Trump Facing Criminal Charges and a Lawsuit by NAACP

was terrorizing blacks in the South. And this week the N Double a CP filed a suit against former President Donald Trump, Rudy Giuliani, the Proud Boys, and the Oath Keepers for conspiring to incite the January sixth Capital riot in violation of the eighteen seventy one Ku Klux Klan

Act enacted to combat the KKK. The suit was filed on behalf of Democratic Representative Bennie Thompson of Mississippi, who spoke to MSNBC that Ku Klux Klan UH law was basically put on the books to protect Southerners, that other people from the clan who didn't want this great country of ours to survive, but thank goodness and did. And now here we come full circle, uh with this plan like activity. Joining me is Harold Crant, professor at the Chicago Kent College of Law. I'll tell us about the

history of this law. The Kukus Plan Acts were passed in the wake of the reconstruction as a means of trying to ensure the newly freed slaves their ability to enjoy the protection rights, and particularly the right to vote. Individuals are being intimidated from voting, and indeed federal officials are being intimidated from trying to ensure the vote to

the newly freed slaves. So Congress stepped in to impose both criminal penalties on those who interfere with the right to vote, as well as a civil right of action. So now this has been used rarely, so rarely litigated. Are there open questions about it? They're very open questions. I mean to look at it. Historically, the discipline of the act was the criminal penalties, and the criminal penalties were used thousands of times by the Grant administration in order to break the back of the k k K

and it was remarkably successful in doing so. But the civil aspects of the statutes lay dormant for hundred years until they were used very successfully in the nineteen eighties when the clan was accused of trying to disrupt an individual's ability to vote. So the key question is can a public official use it as a civil means to get remedies for injuries he sustained, And that's the claim by Representative Thompson, to my knowledge, has never been used

by a public official. Certainly, the actions are prohibited by the statute, but the question is whether that's nearly left over from a criminal penalty, or whether it gives a right to a public official to sue for injuries that he or she received. And what about the hurdle of a president being immune from civil laws suits for acts in his official capacity. The Supreme Court in Nixon versus Fitzgerald held that the president is absolutely immune from civil

suits for any actions during his administration. So this lawsuit will have to prove that Trump was acting not in his official capacity but in his personal capacity when he allegedly conspired in the events of January six. The plaintiest anticipated that hurdle and alleged that Trump acted beyond the outer perimeter of his official duties and therefore is susceptible to suit in his personal capacity. It's going to be extremely difficult for the lawsuit to prevail against President Trump

on that ground. A very similar argument was made in Fitzgerald versus Nixon itself. The allegation there was that Nixon had Fitzgerald fired. He was a management analyst for the Air Force and he had reported on cost overruns which embarrassed the administration. He was fired and then sued Nixon after Nixon's term in office was over, and as in this case, he said, look, you took personal vendet against me, and by firing me, you acted outside your official responsibilities.

I should be able to sue you. And the Supreme Court brushed that aside and said, if we took any kind of allegations of unlawful behavior against the president, his official community would be chipped away too extensively. And so I think they'll be very demanding in terms of the showing required to remove a president's absolute immunity from civil suits.

In the defamation lawsuit by a New York advice columnist e Jene Carroll against Trump, the judge said that this wasn't part of his official duty, so the lawsuit could go on. Do you think that that was an incorrect decision? Then? I think that is a tough decision, and I think it may not hold up on appeal. Particularly lawsuit. The response was an official if I read McCall correctly, at an official press conference, and he was responding to questions

about the lawsuit and the situation. So to be difficult, I think, to show that when you're responding to a question at a White House press conference that you're not acting within the outer perimeter of your job. Now, the Supreme Court made up these rules in terms of absolute community, so it is theoretically possible that the Supreme Court will we consider the scope of Fitzgerald case and decide to limit the kinds of immunities that a president may enjoy.

But I'm skeptical and I think that both of these lawsuits will have a hard time against President Trump himself. Now, President Trump is not immune from criminal conduct, speaking of tough evidentially burdens. This lawsuit alleges a conspiracy that Trump and Juliani and the Proud Boys and Oathkeepers acted in concert to incite and then carry out the Capital insurrection.

So not only are there issues about who can be sued and who can sue under the Ku klux Clian Act, but the very conspiracy itself will be difficult to prove. To show that there was an active agreement amongst the Proud Boys, the Oathkeepers, Giuliani and Trump somewhat defied I think credibility. But I think that one of the points here in the lawsuit, besides the symbolism of using the ku klux Clian Act, is to put the Proud Boys

in the Oathkeepers on the defensive. They will have to spend money, and if this case continues, they'll be subject to depositions and discovery, and so a great deal of information may being covered, even if ultimately will prove too difficult to show a conspiracy. So there's a political aspect to this lawsuit as well as illegal. It's a very

important critical aspect. Right, we have the symbolism of using the Act, we have the threat of financial harm imposed upon the oath Keepers and probablys were probably not flush with cash. Um. The same thing is true with the lawsuits. Will be many lawsuits against Giuliani and how much money does does he have? And at the same time we may find out that there were discussions and maybe there

was a conspiracy, right, we don't know, um. And but the idea of discovery is to get at phone calls, emails, Facebook messages that may suggest that there was more co

ordination than we've been led to believe. I haven't scoured the books, but I would think that this is really Possibly it's to get into federal court, but possibly the use of the Klux clan statue is really symbolic, and that if Congressman Thompson had simply sued for toward injury that he received, it would not be the same kind of press not be the same kind of overarching inquiry into what happened that day. So I think this raises the stakes, that raises the visibility of the lawsuit as

opposed to a personal injury suit. I should say, the leader of the Proud Boys has said that there was no plan to go to the capital, that though there were Proud Boys there, there was no actual plan to go to the capital. So Trump, so when his his spokesman responded, did not mention the immunity from civil suit. Instead, he said that Trump did not incite or conspire to incite any violence at the Capitol. Seems odd that they

didn't mention immunity from lawsuits. Well, I read that, and and my take on it is simply that he wants to repeat what the defense was before the Senate and the impeachment trial, that he he was exercising his First Amendment rights, was proud of the support he was receiving from the crowd in front of the White House, and in no way inside it any kind of violence. Um. Obviously, when it comes down to responding to this lawsuit, I have a strong suspicion that he will rely upon presidential

community as well. An advantage of this suit that you don't have in a criminal case is that there's a lower burden for the plaintiffs, So explain the burden in a civil suit. In a civil suit, the burden is only a little over for the plaintiff to prevail, unlike in a criminal suit when the state has to prove beyond a reasonable doubt that the individual committed the covered offense. And so it may be that in a close case, and I would think that the Georgia cases you even

more difficult or Trump than the insurrection case. But then in a close case, uh, Trump may lose in the civil case even if you would prevail in a criminal case. I was wondering if there are any jurisdictional problems. I don't think so. I mean, I think the only I mean, look, I don't know, but I just find it odd that the statute that criminalizes interference with government officials allows the

government officials to sue for your individual damages. It just seems that that was intended for a criminal prohibition as opposed to for giving the governmental official a right to sue for personal damages. But maybe it is, and that's going to be a very difficult historical argument. But I think the other kinds of jurisdictional issues should be relatively clear.

There were proud boys there, there were the oath keepers, both in the in d C. And there's no question that at least some of them wanted to interfere with the official tabulation of the of the votes. And that does lie at the heart of the civil rights statute, which are known as the Kukus clan at And so it seems, as you refer to a big point of this lawsuit, maybe to get more information, you know, the house managers stopped short of having any witnesses or secupoenaing

any documents. So this might allow some discovery into what really happened. Absolutely, even if President Trump is removed from this case because of immunity, the case can continue and with depositions, with discovery subpoenas of the planets may find out a great deal more about who knew what, who planned to do what on January six. And it seems like the house managers have basically laid out the case four of them. They can use all the different video

and audio and information that the house managers presented. Right, there's a great deal of video and audio information that are already in the public consciousness and public record because we saw it during the impeachment trial. But we have not seen again in terms of emails, we haven't seen

all the Facebook messages. We haven't seen um, we haven't had depositions of some of the leaders of the both Keepers and the Cowboys, and that information they supplement the record and give us a different picture of what really happened on January six. Some civil attorneys have been using the KKK statute in recent years for defending people who have been injured by hate groups, at least in the

lawsuit phase. So what does it say that basically the statute that's been forgotten for so many years that it's having to be used again. There are different avenues that individuals can use who are injured in the riots at the Capitol on January six. They don't have to just rely upon the k K statute. There can be assault and other kinds of claims for people who were um injured. Uh. This is a powerful statute because it has attorney's feece

and other costs can be associated with it to be recovered. Um. But I think it's again mostly being used because it gives a federal right of action as opposed to a state action that would otherwise be required for just a a tort injury for instance, that happened due to the rioters and lit the mayhem they caught. Thanks for being on the Bloomberg Law Show. How that's Professor Harold Trent of Chicago Kent College of Law. Former President Donald m faces a new legal threat from a prosecutor who was

just sworn into office. Last month. Fulton County District Attorney Fannie Willis sent a letter to Tom Georgia state officials informing them that her office is investigating whether illegal attempts were made to influence the state's elections. This includes Trump's now infamous January second call to Georgia's Secretary of State asking him to change the States certified results of the presidential election. So look, all I want to do is this, I just want to find uh thousand seven eight votes,

which is one more that we have. You know what they did and you're not reporting it. That's a you know, that's a criminal that's a criminal offense, and you know you can't let that happen. That's that's a big risk to you and to Ryan. Joining me is Clark Cunningham, a law professor at Georgia State University. Clark, in her letter Willis says she's focused on a wide range of charges, including solicitation of election fraud, false statements, conspiracy, and racketeering.

How would you characterize her investigation. I would say it's a sweeping investigation at this stage, and what I've seen, she's looking at more charges than the people involved in the phone call. What I understand is she's looking at Trump's phone call to Governor Kemp attempting to interfere with the election through that phone call. She's looking at the phone call the Trump made to the Attorney General Chris Carr,

attempting to interfere with him. Defending the State of Georgia against the completely spurious lawsuits of the State of Texas filed in the Supreme Court. She's looking at this phone call to the Secretary of State that I imagine She's also looking at other attempts that Trump made to pressure or attimidate Sector of State Rassenberger. For example, he helped the press conference on Thanksgiving and said that the Secretary

of State was the enemy of the people. I believe she's looking at a phone call that Trump made directly to an official of the Georgia of your investigation, who was conduct seem an election audit. And I believe she's also and this is why she has sent a letter to the Lieutenant Governor, because the Lieutenant Governor is the

presiding officer of the Georgia Senate. And she's looking at statements that Giuliani made on behalf of Trump to this Georgia legislature, particularly to the Senate, which have been described as false and fraudulent statement. One charge mentioned is criminal solicitation to commit election fraud. Describe what's required there and how Trump's phone call might fit in. You know, Frankly, that looks like it open and shut case to me. We have the transcript, we have the actual recording of

the phone call. Trump has admitted that it's genuine, So the facts are very clear. And so the crime is that a person commits the offense when with intent that another person engage in conduct constituting a felony under this article, he or she solicits request commands, import tunes are otherwise attempts to cause the other person to engage in such conduct.

So the question it is during that phone call, was Trump trying soliciting, requesting, commanding, import tuning, or otherwise attempting to cause the Secretary of State and his staff to engage an election fraud? And then there are lots of things that constitute election fraud, but altering certified vote results would clearly be one of them. Let's discuss possible racketeering charges.

In her most famous case, Willis used Georgia's Rico law to prosecute teachers and officials in a cheating scandal in the Atlanta public school system, a place where you don't usually expect racketeering charges. Yes, and I was living in Atlanta at the time, and she secured a lot of convictions under that theory that there was a criminal enterprise to bribe teachers or threatened teachers to change and great. So she's very familiar with the Georgia recetarian statutes. She

secured a lot of convictions. It was controversial. Some people thought that the prosecution was overzealous, but that has nothing to do with as far as I know, whether or not racketeering was appropriate. How would Georgia's racketeering law fit in with this case. So the key to to the statute are the definition sections, because the elements of a racketeering prosecution is that there has to be an enterprise, and an enterprise can be pretty much anything that is engaged,

can be a person, a partnership, trust, the union. Certainly, the Trump campaign is an enterprise that engages in at least two acts of what's called racketeering activity. And if the enterprises engages in at least two acts of racketeering activity within the time frame, then you have a racketariing game. So they need at least two events, not just one. And then the definition of racketeering activity includes committing or attempts to commit a violation of a number of Georgia statutes.

And the one that I assume that she's particularly interested in is the false statement statute that I refer to a moment ago um that it's a fility for person knowingly and willfully to make a false, ffication, fictitious or a fraudulan statement within the jurisdiction of any department, agency, and state government. So that would apply to any false statements at Trump or anybody who was an effect part

of his campaign at enterprise made to the governor. That's Attorney General Lindy Graham in effect could be part of that enterprise. So it can include any of any of any of the statements that were made by them to achieve the purpose of the of the rack of the enterprise, and the purpose of the enterprise was too keith Donald Trump in office without it. That was a possible defense of Trump's could be I didn't have the intent to commit a crime. Here, he could say, I didn't want

the records to be falsified. I wanted them to be corrected. Well, you could say whatever he wants to say, but I've read through this transcript the number of times his intent is crystal clear, and his intent is to solicit the Secretary of State to change the certified election results by enough votes so the margin of victory shifts to him, and he says that over and over and over again in that meeting. But that's what he wants to achieve, um. And there's no good defense for that statement that he

makes over and over and over again. First of all, of course, the president the United States should not be getting on the phone with the state election officials anyway. Right.

But if he got on the phone with the Secretary of State and said, I understand you did an audit of signature matching on absidentee ballots in Cobb County, I'm calling to ask you to also do that in Fulton County, all right, that would be something different, and of course the president would have to live with whatever the result of that audit was just like a recounts. Nothing wrong with asking for a recount, but you can't ask for recount and say recount until you get eleven votes from

me and then stop the recount. Um. And so that was that was the entire strategy of this phone call. And I've looked at it now again he's simply dealing with it, apparently the way he deals to almost everything UM as a kind of transactional negotiations. Right. So he starts off with Folston inflated statements that he had hundreds of thousand, he went by hundreds of thousands of votes,

And he makes a number of very factual statements, right. Um, you know, he says, Um, there were four thousand, five hundred and two voters who weren't on the voter registration role. There were eighteen thousand and three hundred voters where their addressed was a vacant house. There were nine hundred four voters who only had a post office box. Um, there were four thousand, nine hundred twenty five ballots from out of state voters. There were two thousand, three and twenty

six ballots absently, ballots that stake of Christ. Those are very very precise numbers. So those are factual statements. And if they're false, then there's a statute that says that it is a crime to willingly knowingly make a false statement to the government agency. Now it would probably it would be for the jury to determine whether he knew

that those statements were false. But factually, I don't think there's any questions but their faults and he wasn't saying, in my opinion, you know, the election was not handled well. He's making very very specific factual statements. And then he says, add all these facts up, add all these different facts which I asserved to be true, and you've gotten a lot more than eleven thousand votes that should have been

cast for me. And then it's perfectly clear. He says, Okay, now that I've made the case that actually factually there there are in his hundreds of thousands of votes for him. Then he basically says, but let's make a deal, right, Um, okay, and he says that over and over again. UM. So he begins, here's the line that's the clearest solicitation. Um. And it's interesting how he he blends threats with this.

So he says, we have won this election in Georgia based on all of this, and there's nothing wrong with saying that. Brady's referring to the Secretary of States, you know, I mean having the correct and then he stops and he makes a threat. The people of Georgia are angry, and these numbers are going to be repeated on Monday night. That's when he was coming into for big rally along with others that we're going to have by that time, which you're much more substantial even and the people of

Georgia are angry. The people of the country are angry. So makes the threat. And then here's the solicitation for fraud. And there's nothing wrong with saying, you know that you've recalculate, okay. And then he said, even if you cut him in half, cut him in half, and cut him in half again, it's more votes than we need. So and then over and over again he says, take my deal. All I need is eleven thousand votes, right, And he says that

over and over again. The enterprise and the purpose of the enterprise was too keith Donald Trump in office without it that she's going to look into apparently, also the abrupt resignation of the U. S. Attorney for Northern Georgia. How does that fit within her her view? It seems to me that certainly if I were and I'm not

prosecuting the case, I'm just an academic. But it's if I were prosecuting the case, I would layout what seems to be a pretty clear narrative um and it's it's a it's a plan that apparently Rudy Giulietti developed for Trump for how to uh get packed the fact that Trump lost the popular vote um, and so plan one, right um, was to sort directly try to change the

vote through this these kinds of political pressure. Plan two was to prevent in in the swing states the votes from being certified by the safe Harvard date in early December, so that an argument could be made that because the votes were not certified by that date, it's then reverted to the state legislature to step in and appoint display of elector. And of course he targeted states with Republican

dominated legislatures. So the plan was up to that point was to try to block the certification by lawsuits by

political pressure. Whatever that failed, Okay, then the next step in the plan was to prevent the votes from being certified in Congress so that Biden failed to receive a majority of the of the electoral votes in Congress, because under the constitution, if nobody gets the majority of electoral votes, the decision goes to the House of Representatives voting by state delegations, which would mean that the Republicans would choose

the next president and that would be Trump. So that was the plan, and each of these acts fits perfectly as steps towards achieving those goals. This has gotten a lot more attention. But the Secretary of State is also investigating. Do you expect that to go anywhere? I think it

probably will, at a minimum take a back seat. The Bolton County District Attorney doesn't have to wait for that process, as I understand that there is a process where the state Election Board can investigate violations as the Election Code, and if they decide there is a violation that they can request either a local district attorney or the Attorney General too to pursue it. But District Attorney Wills doesn't theology to wait for that process. And I think she's right.

These are crimes, they were committed in her jurisdiction. She can proceive and I think that I think I think that's what's going to happen. In her letters, she also mentions that the next grand jury will be convening in March and they'll begin requesting grand jury subpoenas if necessary at that time. What kind of information might she be looking for that's not already in the public record. We

don't know what we don't know doing so. Part of the frustration about the recently completed second impeachment trial is there were no witnesses, There was no discovery of evidence.

Everything was based on a public record, which was pretty much true of the first impeachment, And you don't know what kind of evidence of conspiracy you're going to find, particularly if she served subpoenas on Giuliani and there is a crime fraud exception to attorney client privilege that she might succeed on that and forced Giuliani to turn over all the information about his work on behalf of President Trump and Georgia. That would be a treasured drove of information.

Thanks Clark. That's Clark Cunningham, a professor at the Georgia State University. And that's it for the sedition of the Bloomberg Law Show. I'm June Grosso. Thanks so much for listening. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, And please tune into The Bloomberg Law Show every week then at ten pm Eastern right here on Bloomberg Radio