Behind the legal tactics Trump is using to dodge justice for January 6

It would undoubtedly be of consequence and consolation if Donald Trump were held civilly liable for January 6, especially if he managed by hook, crook or Supreme Court to escape blame for his four criminal indictments. At this point, however, the civil lawsuits against Trump do not seem to be faring any better than the criminal lawsuits against him.

After nearly four years post January 6 and Trump’s failed insurrection, the former president’s tactics of delay, delay, and delay for both his criminally and civilly related lawsuits have been enormously successful. As of the November 5th presidential election, Teflon Don will still be escaping from seven out of eight election interference cases that have resulted in one criminal trial, 34 felony convictions, and no sentencing.

In light of Trump’s high-profile criminal indictments, defamation cases, and financial lawsuits, the four civil cases against citizen Trump involving the January 6 insurrection have fallen below the political radar. Most people have forgotten all about these, assuming they knew about them in the first place. Ergo, I thought it was time for a briefing or an update on these four civil cases.

A trio of forgotten lawsuits that the federal Appeals Court for the DC Circuit agreed to hear included one from Rep. Eric Swalwell (D-CA) and one from several Capitol Police officers. Oral arguments for these lawsuits were held in December 2022, and none were dismissed per Trump’s motions. Yet no trials have materialized to date. AXIOS dubbed these absences “the case of the missing lawsuits.” I would prefer to label these absences as Trump “gets over on the legal system” or Trump “escapes accountability and justice for all.”

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The first of these three civil lawsuits case occurred on February 16, 2021, when Cohen Milstein, in partnership with the NAACP, filed a lawsuit in the United States District Court for the District of Columbia on behalf of the Honorable Mississippi Congressman Bennie G. Thompson (D) against Donald J. Trump, Rudy Giuliani, the Proud Boys and the Oath Keepers, for violating the Ku Klux Klan Act of 1871, 42 U.S. C. § 1985(1).

This law was passed to allow Members of Congress to sue individuals who conspire to violently “molest, interrupt, hinder, or impede” the discharge of official duties such as certifying a presidential election.

Thompson, and subsequently, the Honorable Barbara Lee (D) from California and nine other members of the House of Representatives, joined the lawsuit before Thompson announced that he was withdrawing from it to avoid any conflict with his role as the Chair of the House Select Committee to investigate the Capitol riots.

Trump filed his appeal in March 2022. On December 1, 2023, the U.S. Court of Appeals for the District of Columbia Circuit decided that President Trump is not entitled to official-act immunity for his actions leading up to and on January 6, as alleged in the complaint, since he was acting as office-seeker, not office-holder.

Trump did not appeal this ruling to the Supreme Court. Nevertheless, the district court’s jurisdiction was not restored until February 2024. Last Wednesday was supposed to be the immunity-related discovery deadline, but neither party resisted extending the deadline until October 28, 2024. This means the judge’s decision will not happen until after the presidential election. If Trump does not like what’s in and out after the judge decides on discovery arguments, he will appeal. This would delay the case well into 2025 or beyond should he also appeal the Circuit Court’s decision when it likely goes against him to the Supreme Court.

On March 5, 2021, House Representative Eric Swalwell in Swalwell v. Trump et al. filed in the same U.S. District Court for the District of Columbia a similar lawsuit to Rep. Thompson accusing Trump and his co-defendants Donald Trump, Jr., Representative Mo Brooks (R-AL), and Rudy Giuliani of violating the Ku Klux Klan Act by conspiring to interfere with the Electoral College count on January 6, 2021.

The Swalwell lawsuit also alleges that the defendants committed criminal incitement under the local DC code–§22-1321(a)(2) and is therefore civilly liable for negligence. Beyond the civil rights and incitement counts, Swalwell has claimed that the defendants are not only liable for aiding and abetting the rioters’ violent conduct but also for intentionally inflicting emotional distress on members of Congress.

The four defendants filed their responses to the lawsuit between late May and early July 2021. Giuliani’s motion to dismiss argued that he had never formed a conspiracy and that his speech did not qualify as the First Amendment also protected incitement, which he maintained. Rep. Brooks’ motion to dismiss argued that he was acting within the scope of his employment under the Westfall Act.

By late July, the DOJ and the Chairwoman of the Committee on House Administration had submitted briefs stating that Brooks was not acting within the scope of his employment and thus should not be shielded by the Westfall Act.

Both Donald Trump and Donald Jr. filed motions to dismiss. Like his father's, Junior’s motion to dismiss contended that the First Amendment and the canonical Brandenburg test protected their speech.

Additionally, the former president claimed immunity because his alleged misconduct was within the scope of his official duties as president. Both Trumps also raised arguments ranging from standing to the political question doctrine.

Finally, Donald raised a unique “double jeopardy” question when he claimed that Swalwell was barred from suing him over the same conduct he had already been acquitted of at the culmination of his second impeachment trial.

On March 30, 2021, Capitol police officers James Blassingame and Sidney Hemby sued Trump for injuries they sustained during the January 6 riots. As with the other January 6 lawsuits, the plaintiffs claim that their injuries resulted from the former president’s incendiary rhetoric before and during the violence, aiding and abetting the rioters, and negligently inciting the riot in violation of DC’s public safety codes.

In addition, Blassingame a Black officer pointing to racial slurs and taunts hurled at him by the intruders, accused Trump of directing intentional infliction of emotional distress. The officers are each seeking from Trump a minimum of $75,000 in compensatory damages and an undisclosed amount in punitive damages.

On April 28, 2021, the plaintiffs added two conspiracy claims to their lawsuit. One was based on the KKK Act and the other on common law conspiracy alleging that Trump conspired illegally with the Proud Boys and the Oath Keepers to storm the Capitol, resulting in their injuries.

On June 6, 2021, defendant Trump filed a 55-page Memorandum supporting his Motion to Dismiss. On December 1, 2023, the Appeals Court ruled against Trump, permitting the cases to proceed. However, they have yet to do so.

Trump had unsuccessfully argued that he has absolute immunity, the Constitution forbids the court from exercising jurisdiction over the president’s actions during his presidency, the political question doctrine bars claims against the president, and res judicata and collateral estoppel or double jeopardy regarding his Impeachment acquittal preclude any such claims by the plaintiffs.

A fourth civil lawsuit was filed on August 26, 2021 in the U.S. District Court for the District of Columbia when seven Capitol police, the plaintiffs, represented by the Lawyers’ Committee for Civil Rights Under Law sued Donald J. Trump, Donald J. Trump for President, Inc., Stop the Steal, LLC, Ali Abdul Akbar, Brandon J. Straka, Roger J. Stone, Jr., Proud Boys, Proud Boys, Enrique Tarrio, Ethan Nordean, Joseph R. Biggs, Zachary Rehl, Charles Donohoe, Dominic J. Pezzola, Oath Keepers, Stewart Rhodes, Thomas E. Cardwell, Jessica Watkins, Kelly Meggs, Alan Hostetter, Russell Taylor, Erik Scott Warner, Felipe Antonio Martinez, Derek Kinnison, Ronald Mele, and John Does, 1-10, the defendants.

Sharing much common ground with the lawsuits filed by Thompson, Swalwell, and especially by Blassingame and Hemby, this case was filed several months after the others and has the most comprehensive scope of conspiratorial cases.

For example, the complaint has ten sections, perhaps the most illuminating is number nine, quoted in its entirety here:

TRUMP employed, planned for, and encouraged the use of force, intimidation, and threats to try to stop the Congressional count of electoral votes on January 6. He followed the Capitol Attack on television and social media as it happened, and despite requests made to TRUMP to call off the attackers—including from House Minority Leader Kevin McCarthy—he refused to do so for hours as he watched on live television the attackers overrun the Capitol and threaten its lawful occupants.

Instead, TRUMP encouraged and supported the attackers. While the Attack was ongoing, TRUMP and his co-conspirators contacted members of Congress, not to offer support or protection, but to pressure them to delay further and to stop the Congressional count.

Even after the attackers—including white supremacists and hate groups—were finally repelled and cleared from the Capitol, TRUMP ratified their attack and praised them, “We love you. You’re very special,” and to “Remember this day forever!” TRUMP later confirmed that he and the attackers shared the same goal, stating, “Personally, what I wanted is what they wanted.”

In summary, this civil lawsuit claims that the defendants were responsible for the violent assaults against and injuries to the officers as well as fearing for their lives. Also, the black officers became objects of racial slurs and epithets.

Also, by falsely claiming that the election was rigged and stolen, Trump and his associates incited a mob of the former president’s supporters to storm the Capitol to stop Congress from confirming Biden’s victory as the 46th president.

In addition to violating the federal Ku Klux Klan Act, the defendants violated the D.C. Bias-Related Crimes Act, conspiracy, and several other laws. The lawsuit does not seek a specific monetary award but asks for compensatory and punitive damages in an amount to be determined by “the jury in trust.”

On April 18, 2024, U.S. District Judge Amit Mehta rejected Trump’s effort to pause lawsuits brought by both members of Congress and police officers against him for his actions on Jan. 6 to subvert the 2020 election -- until after the federal election interference case brought by special counsel Jack Smith is resolved.

While a few of the complaints from one dead officer’s spouse were dismissed in January 2024, “a group of U.S. Capitol Police officers are moving forward” like the other civil cases because of the appeals court ruling that Trump as a citizen has no immunity from civil lawsuits.

In the meantime, no civil trial dates have been set for any of these overdue lawsuits of liability.

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Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.