The KKK Act of 1871 is Coming for Trump

Joey Ramone lamented when the KKK took his baby away. Donald Trump and his supporters  may lament what the KKK Act of 1871 does to his legacy. Or, at the very least, to his bank account. 

The Act (42 U.S.C. § 1985) was passed by Congress as part of President Ulysses S. Grant’s Reconstruction of the defeated Confederacy. The Civil War ended slavery, but it did not end organized efforts in the South to keep former slaves and their freed counterparts from participating in government. The Act was one of the many federal efforts to combat the ongoing discrimination and violence against African Americans. 

This statute created a federal civil cause of action for any federal official to sue for money damages if he is prevented “from discharging duties” of his office by “force, intimidation or threat.” Probably one of the simplest laws on the books. 

The federal officer and plaintiff in this case is U.S. Rep. Bennie Thompson, a Democrat representing the 2nd District of Mississippi. He alleges that Trump, along with Rudy Guiliani and others, “conspired to prevent” him “from discharging his official duties to approve” the “votes cast by members of the Electoral College”, a clear violation of the KKK Act. While “conspiracy” evokes images of  mobsters in a back room, a “conspiracy” is merely a much more mundane way to say “agreement.” If Trump and Guiliani agreed to attempt to delay the counting of Electoral College votes, they conspired together to do so. 

Sometimes civil cases involving federal statutes are dense and hard to apply. On January 6, 2021, a group of individuals trespassed and vandalized the United States Capitol and delayed Congress from its constitutional duty to count Electoral College votes by force. That is undeniable, we all saw it happen live. To win his lawsuit, Thompson must get a jury to agree that Trump intentionally conspired to make that happen. And Thompson’s lawyers may be able to do just that.

Thompson’s complaint alleges that co-conspirators Trump and Guiliani made many public statements with the specific goal of stopping, or at least delaying, the Electoral College count by force. The 32 page complaint alleges a long litany of such statements made between the election and January 6. Some are certainly more powerful than others. 

A jury, however, could find that Guiliani, in agreement with Trump, exhorted the crowd assembled on January 6 to disrupt the counting of the Electoral College votes when he said “Let’s have a trial by combat” and  “I’ll be darned if they’re going to take our free and fair vote. We’re going to fight to the very end to make sure that doesn’t happen.” 

At the same rally Trump told the crowd: “We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.” He also told them: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” 

There is a reason not a single prosecutor has brought criminal charges against Trump for inciting a riot. And that’s because prosecutors hate losing high profile cases. To get a criminal conviction, a prosecutor would have to convince a jury beyond a reasonable doubt that Trump incited the crowd to immediate violence. That just will not happen.

Because this is a civil action and not a criminal one, Thompson merely has to convince a jury by a preponderance of the evidence that Trump conspired to delay Congress from counting Electoral College votes by “force, intimidation or threat.” Unlike a criminal prosecution, there is no need to convince a jury that violence was part of the plan. The civil burden of proof is much easier to meet than the criminal burden. A jury need only decide it is more likely than not Trump conspired to delay the vote count by threat or intimidation. That could easily happen.

If it does, Thompson is asking for compensatory and punitive damages. Compensatory damages are to compensate a plaintiff for things like medical bills, lost income and pain and suffering. These are not the major concerns for Trump in this case, but punitive damages are. As one might guess from the name, punitive damages are to punish the defendant for his wrongdoing. A jury might decide to punish a former president severely if they find he conspired to intimidate congressmen from performing official duties. 

This lawsuit states a valid civil claim against the former president. Short of an unlikely settlement, this case will go to trial. An impartial jury will likely find Representative Thompson has proven his case. 

Trump’s bank statement could be reading $0.00 soon, if it doesn’t already, due to an act from 1871 that most people don’t even know exists.