Wednesday Writs: The Ku Klux Klan Act, Oath Keepers, Proud Boys, and Suing Donald Trump

Oath Keepers at a Virginia Rally in 2020. Photo by Anthony Crider, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons

L1: One-hundred and fifty years ago during the era of Reconstruction, a group of racist southerners with grievances over the integration of Black people into free society did their level best to interfere with the government’s efforts to promote civil rights. Their methods included terror, threats, and violence. In 1871 at the behest of President U.S. Grant, Congress passed the third of the Three Enforcement Acts meant to quell the violence occurring in the south. The Third Enforcement Act, also known as the Civil Rights Act of 1871 and the Ku Klux Klan Act, was intended, among other things, to address conspiracies by two or more people to prevent congress and other government officials from doing their jobs by force, threat, intimidation, or property damage.

The Act’s usage helped to crush that iteration of the KKK (thought it would, unfortunately, resurrect itself later) but this part of the statute addressing conspiracies to interfere with government officials discharging their duties was not invoked much after reconstruction¹. It is still on the books, though, and is in the news this week as the crux of the newest lawsuit facing Donald Trump.

The existing version of the KKK Act, in pertinent part:

(1) Preventing officer from performing duties

If two or more persons in any State or Territory 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; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;

A lawsuit filed by the NAACP on behalf of Rep. Bennie Thompson, (D-Mississippi) alleges Trump conspired with Rudy Giuliani, the Proud Boys, and the Oath Keepers to violate the Ku Klux Klan Act. The suit refers of course to the January 6th events at the Capitol, which had the effect of delaying congress from making President Biden’s victory official. The suit alleges that the defendants intended to prevent congress from performing its duties that day, when an unruly mob of mostly Trump supporters swarmed the halls, searching for members of Congress who were hiding from the violent crowd. Trump and Giuliani are accused of inciting the crowd to action, while the Proud Boys and Oath Keepers are accused of spearheading the assault. From the suit:

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 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.

The Ku Klux Klan Act concerns conspiracies to disrupt government process by force, threats, violence or intimidation. As supporting facts, the suit describes Trump’s months of insistence that the election was a fraud and that he had won. His infamous “stand back and stand by” message to the Proud Boys is mentioned as well as various other tweets and statements allegedly meant to egg on his supporters. The suit alleges baldly that in the days leading up to January 6, Trump “repeatedly issued messages to his supporters expressing support for the use of violent means to secure his reelection and stop the process confirming the election of former Vice President Biden.” However, the assertion is not followed up with specific examples.

In describing the events of the 6th, the suit calls out Giuliani’s “trial by combat” line, delivered to the crowd prior to Trump’s speech. (This, coupled with his months of efforts to overturn election results, appear to be the basis of the conspiracy allegations against Giuliani.) One particular part of Trump’s address to the crowd that day stands out in the context of the statute: the part where he tells the crowd to march down to the capitol and show strength and fight like hell (which, of course, they proceeded to do.) Arguably, this is the strongest argument for conspiracy.

While the months of ranting and denial of his election loss was absurd and probably was instrumental in inspiring his supporter’s fervor, conspiracy requires more than general influence. Let’s say I strongly dislike Owen Wilson, and I tend to say so a lot. If my repeated expression of distaste for Owen Wilson is overheard by my friend who then goes and beats Owen Wilson up, was this a conspiracy? No. I’m allowed to dislike Owen Wilson and free to say so however often I please.

But what if, after hearing my Owen Wilson rant, my friend says “yeah, he’s awful. Someone should do something about him,” and though I don’t explicitly express agreement, I dial up my vitriol. “Owen Wilson is terrible and evil and he should never be on TV or in movies ever again!” I say. My friend says, “Someone ought to beat Owen Wilson’s ass!” I don’t say “yeah, hey friend, why don’t you go beat Owen Wilson’s ass?”, but instead I say “Let’s go to Owen’s house right now. If we aren’t strong and fight like hell, Owen Wilson will continue to appear on tv and film!” Then I go home and my friend goes and kicks Owen Wilson’s ass.

This is a bit more than general influence; I knew I was riling my friend up and feeding his or her building desire to commit violence. I didn’t tell him to, though. We didn’t make an agreement. I have some plausible deniability. In fact, my intention was that someone go stand in front of Owen Wilson’s mansion and hold up a sign that says “Owen Wilson, Leave Your Profession, You Suck and Your Nose Looks Like A Butt” (it does, by the way.) How was I to know my friend was going to go beat him up? Sure, that’s what he said, but truthfully, I was busy on Twitter and didn’t hear him. I strongly condemn beating up Owen Wilson, I guess.

You can see what I’m getting at. The allegations against Trump require the adoption of certain conclusions in order to show a conspiracy. Part of his speech quoted in the lawsuit was “We’re going walk down to the Capitol, and we’re going to cheer on our brave Senators, and Congressmen and women.” This is a far cry from the actions the crowd ultimately took, and good evidence on Trump’s part that his intent was merely for the crowd to protest outside the Capitol and make their opinions known.

Will the suit against Trump get past a motion to dismiss? It could go either way, in my opinion. I could see a Court finding that the facts alleged, construed in the light most favorable to the plaintiff, state a claim for which relief could be granted. I would also not be surprised if the Court threw it out early, as to Trump. Giuliani, too, unless there is more; phrases like “trial by combat” and “fight like hell” could easily be interpreted as a metaphor – or not.

As to the Proud Boys and the Oath Keepers, the allegations are much more damning, as is the evidence we’ve already seen. The Oath Keepers came dressed similarly in tactical gear bearing their own insignia. They communicated with earpieces and walkie-talkies; they were seen walking single file in a regimented line up the steps to the building. One can hardly deny they were “two or more individuals” who planned to use force, threats, and intimidation to keep Congress from performing its duties. They did so, at least temporarily. The same can be said for the Proud Boys, who also made plans among themselves for the 6th, wore earpieces and communicated to one another via walkie-talkie.

Also missing from the lawsuit is any allegation of direct communication between Trump or Giuliani with the two defendant organizations. One of the allegations, if true, would suggest such communication had occurred. Beginning with paragraph 73:

By the time the thousands of demonstrators arrived at the Capitol, the Proud Boys had already begun compromising the protections erected by the Capitol Police near the base of the Capitol.
74. As a result, the crowd that arrived passed easily through the outer ring of barriers and was able to confront and ultimately overwhelm an inner array of Capitol Police and barricades established as the last line of defense outside the Capitol building.
75. Having delayed delivering his incendiary remarks to the crowd at the Ellipse in order to afford the Defendant Proud Boys an opportunity to arrive at the Capitol and overcome its initial defenses, Defendant Trump acted in concert with the Proud Boys, allowing them to clear the way for the arriving riotous crowd to descend on, and ultimately enter, the Capitol.

Thompson is alleging that Trump knew the Proud Boys were down at the Capitol removing barriers to entry and intentionally stalled the crowd so that by the time they reached the Capitol, they would be able to breach. The complaint does not offer or describe the evidence of this. A complaint does not have to set forth evidence, but bare-bones assertions without some sort of support can get a lawsuit thrown out, thanks to the heightened pleading standard established in Twombly, a Sherman Act conspiracy case which held that a complaint must contain “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”
All in all, whether this case gets anywhere, particularly as to Trump (or Giuliani,) is questionable; it is less so as to the Proud Boys and Oath Keepers. “Crap rolls downhill” is a maxim that holds true, especially for those in Trump’s vicinity.

L2: Following last year’s killing of Ahmaud Arbery by self-appointed vigilantes, the Georgia legislature is considering repeal of another civil war era law which permitted “citizen’s arrests”. The law was cited by prosecutors who had originally declined to charger Arbery’s killers.

L3: Some companies have offered perks to employees who agree to be vaccinated, but such incentive arrangements may run into some legal problems.

L4: In Nottingham, New Hampshire, water is people, too.

L5: Here’s an opposite day story: IRS insists it owes lawyer $285,000; lawyer tries to make them take the money back.

L6: While court-packing doesn’t seem to be high on the President’s list of priorities, a bipartisan court reform panel is considering other changes, including term limits for Justices.

L7: The lawsuit against Anne Sacoolas, the Diplomat’s wife who hit and killed a British man, Harry Dunn, will proceed, according to a federal judge in Virginia. Dunn’s family brought the wrongful death suit in the US because the American government refused to extradite Sacoolas to the UK to face criminal charges. She was driving on the wrong side of the road when she killed Dunn, and did not call for an ambulance.

1. A separate part of the Act which prohibited the deprivation of rights under color of law is still in widespread and popular use, and is now codified at 42 USC §1983