Despite Donald Trump’s palpable responsibility for the deadly insurrection at the Capitol on Jan. 6, any form of legal accountability has thus far remained elusive. Notwithstanding the powerful case put forth by the House managers, Trump was narrowly acquitted in his second Senate impeachment trial. Criminal charges against the rioters have yet to ensnare their instigator.
But the contours of Trump’s potential civil liability are finally coming into focus. The lawsuits filed by Representatives Eric Swalwell and Bennie Thompson, pleading claims under a Civil War-era statute enacted to counter the rise of the then-nascent KKK, provide one promising pathway to holding the former president accountable. Yet it is a no-frills lawsuit filed March 30 by two Capitol Police officers who stood their ground against the insurrectionists, and paid a heavy physical and psychological toll for doing so, that holds perhaps the greatest promise of making Trump pay for directing the violent mob that stormed the Capitol on his command.
The strength of the suit by Officers James Blassingame and Sidney Hemby is in its time-tested simplicity. Not relying on any act of Congress but merely invoking common-law principles buttressed by Washington, D.C., code provisions prohibiting incitement to riot and provocation of violence, their suit centers on claims that Trump directed, aided, and abetted the garden-variety torts of assault and battery and intentional infliction of emotional distress. These are the kinds of tort claims pleaded every day in courts across the country, tracing their roots to the most foundational precepts of the English common law. The complaint alleges that Trump was guilty of “intentional, wanton and reckless conduct” as he “spurred” a violent crowd “already primed by his months of inflammatory rhetoric” to cause grave damage and injury to property and persons, including the two Capitol Officers.
The jurisdiction invoked by this straightforward complaint harkens back to our country’s earliest law creating federal trial courts: Under the Judiciary Act of 1789, empowering those trial courts to serve as neutral umpires in controversies between citizens of different states, the police officers as citizens of Maryland are suing Trump as a citizen of Florida, thereby creating the requisite “diversity of citizenship.” And, although seeking “punitive damages” sufficient to punish Trump for his tortious conduct and to deter future presidents from engaging in similar behavior, they avoid adorning their complaint with estimates of compensatory damages in the millions or billions of dollars.
The suit’s bare-bones minimalism offers pragmatic benefits. Its claims can be easily understood by a jury of non-lawyers, leaving more of the focus at trial for the damning details of Trump’s conduct and the horror of the bloody riot itself rather than legalistic prolixity. The more complex Swalwell and Thompson suits are also potentially more vulnerable to defensive technicalities, including dubious claims that individual members of Congress, even if personally terrorized, lack the legal “standing” required to sue for harm done to Congress as a whole.
The poetic justice is impossible to miss: In the days leading up to the insurrection, a Twitter follower of Trump’s marching orders screeched online that “Cops don’t have standing if they’re laying on the ground in a pool of their own blood.” In a tragic twist, Blassingame and Hemby did indeed bleed and were beaten to the ground, erasing any possible doubt about their standing to make the claims underlying their lawsuit.
Given their suit’s simplicity and their rock-solid standing, it seems certain to survive any attempts at dismissal or pretrial summary judgment. But it will surely reach the discovery stage, where the officers can have the court compel Trump and his associates to produce documents and testify under oath. What those inquiries reveal will no doubt prove instrumental in making the officers’ case and the other civil suits that may follow. And they will also prove vital to the public as the nation endeavors to piece together exactly what happened at the Capitol and why.
But the suit’s real power lies with the officers’ visceral, gut-wrenching accounts of that harrowing day. The jury will surely be moved by the sheer brutality and terror to which the officers were subjected by being savagely beaten, slammed against stone columns, and crushed against the Capitol doors and walls, just for doing their best to protect the nation’s Capitol and those who do the public’s business. All this while being sprayed with chemicals and peppered with innumerable verbal assaults. Blassingame, for one, was called the n-word so often that he lost count.
At trial, the most significant legal questions are likely to focus on the First Amendment. First, is an incumbent president calling for the decapitation of a coordinate branch of government so he can stay in power despite his loss of the Electoral College entitled to the same protections of free expression as a private citizen calling for violent insurrection from a soapbox in a public park — even if that equation would turn on its head a shield for citizens against the government into a sword for the government against the people? And second, even if the answer to the first question is yes — something that I and other scholars have vigorously refuted — should Trump’s statements escape treatment as the very kinds of “incitement to imminent lawless action” that the Supreme Court, in Brandenburg v. Ohio, held to be unprotected by the First Amendment? In my view, the answer to both questions is emphatically no. Otherwise, the freedom of speech will have become a license for presidents to become dictators.
Facing his most rabid supporters on Jan. 6, Trump spoke in terms of aggression. As the suit details, Trump’s call to action instigated an instant shift toward direct violence in the crowd, which switched from chanting “Fight like hell” and “Fight for Trump” to yelling “Storm the Capitol,” and “Take the Capitol right now.” The “imminent lawless action” of trespass and physical violence against officers like Blassingame and Hemby followed within an hour.
In any event, the Capitol officers bringing this case could amend their complaint without alleging any additional facts by pleading the same federal civil rights statutory claims on which the Thompson suit relies and that the Swalwell suit invokes in two of its nine claims. The federal law I have in mind would make Trump liable for “conspir[ing] to prevent, by force, intimidation, or threat,” the discharge of the officers’ official police duties at the Capitol — and, knowing of that conspiracy’s existence and impact, for “neglect[ing] or refus[ing]” to exercise his “power,” both private and presidential, “to prevent or aid in preventing,” the conspiracy’s harms.
These federal claims, as made by Swalwell and Thompson, implicate no First Amendment speech rights at all. They allege no damage from Trump’s speech as such but invoke it only as constitutionally unprotected evidence that he engaged in conspiratorial action followed by dereliction of duty where discharging that duty could have avoided the harms alleged. But the advantage of not including those federal civil rights claims is clear: simple, like small, can at times be optimal.
Too often, contemporary litigation can be flashy, fancy, and obfuscating. Trump, after all, has spent his entire life filing creative frivolous lawsuits to intimidate his enemies. This lawsuit is anything but. Humble, detailed, and beautifully simple, it exemplifies the equalizing aspirations of American justice — and is likely to produce just that.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University. Follow him on Twitter at @tribelaw.