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Lawrence Tribe: Capitol police have the best case against Trump for the insurrection
Boston GlobeDespite 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.
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.
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