WASHINGTON (CN) — As the impeachment trial of former President Donald Trump continued his legacy of creating new constitutional issues, questions remain as to how Trump could be held additionally liable for the Jan. 6 riot and what similarly uncharted grounds those claims could enter.
Impeachment is a political trial with political consequences with, at best, Trump’s chances of future office being denied, but what about the financial costs paid by the city of DC, congressional staffers, the family of the dead Capitol Police officers, or any other party who could claim harm from the attempted insurrection?
Civil claims of negligence or other money-linked claims could be in the former presidents’ near future and how those cases turn out could look wildly different than the ongoing show trial where traditional legal rules don’t apply.
Paul Levy, an attorney with the political watchdog Public Citizen Litigation Group said civil action could be one way to punish Trump.
“The only thing Trump understands is money,” he borrowed from a recent USA Today piece by George Washington University’s Alan B. Morrison which suggested Biden himself should sue Trump for the riot cleanup. But Levy also noted any such trial would run into two legal hurdles: Brandenburg and Claiborne.
Anyone who watched even a portion of the impeachment hearings is now familiar with Brandenburg v. Ohio. Decided in 1969 in the midst of the civil rights movement, Clarence Brandenburg was a Klu Klux Klan leader who spoke out against racial diversity and the government’s supposed efforts to “suppress the white, Caucasian race.”
He was convicted under a state criminal syndicalism law originally intended to minimize the spread of communist beliefs which criminalized “unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
Brandenburg appealed and made it to the U.S. Supreme Court which reversed the ruling as an overly broad limit on the abstract advocacy of force. They instead narrowed the limit on such speech to that which qualifies as “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
This created a nearly shut window for those who wish to criminalize such speech.
But Trump’s defense could also look to NAACP vs. Claiborne Hardware. This 1982 dispute involved the Mississippi-based civil rights group holding an extended boycott of white-owned businesses. The business owners said they were not only the victims of an economic slight, but a verbal one as well with calls for violence hurled at them.
While the state’s Supreme Court upheld a ruling finding the group and its leader Charles Evers civilly liable for damages from the boycott, speeches and threats, the U.S. Supreme Court unanimously reversed.
“While the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity,” wrote Justice John Paul Steven. “For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.”
Levy says these two cases together offer Trump a hefty shield from any civil action, but undoubtedly the facts in the case raise some interesting questions.
Trump as president has a unique platform and control over his audience, and while the president didn’t outright say “go storm the Capitol,” his use of code words may protect him from criminal liability, but not civil where the standard of proof is lower.
“They were intended to be understood by his audience to go be violent,” Levy said of Trump’s ability to walk up to the line of criminal incitement without crossing it and how Claiborne’s intent test could apply.
“Did Trump start the riot and are there various pieces of evidence that could be brought to bear on that question?” Levy asked in the hypothetical. “If a witness could be found to say that Trump wanted it to happen, it could bear significantly on his liability.”
New evidence from Washington Republican Rep. Jaime Herrera Beutler suggesting Trump told House Minority Leader Kevin McCarthy “I guess these people are more upset about the election than you are” could help in that fight.
Still, charging a speaker in any way for the words he’s uttered is a complicated and constitutionally fraught matter.
“Pushing the limits on Trump could come back to bite people I care about,” Levy admitted, suggesting even holding Trump’s status as president or leader of a movement to a different standard could impact civil rights leaders if they ever face similar charges.
Then there’s the basis of Trump’s claims: the idea that the 2020 election was stolen. Over 60 courts, including the U.S. Supreme Court, struck legal attempts to overturn the outcome of the race, and while the language used by the president might be demonstrably false, free speech advocates note the nature of that falsehood doesn’t make the speech any less protected.
“We don’t trust the government to determine whether those statements are correct or not in a way that would allow the suppression of speech,” said Eugene Volokh, a professor of law at UCLA who often advocates a purist’s view of the freedom of speech.
While other civil claims make exceptions for false speech — think defamation claims — Volokh said the U.S. tried to regulate false statements about the government in line with what Trump has used.
The Sedition Act of 1798 criminalized “false, scandalous, or malicious writing” about the government in an attempt to stave off war with the French at a time when newspapers were more directly linked to political agendas.
“Some judges have approved of it [around 1800], but since then it’s been rejected as improper,” said Volokh about the act which expired in 1801. The scholar said those in power found such attempts irrelevant “in a democracy when it’s up to the people to decide what to believe rather than up to the government.”
As for the future of a civil trial holding Trump liable, Volokh also seemed skeptical if not outright concerned for the fallout.
“For a lawsuit over his speech it would apply equally to anti-police brutality activists, environmental activists; any time when you’re speaking to a group where many of the members are law abiding and some are prone to violence,” he said. “That’s true of a great many political movements.”
This incitement test, and the importance of protecting speakers is a uniquely American concept, and Volokh and Levy are far from being a small group of legal scholars who respect the importance of that right.
Andy Geronimo, director of the First Amendment Clinic at Case Western Reserve University School of Law, described the concept of freedom of speech as critical in America’s participatory system of government.
“When the founders created the First Amendment they were concerned about retaliation from the government they left,” he said of old punishments under a king, and being able to freely criticize those in power has been a lasting feature.
He also noted speech-related decisions are often linked to large, socially complicated issues, and while one side might not like the outcome, that decision ensures the ability of both sides to exist in perpetuity.
“We don’t want to strike the speech we don’t like in case the speech we do like is impacted as well,” he said.
This outcome also adds to the importance of that freedom in that the counter to distasteful speech is more, not less speech.
“If we make repugnant speech illegal then it stays inside of the speaker and we never know,” he argued, comparing it to someone hoisting a Confederate flag or other controversial display on their front lawn in his neighborhood.
“I’d want to know that so I can inform my kids about that and support the neighbors on that street instead of suppressing that speech,” he said.
But there is pushback on at least parts of this idea, or at least specifically to the cases that enable a scenario Trump could exploit.
Eric Segall, the Ashe Family Professor of law at Georgia State University School of Law, argued flatly that “Brandenburg needs to be altered.”
He said its interpretation could expand to include whether someone intended to incite illegal action and it’s likely that action would happen.
“These are factual issues,” he argued, suggesting the use of context, or looking backwards at what was said and done in the months leading up to a protest turned violent, could instead be a part of the First Amendment test in the case.
He also noted Brandenburg didn’t end in violence, something important for both precedent and Trump’s liability.
“Looking back at Trump’s actions, he meets that test,” he said of the months-long campaign the former president ran following his loss in November. Between tweets and rallies, calls to “stop the steal” and other claims, Segall said the uniqueness of Trump’s position and words could open the door to a different, albeit narrow interpretation of case law that could hold Trump accountable.
Segall admits he supports a more “European view” on speech laws. He pointed to England’s ban on political ads on the days leading up to elections there. All nine members of the U.S. Supreme Court would strike any similar law in the states, he said.
“That’s crazy,” he replied, noting the American legal system has long and sometimes in a problematic manner allowed the use of free speech to trump any effort that could limit values that run counter to the nation’s founding ideals.
“We are exceptionally poor at balancing free speech over other values,” he added.
And while he appreciated the concerns expressed by the majority of legal thinkers on the issue, he also argued the narrowness of a ruling against Trump would be key.
“What free speech zealots don’t appreciate about this incident is that this wasn’t incitement because of one speech, it was a pattern of behavior over months,” he said. “Give me another case like that and we’ll talk.”
Trump’s case doesn’t exist in a vacuum. Fox News and political leaders on the right have pushed against those who wish to hold Trump responsible by holding up Black Lives Matter protests that led to property damage around the country.
And back in November a slightly comparable case, Doe v. Mckesson, was sent back to Louisiana state courts by the U.S. Supreme Court in a dispute involving negligence claims from a police officer who was injured during a Black Lives Matter protest.
Defendant, civil rights activist and national BLM organizer DeRay Mckesson led the rally which involved marching onto a public highway and ended with rocks being thrown at officers.
While the thrower of the rock which injured plaintiff officer Doe was never identified, an appeals court tried to hold the activist responsible for the injuries as a leader of the event.
“It may have been an unknown demonstrator who threw the hard object at Officer Doe, but by leading the demonstrators onto the public highway and provoking a violent confrontation with the police, Mckesson’s negligent actions were the ‘but for’ causes of Officer Doe’s injuries,” wrote the Fifth Circuit panel.
Notably, the nation’s highest court sent the case back over state law issues and avoided the First Amendment issue at hand, but the idea was mentioned in the court’s order.
“The Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court,” the November unsigned order read.
Mckesson rose to national prominence after going to Ferguson, Missouri, in the wake of Michael Brown’s death at the hands of local police. While Black civil rights were the main focus of the movement, he quickly ran into free speech issues when local authorities began pushing back on their public demonstrations.
“We were getting beaten up every two seconds,” he said of his first run in with a local law that banned standing in place for more than five seconds.
Mckesson and others were charged under the law which was later overturned by a federal judge, but the Louisiana injury case soon followed.
While the outcome for the “duty not to negligently precipitate the crime of a third party” charge is not yet final, his defense brief cites Brandenburg heavily, something Trump’s defense briefs would likely mimic.
“I’m hoping they’ll realize they directly and legitimately incited violence, that there was a call to action and he was part of it,” Mckesson said of the differences between his dispute and something in the future against Trump. “These are apples to oranges.”
There’s other cases and factors that could also play into the outcome of any civil claim against the former president. If the charges are filed in state courts, a local jury in DC could foreseeably be less kind to the controversial figure.
How discovery would play out, including Trump’s preference for dragging proceedings on for years if not longer, could also play a role. But at some point a judge and jury could be asked to decide the former president’s financial fate.
And while Segall admits there will be thorny questions at hand, he hopes the country’s judicial system can rise to the challenge.
“There’s a difference between a president of the United States on a two and a half month agenda leading up to the exact hour Congress is going to make the election final,” he said. “If we can’t distinguish that from other cases, then all is lost.”