As reported previously, the proper place to bring charges against Donald Trump for incitement is a court of law, not the Senate. Senate Republican Minority Leader Mitch McConnell agrees that this is the case. After Trump was acquitted of impeachment, McConnell said: “He didn’t get away with anything yet. Yet“. The first such legal case has been filed in federal court by Democratic chairman of the House Homeland Security committee, Bennie Thompson of Missouri. The legal case against Trump is tenuous under US law and precedent, as such, Thompson and his co-plaintiff the NAACP have delved into the legal history books to find a law which they can conceivably argue Trump breached, namely the Third Enforcement Act (1871), colloquially known as the Ku Klux Klan Act. The act was initially passed by President Ulysses S. Grant to give the government extra powers, such as the suspension of habeas corpus, to prosecute and disrupt the Ku Klux Klan’s terrorist activities in the Reconstruction Era South. Codified under Title 42 U.S. Code § 1983, the law gives legal recourse to seek damages for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws”. It appears that the “right” in question is Congress’s constitutional right to certify the votes of the Electoral College. As the suit states in relation to the Capitol Riot: “It was the intended and foreseeable culmination of a carefully coordinated campaign [by Trump and his allies] to interfere with the legal process required to confirm the tally of votes cast in the Electoral College”. However, a judge may question if any deprivation of rights occurred, considering Congress certified the vote shortly after the riot was broken up. Trump’s lawyer, Rudy Giuliani, The Proud Boys, and the Oath Keepers are also listed as defendants in the case.
As per the Supreme Court ruling in Brandenberg v. Ohio, to criminally convict Trump for incitement, the prosecution would have to prove that Trump intended to incite violence and that what he said was “likely to incite or produce such action”. However, civil cases, such as the one brought by Thompson, require a lower standard of proof than criminal cases. They require the plaintiff to prove, on balance of probabilities, that the defendant is guilty, they do not have to prove it beyond a reasonable doubt. The judge or jury that hears the case will therefore have greater latitude to impose their subjective opinion upon the evidence when deciding on a verdict. Considering how polarized pro- and anti-Trump factions in America are, the slate of jurors, if a jury trial is requested, could be crucial to the outcome of the case.