Robbins: The KKK Act of 1871 and the case against Trump |

Robbins: The KKK Act of 1871 and the case against Trump

Last week, in a legal brief filed by prosecutors at the request of judges on Washington, D.C.’s federal court of appeals, the United States Department of Justice said that former president Donald Trump cannot be shielded from suit by members of the U.S. Capitol Police.

The policemen sued Trump after the January 6, 2021, Capitol riot, alleging in several separate lawsuits that his remarks on the White House Ellipse that morning to a group of his supporters incited the mob to storm the Capitol. While the Justice Department did not take a stance on the validity of those allegations, prosecutors wrote that presidential immunity does not “include incitement of imminent private violence.”

In short, the Justice Department concluded that, in circumstances such as these, a president cannot hide behind a shield of presidential privilege.

While there are acknowledged strong and broad protections for sitting U.S. presidents if they are sued for actions they take as president, if those actions do not fall within the scope of their duties, the brief argued, the gloves are off. A president who steps outside of his or her official duties is not entitled to, and is not afforded, the same protections.

Nearly a year ago, D.C. District Court Judge Amit Mehta ruled that the former president was not immune from lawsuits, writing, “He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building … where those very politicians were at work to certify an election that he had lost.”

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Not surprisingly, Trump appealed and the appellate court is currently considering his case.

Trump’s lawyers have asserted that Supreme Court precedent dictates a president’s complete protection from lawsuits, arguing that Trump’s Jan. 6 speech was political in nature, concerned issues of national importance, and was thus tied to his duties as president.

In last week’s filing, however, prosecutors said “uh-uh.” Under these particular circumstances, the law may warrant an exception. “If the speech, viewed objectively and in context, both encouraged imminent private violence and was likely to produce such violence” presidential immunity may not apply.

Interestingly, at least part of that upon which the Justice Department relied was an Act that dates back more than half the history of our nation, specifically, the Ku Klux Klan Act of 1871.

Also known as the Third Enforcement Act, the Third Ku Klux Klan Act, the Civil Rights Act of 1871, or the Force Act of 1871, is an act of the United States Congress that, on its surface, empowered the president to suspend the writ of habeas corpus to combat the KKK and other terrorist organizations.

A quick aside. A “writ” is a fancy way of saying an order issued by a legal authority with administrative or judicial powers, typically a court. “Habeus corpus” literally means “show me the body.” In the federal system, courts can use a writ of habeas corpus to determine if a state’s detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (for example, an institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful.

As such, among its other provisions, the act suspended normal process.

Designed to eliminate the violence against Black Americans and to protect the rights of those recently freed from slavery, the act allowed the president to “use the armed forces to combat those who conspired to deny equal protection of the laws and to suspend habeas corpus, if necessary, to enforce the act.”

But also tucked into the law, parts of which were later encoded in Title 42 of the U.S. Code, is a provision that allows civil action to be brought against anyone who prevents public officials from carrying out their duties through “force, intimidation or threat.”

You’ll note in the above the word “anyone” — the president included.

What all this hangs upon is if it is determined that Trump was acting in his official presidential duties when he stirred up the crowd to attack the Capitol. If he stepped outside of such duties, as prosecutors contend, then his otherwise presidential protections will not afford him immunity. And, if his immunities do not apply, he may be sued. What the Justice Department said is that in inciting his supporters to interfere with the certification of the election, he exposed himself to the provisions of the act and forfeited what would otherwise have been his presidential immunity. As such, he can be sued by the injured officers.

As with many things regarding this ex-president, all of this is, of course, unprecedented. What is interesting, however — besides where this may all one day fall — is how the law remains alive. Even after 150-plus years, it may stretch its achy joints to embrace the modern world.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.   

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