What is the 150-year-old Ku Klux Klan Act that is being used against Trump?
In the wake of the Civil War, the Enforcement Act of 1871 gave presidents the power to suspend the writ of habeas corpus to protect the voting rights of Black Americans, which were under threat from the Ku Klux Klan (KKK) and other white supremacy organizations. Now, one former president stands accused of violating it.
First: the writ of habeas corpus allows people who believe they have been unlawfully detained or imprisoned to have their day in court.
During the Civil War, this right was suspended by President Abraham Lincoln altogether, allowing the military to both take and then release prisoners after the war without holding mass trials.
During the Reconstruction Era, however, it took on new meaning, as the KKK and other white supremacist groups sought to prevent Black Americans from exercising their right to vote. In this case, President Ulysses Grant asked for this power in order to send federal troops to intervene, especially in southern states, and defend the Fourteenth Amendment.
On Tuesday, the NAACP and Mississippi Rep. Bennie Thompson filed the first civil action against former President Trump "solely in his personal capacity," along with Rudolph Giuliani and the Proud Boys and Oath Keepers organizations, for allegedly conspiring to incite the insurrection on the United States Capitol on Jan. 6 to prevent Congress from certifying the 2020 presidential election.
The lawsuit cites a section of the act, also known as the Ku Klux Klan Act or the Third Enforcement Act, that makes it illegal to "conspire to prevent, by force, intimidation, or threat, any person...holding any office, trust, or place of confidence under the United States...from discharging any duties thereof; or to induce by like means any officer of the United States to leave any...place where his duties as an officer are required to be performed, or...to molest, interrupt, hinder, or impede him in the discharge of his official duties."
In addition to seeking compensation for the emotional and physical distress he suffered, Thompson is asking the courts to punish Trump, Giuliani, the Proud Boys and the Oath Keepers for violating "his right to be free from intimidation and threats in discharge of his official duties,” although Thompson is suing in a personal capacity — not as a member of the House of Representatives.
In his case, this means he is not suing on behalf of his constituents, nor may he use resources available to him as a legislator in pursuing the lawsuit, and that any compensation meted by the court would be paid to him.
In the former president’s case, however, being sued in a personal capacity means that he is not protected by the absolute immunity from legal liability granted to the President of the United States for civil damages based on official acts.
“President Trump did not plan, produce or organize the Jan. 6 rally on the Ellipse. President Trump did not incite or conspire to incite any violence at the Capitol on Jan. 6,” Jason Miller, an adviser to Trump, said in a statement reported by The New York Times, adding that Giuliani “is not currently representing President Trump in any legal matters.”
This isn’t the first time the NAACP has cited this act against Trump, the first being in 2020, when the organization sued both the president and the Republican Party for efforts to overturn election results in key battleground states — a case that has not yet been decided.
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