing threats) is all that’s needed.

One or more conspirators committing an “overt act” is enough to complete the conspiracy. Such “overt acts” might include, for instance, spending millions of dollars on advertisements alleging election fraud; paying for transportation to bring participants to a national “Stop the Steal!” rally; telling rally participants to engage in “trial by combat” or to “fight like hell”; or instructing demonstrators to defy a Park Service permit and march on the Capitol. The members of the conspiracy need not intend to perform a specific act; the conspiracy is complete when there is some “meeting of the minds.” And finally, action by some of the conspirators must result in injury to the plaintiff. We can think of some here—such as having to protect the official electoral ballots, having to don a gas mask, being required to stay down in case of gunfire, and having to hustle through the disorder to a secure location.

Civil conspiracy also gets rid of a problem that dogged the House impeachment managers. The Article of Impeachment charged that the riot was “incited by President Trump.” “Incitement” is a very narrow term in American First Amendment law; prosecutors must show that the defendant specifically said, and intended, that people should behave violently and that the potential violence be both likely and “imminent.” As Trump’s lawyers pointed out, Trump didn’t say, “go invade the Capitol.” He did, however, say things like, “And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution” and “We’re going to see whether or not we have great and courageous leaders … If they do the wrong thing, we should never, ever forget that they did.”

Violent? Maybe, maybe not. Intimidation? You bet.

I reached out to Cameron Kistler, counsel for Protect Democracy, which monitors threats to American self-government. Last year, Kistler co-authored (with University of Michigan Law Professor Richard Primus) a major law review article about the KKK Act. I asked him how the Thompson lawsuit fits into the historic function of the Act. He emailed, “The circumstance here—a widespread conspiracy to use force, intimidation, and threats to try to stop federal officers from carrying out their duties under federal law—are exactly the sort of actions that the 42nd Congress meant to put an end to with the Klan Act.”

In addition, he pointed out that, while plaintiffs in a case under the “federal official” section of the KKK Act must prove that defendants were co-conspirators, the same is not true under the Act’s next section, called 1986. That section allows lawsuits against anyone who simply knows of the conspiracy’s existence—if, that is, that person, “having power to prevent” it, “neglects or refuses so to do.”

Is there doubt that Trump and Giuliani knew what the thugs were up to, if not beforehand then while it was going on? No. Did Trump have power to prevent it? Yes. Did he lift a finger to do so? Not so much. He refused pleas to call the rioters off, encouraged them with his tweets, and pressured at least one senator to delay the count further. “I suspect that in the coming year, we’ll see additional Klan Act lawsuits filed under [1986] seeking accountability from those with advanced knowledge of the planning for January 6,” Kistler added.

In a civil case of this sort, discovery can be quite wide-ranging. The defendants may be required to sit for depositions or to produce documents. Third parties can be subpoenaed for testimony or papers. Since the defendants include ordinary citizens, and since some of them have already made statements to law enforcement, blocking their testimony will be hard. Discovery may produce grounds for new plaintiffs to join the suit or bring suits of their own.

Because this is a civil case, there is no need to prove “high crimes or misdemeanors,” as in impeachment, or even guilty “beyond a reasonable doubt,” as in a criminal trial. A preponderance of the evidence is all that Thompson will need.

In that connection, though, it’s worth noting that civil proceedings are not the only danger faced by members of this kind of conspiracy. The criminal section of the Act, 18 U.S.C. 372, provides for criminal prosecution of those who “conspire 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 from discharging any duties thereof.”

Conviction can produce fines—or up to six years in prison.

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.