Bennie Thompson, a Democrat from Mississippi and chairman of the House Homeland Security Committee: Google

By Glynn Wilson –

A prominent Congressman from Mississippi and the NAACP filed a lawsuit in federal court on Tuesday under a historic law known as the Ku Klux Klan Act charging the 45th president and his lawyer with conspiring to incite the violent Capitol insurrection to prevent the official certification of election results.

The case filed in federal district court in Washington, D.C. by Congressman Bennie Thompson, a Democrat from Mississippi and chairman of the House Homeland Security Committee, and the National Association for the Advancement of Colored People, names Donald Trump and Rudy Giuliani along with right-wing extremist groups the Proud Boys and the Oath Keepers and alleges that they conspired to incite the attack on the Capitol Jan. 6 with the goal of preventing Congress from certifying the Electoral College votes showing Joe Biden as the winner in the presidential election of 2020.

In what is expected to be the first of many criminal and civil cases to be filed against the controversial former president, as noted by Republican Minority Leader Mitch McConnell on Saturday when he said presidents are “not immune” to being held accountable by criminal or civil litigation, the case comes only three days after Trump was acquitted in a mostly party line vote in the U.S. Senate for inciting the violent insurrection, and one day after House Speaker Nanci Pelosi vowed to see the formation of an independent commission to investigate the Capitol insurrection and the interference with the peaceful transfer power.

The KKK Act, passed in 1871 in response to Klan violence and intimidation preventing members of Congress in the Reconstruction era South from carrying out their Constitutional duties, was designed to protect against the kind of lies and conspiracies that fueled the rise of the pro-Trump insurrection and the attempt to steal the 2020 election, according to the arguments from the NAACP, a prominent civil rights group founded in 1909.

“Fortunately, this hasn’t been used very much,” said Joseph Sellers with the Washington law firm of Cohen-Milstein. He filed the suit on Thompson’s behalf, and said what we saw on Jan. 6 “is so unprecedented that it’s really reminiscent of what gave rise to the enactment of this legislation right after the Civil War.”

Thompson, who was there on Jan. 6 and had to wear a gas mask and be rushed to safety in a nearby Congressional office building during the mayhem in which five people died, decried Trump’s “gleeful support of violent white supremacists” that led to a breach of the Capitol “that put my life, and that of my colleagues, in grave danger. It is by the slimmest of luck that the outcome was not deadlier,” he said.

“While the majority of Republicans in the Senate abdicated their responsibility to hold the President accountable, we must hold him accountable for the insurrection that he so blatantly planned,” Thompson said. “Failure to do so will only invite this type of authoritarianism for the anti-democratic forces on the far right that are so intent on destroying our country.”

The lawsuit charts an extensive effort by Trump and Giuliani to undermine the election results, despite state officials and courts rejecting their “false allegations of fraud.” The two men portrayed the election as stolen while Trump “endorsed rather than discouraged” threats of violence from his supporters leading up to the attack on the Capitol.

“The carefully orchestrated series of events that unfolded at the Save America rally and the storming of the Capitol was no accident or coincidence,” it says. “It was the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”

Presidents are typically shielded from the courts for actions carried out in office, according to precedents and other reporting, but this case focuses on Trump in his personal capacity, rather than his official position as president or commander-in-chief. The case seeks unspecified punitive and compensatory damages.

“Inciting a riot, or attempting to interfere with the congressional efforts to ratify the results of the election that are commended by the constitution, could not conceivably be within the scope of ordinary responsibilities of the president,” Sellers said. “In this respect, because of his conduct, he is just like any other private citizen.”

Trump could face an avalanche of lawsuits now that he has lost the legal protections in the White House under U.S. Justice Department policy. Other members of Congress or police officers injured in the riot could sue, for example, a prospect acknowledged by the White House on Tuesday.

Jen Psaki, Biden’s press secretary, told reporters that the president “certainly supports the rights of individuals, members of Congress and otherwise, to take steps through the judicial process…”

“I am not going to speculate on criminal prosecution from the White House podium,” she said. “The president has committed to having an independent Justice Department that will make their own decision about the path forward.”

Of course Trump’s defense attorneys are expected to argue that his speech was protected by the First Amendment and to cite the one disjointed line in his rambling address on the National Mall during the “Stop the Steal” rally in which he mentioned asking his supporters to behave “peacefully,” after a number of instances of telling them to “fight like hell.”

Trump also could face criminal charges for tax evasion and violating campaign finance laws from the District Attorney in the Southern District of New York, and for election tampering by the Attorney General in Georgia.