"The Secret Lawsuit That Could Finally Hold Trump Accountable for Jan. 6

Former President Donald J. Trump is involved in a lot of lawsuits, some more high-profile than others. In the aftermath of the violence of Jan. 6, 2021, lawyers representing Capitol police officers filed suit against Trump, “Stop the Steal,” the Proud Boys, and the Oath Keepers, among others.

The suit argues that the attack on the Capitol violated the Ku Klux Klan Act and that Trump and others deliberately spread election fraud claims and incited violence against the law-enforcement officers whose job it was to protect them. The civil case, Smith v. Trump, is ongoing and currently in discovery.

Although criminal accountability for Trump’s actions on Jan. 6 has been elusive, civil successes in E. Jean Carroll’s two substantial judgments against Trump have led award-winning investigative reporter Andrea Bernstein to ask whether the civil courts and this anti-Klan law from 1871, offer the former president a path to accountability.

In the fourth installment of “The Law According to Trump,” from Amicus, we turned to Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which represents the plaintiffs in Smith v. Trump. Their conversation has been edited and condensed for clarity.

Andrea Bernstein: The KKK Act was part of a series of enforcement acts passed by Congress to try to defend the gains of the Civil War. This was after the 13^th, 14^th, and 15^th amendments. At that time, the federal government was trying to uphold these amendments, and white-supremacist mobs were trying to do the opposite.

Damon Hewitt: This one was critical because it was designed to address the conspiracies to kill people, the conspiracies to violate people’s rights, the conspiracies to stop democratic processes from continuing. If the Civil War was the war that was fought to decide the issue, the KKK Act was designed to enforce the result of the war.

After Jan. 6, we all know how long it took for the criminal cases against Trump to get going, but it was striking to me how fresh off Jan. 6 the series of lawsuits dusting off this provision from 1871 got underway.

Well, first and foremost, as a technical matter, this is what we call a civil-rights violation. The “big lie” that precipitated the violence on Jan. 6 was a lie about an allegedly stolen election, but the lie was told about people who did exactly nothing wrong. The big lie claimed that votes were stolen in places like Detroit and Philadelphia, Milwaukee and Atlanta. These are, of course, cities with, if not majorities, at the very least large populations of Black and brown voters. There were no allegations of fraud or stolen votes in Iowa and South Dakota and Wyoming. That’s not just a happenstance.

So the violent effort to overturn the legitimate election results was really an effort to essentially silence the votes and the voices of Black and brown Americans. And then the individuals who were on the front lines that day, our clients in the lawsuit Smith v. Trump, are Capitol police officers. Most of them are Black men who had racial epithets hurled at them, in addition to physical violence and other forms of intimidation. Whenever you have a group that is working in concert, loosely or tightly, to violate rights in this way, to stop democratic processes through what we allege was racist intent—that is a conspiracy, and that is a conspiracy to violate civil rights. So there is every reason to leverage this federal law.

People don’t tend to ride around in hoods anymore. The KKK still exists, but many people take the hoods off. They still engage in various other forms of mayhem. That’s what we believe happened on Jan. 6. We can’t look into the heart and soul of every individual, but through our investigation and through our litigation, the people we’ve alleged are engaged in this conspiracy were certainly doing it to violate civil rights.

Do you remember the moment when you first thought about using the KKK statute to hold Trump accountable for Jan. 6?

We had already been involved in a number of lawsuits filed before Jan. 6 concerning instances where people were trying to use state courts to overturn election results. Our client the NAACP sought to intervene in about 15 different lawsuits around the country. Once we saw the violence of Jan. 6, it was very clear to us that these people simply will not stop until they get what they want or until they’re held accountable. They didn’t get what they wanted through the ballot box, they didn’t get what they wanted by trying to manipulate state courts, so now they’re using violence. Using the tools that we know best, which is the law, we need to find a way to address exactly what was going on here.

When we listened to the racialized rhetoric and started hearing, through our investigation, some of the names these officers were called, the racial epithets I won’t repeat, we realized: This isn’t just violence. This is racialized violence. Add to that the fact that there were so many people involved all claiming, even in the subsequent prosecutions, that they were doing this because Trump told them to do it.

What is it like to sue Trump?

It’s a weighty thing we did not do lightly. We’re doing this because of the civil-rights violations, and because we think accountability even after the fact is important. We’re not doing this for any type of partisan reason. Accountability really matters, and we can’t let it be said that on our watch, we sat on our hands. Our clients swore an oath to uphold the law, and they cannot abide by anyone, whether it be other private individuals or the person who at that moment in time was the commander in chief, violating the law for personal gain.

It weighs on us heavily because we understand that the stakes are very high. Because it turns out, after all the twists and turns in the political process and then prosecutions, the civil context, which some people discount, might actually be the path forward for meaningful accountability.

While it took a long time to put the criminal indictments against Trump together, you knew right away, in the aftermath of Jan. 6, that you had to go to civil court. What was the basis for knowing right away that you had to get to civil court?

We consider ourselves private attorneys general enforcing civil rights statutes. We know we don’t have the auspices of prosecutors at the federal, state, or local level. We cannot decide for charges to be brought—that is a strategic decision; quite frankly, sometimes it’s a political decision; and quite often, even in the midst of prosecution, there’s no conviction or sometimes there are pardons, and accountability can feel elusive.

Then there’s the political process. The Jan. 6 insurrection showed—and even more so, the apologists after the insurrection showed—that this nation is more politically divided than ever before.

And so I think of accountability as kind of a three-legged stool. I mentioned a criminal process, I mentioned a political process … We didn’t know it at the time, but we now know that the select committee would basically be it in terms of the political process over Jan. 6. We really understood that that third leg of the accountability stool is civil rights.

We didn’t rush to court. We filed our case in the summer of 2021. We really wrestled over whether this was the right approach—not just the nature of the claim, but just filing a lawsuit that named Trump alongside others.

We took a measured approach and took a few months to decide, even after Trump was out of office, if it was still important because for us it was really about how can we get meaningful accountability. I think civil litigation, the civil-rights litigation in particular, among the three forms of accountability that I mentioned, has actually proved the most durable.

Imagine if none of us had filed these civil or civil-rights lawsuits—we’d all just be watching a political tennis match of the prosecutorial piece pinging back and forth, up and down, from the courts of appeals to the Supreme Court, back to the district court, where Trump’s Jan. 6 prosecution is right now.

What’s frustrating among other things is that Trump’s manipulation of the courts slows down the trail of justice. It slows everything down.

I’m interested in exploring this concept of using civil accountability as a tool when the defendant is Trump. I covered both E. Jean Carroll defamation suits, and when the jury handed down the first verdict, which was the first jury verdict against Trump, there was a real feeling of Oh, wow, the civil system can produce results.

And then, the very next day, Trump defamed E. Jean Carroll again on live TV. Then she had a second suit and she got $83 million, bringing Trump’s total damages to her to $90 million. But he still hasn’t stopped defaming her. In this series, “The Law According to Trump,” we’ve been talking about how Trump sees the rule of law as what he says it is. In that context, can civil lawsuits and findings of civil liability be effective?

Certainly, there will be the rare individual who is so defiant or who has enough resources to try to manipulate the system or just extend the processes. Trump is a person of a certain age, and sometimes I wonder: Is he just trying to appeal up and down court systems until he’s elderly and infirm or deceased from natural causes? Is that his game plan?

His career is that all the way from being sued for civil-rights violations in the 1970s to bankruptcies and so on, he plays the long game. I think about how civil legal processes can feel less effective against somebody like that. But I also think about the alternative, which is for him to just walk away scot-free.

These civil judgments do have an effect. They have an effect on credit worthiness, they have an effect on liquidity, they have an effect on a lot of things. And so when I think about how we have strategically sought to delegitimize and also destabilize some of the organizations like the Proud Boys and Patriot Front, I think we’ve got to keep up this effort on Trump as well. Not because of his politics, but because of his violations of law.