Lawsuits filed against Trump and neo-Klan groups using Reconstruction’s anti-Klan Law

Mass mobilizations along with legal action can stop the fascists.
Mass mobilizations along with legal action can stop the fascists. | Photo: Facebook

By Chris Fry

On November 20, 2020, the Detroit NAACP filed a lawsuit in Washington District Court on behalf of the Michigan Welfare Rights Organization against the Michigan Trump Campaign. Utilizing the 1871 Ku Klux Klan Act, which the suit says enables the enforcement of the 1965 Voting Rights Act, it says that Trump attempted to coerce Michigan election officials to disregard the votes of and thus disenfranchise the Black Detroit voters in the 2020 election. The suit states:

To effectuate this strategy, Defendants are openly seeking to disenfranchise Black voters, including voters in Detroit, Michigan. Repeating false claims of voter fraud, which have been thoroughly debunked, Defendants are pressuring state and local officials in Michigan not to count votes from Wayne County, Michigan (where Detroit is the county seat), and thereby disenfranchise hundreds of thousands of voters. Defendants’ tactics repeat the worst abuses in our nation’s history, as Black Americans were denied a voice in American democracy for most of the first two centuries of the Republic.

On February 16th the NAACP filed an historic federal lawsuit against Donald Trump, Rudy Giuliani and the neo-Klan groups the Proud Boys and Oath Keepers, accusing them of:

“conspiring to incite a violent riot at the U.S. Capitol on January 6th, with the goal of preventing Congress from certifying the 2020 presidential election. The lawsuit alleges that, by preventing Congress from carrying out its official duties, Trump, Giuliani, and the hate groups directly violated the 1871 Ku Klux Klan Act.”

The suit was filed on behalf of Mississippi Congressman Bennie Thompson, who is African American.

Derrick Johnson. President and CEO of the NAACP, made it clear that there is an absolute parallel between the Klan outrages of 1870 and 1871 designed to prevent Black freedmen from voting and the Trumpist insurrection at the Capitol on January 6th:

Donald Trump needs to be held accountable for deliberately inciting and colluding with white supremacists to stage a coup, in his continuing efforts to disenfranchise African-American voters. The insurrection was the culmination of a carefully orchestrated, months-long plan to destroy democracy, to block the results of a fair and democratic election, and to disenfranchise hundreds of thousands of African-American voters who cast valid ballots.

Janette McCarthy Wallace, interim general counsel of the N.A.A.C.P., said:

“Underlying this insurrection were the actions of folks who were challenging the voices of people of color. If you look at whose votes were being challenged, these came from largely urban areas. The votes of people of color were being challenged.”

The suit, for instance, charges Mr. Giuliani with attempting to reject “the votes cast by voters in Detroit, the population of which is 78 percent African-American.” It also says Mr. Giuliani inaccurately claimed there was fraud in voting in Milwaukee and Madison, Wis., “both of which have large African-American populations.”

A January 16th article by the New York Times stated:

In the lawsuit, Mr. Thompson said he was forced to wear a gas mask and hide on the floor of the House gallery for three hours while hearing “threats of physical violence against any member who attempted to proceed to approve the Electoral College ballot count.” Mr. Thompson also heard a gunshot, according to the suit, which he did not learn until later had killed Ashli Babbitt, one of the rioters in the Capitol lobby.

Mr. Thompson is seeking compensatory and punitive damages in the lawsuit filed in Federal District Court in Washington. The suit does not include a specific financial amount.

I feared for my life. Not a day passes that I don’t think about this incident. I was committed to seeing justice brought to this situation.

On March 5, Representative Swalwell filed a lawsuit against Trump, Trump Jr., Giuliani, and Representative Mo Brooks, also citing the 1871 Klan Act. According to an article in the Washington Post:

The lawsuit claims the four violated the Reconstruction-era Ku Klux Klan Act by conspiring to violently interfere in Congress’s constitutional duties and failing to act to stop the mob. It also accuses them of multiple counts of negligence under both federal and D.C. law, aiding and abetting, and infliction of emotional distress. 

Radical Reconstruction and the first defeat of the Klan

The Civil War ended in 1865. After Lincoln was assassinated, former slave owner Andrew Johnson became president.  Emboldened by Johnson, the ex-Confederate leaders did everything they could to keep their brutal grip on formerly enslaved Africans. An article by the Mississippi Historical society describes what happened next:

Instead of embracing change Mississippi passed the first and most extreme Black Codes, laws meant to replicate slavery as much as possible. The codes used “vagrancy” laws to control the traffic of black people and punished them for any breach of Old South etiquette. Blacks could not be idle, disorderly, or use “insulting” gestures. Blacks could not own a gun or preach the Gospel without first receiving a special license. Black children were forced to work as “apprentices” for white planters, usually their former masters, until they turned eighteen. Most blatant of all, the state penal codes simply replaced the word “slave” with “freedman;” all the crimes and penalties for slaves were “in full force” for the emancipated.

On one level, the Black Codes made a political statement. White Mississippians meant to limit the political power of blacks by denying them civil rights. On another, deeper level, these codes revealed an economic struggle between former masters and freed slaves. Ex-masters wanted to force Blacks to work as they had during bondage. Freedmen desired something else. They sought land to rent or own; they wanted self-sufficiency and independence from the old ways of plantation agriculture.

The newly formed Ku Klux Klan, made up of ex-Confederate soldiers and political leaders, attacked political meetings of formerly enslaved Africans, known as freedmen and freedwomen, in Memphis and New Orleans, killing dozens.

A small group of abolitionist Congressmen and Senators, called the “Radical Republicans, who had already forced through the 13th Amendment abolishing slavery, seized Reconstruction away from Johnson. They composed and engineered passage of the 14th Amendment, which guaranteed citizenship rights to the ex-slaves, and the 15th Amendment, which guaranteed formerly enslaved Africans the right to vote.

In response to this, in 1870 and 1871, the Klan launched a campaign of extreme terror throughout the South. As Eric Foner recounts in his book, “Reconstruction – America’s Unfinished Revolution (1863-1877):

In effect, the Klan was a military force serving the interests of the Democratic party, the planter class, and all those who desired the restoration of white supremacy…It aimed to reverse the interlocking changes sweeping the South during Reconstruction: to destroy the Republican party’s infrastructure, undermine the Reconstruction state, reestablish control of the Black workforce, and restore racial subordination in every aspect of Southern life.

Thousands of “Unionists”, formerly enslaved Africans and white Unionists, were whipped and beaten. Hundreds were murdered, mostly by lynching. Foner details one killing:

Jack Dupree, victim of a particularly brutal murder in Monroe County, Mississippi – assailants cut his throat and disemboweled him, all within sight of his wife, who had just given birth to twins – was “president of a republican club,” and known as a man “who would speak his mind.”

The deadliest Klan attack occurred in the town of Colfax, Louisiana, on Easter Sunday, April 13, 1873:

On April 13, Easter Sunday, more than 300 armed white men, including members of white supremacist organizations such as the Knights of White Camellia and the Ku Klux Klan, attacked the Courthouse building.  When the militia maneuvered a cannon to fire on the Courthouse, some of the sixty Black defenders fled while others surrendered.  When the leader of the attackers, James Hadnot, was accidentally shot by one of his own men, the white militia responded by shooting the Black prisoners.  Those who were wounded in the earlier battle, particularly Black militia members, were singled out for execution. The indiscriminate killing spread to African Americans who had not been at the courthouse and continued into the night.

All told, approximately 150 African Americans were killed, including 48 who were murdered after the battle. 

This wave of Klan terror sparked outrage, particularly in Congress and the Grant administration. At Grant’s urging, using Section 5 of the 14th Amendment, Congress passed three “Enforcement Acts”, the third and strongest of which is called the “Ku Klux Klan Act”, which contains several sections.

Section 1 of the KKK Act, renamed Section 1983, allows a person to file a civil suit if they are denied any constitutional right by any state official , including the right to vote. This means that federal officials could override discriminatory state laws and decisions:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress…

Section 2, renamed Section 1985, prohibits any conspiracy to violently prevent a public official from taking office or to “molest, interrupt, hinder, or impede” the discharge of official duties, among other acts. Those who commit such conspiracies and acts can also be sued by its victims. This is the relevant section for Congressman Thompson’s suit as well as the Michigan lawsuit.

Other sections of the KKK Act enabled the federal government to send federal troops into the South, particularly South Carolina, to suppress the Klan forces terrorizing the freedwomen and freedmen and their families, preventing them from voting. The newly formed Justice Department, led by Amos Ackerman, although an ex-slave owner, arrested thousands of Ku Klux Klansmen in the South, and imprisoned many of the ringleaders for long sentences in the federal penitentiary in Albany, New York.

Although Reconstruction was ended with the racist Compromise of 1877 and the withdrawal of federal troops from the South, as well as the imposition of Jim Crow, the decimated Ku Klux Klan did not reemerge until the beginning of the 20th century.

Lawsuits are justified but not enough.

Unlike the Civil War and Reconstruction period, the U.S. government today is firmly in the grip of finance capital, of huge banks and giant monopoly corporations. But now in the midst of the pandemic’s economic crisis and the rise of the huge Black Lives Matter Movement, as the ex-slaver planter class did then, the bourgeoisie sees the neo-Klan as a powerful auxiliary to their official repressive forces: the police, the prisons, even the military.

And as we saw on January 6th, a section of the ruling class is perfectly willing to use these neo-Klan fascists to overturn the electoral decisions of the masses of workers and oppressed, just as the racist Democrats in the 1860s and 1870s used the Ku Klux Klan as their army to violently deprive the voting rights of freedmen.

Those involved in leading the January 6th insurrection, including its mastermind Donald Trump, as well as those in Congress who voted to overturn the election even after the attack, are set to face little or no consequences from the timid Biden administration.

Although Section 3 of the 14th Amendment gives Biden and the Democrats the clear authority to prevent Trump from ever running for office again, there is no sign that they are willing to invoke it.

Eager to present themselves to their Wall Street masters as the more “stable” alternative to the Trump regime, they have already retreated on major portions of their “rescue” plan for the workers and oppressed, including the promised $15 an hour minimum wage and preventing millions from being able to receive the $1400 “bonus” check, while wasting no time in dropping bombs on Syria and echoing the Trump’s attacks on Iran and China. They cannot be relied on to suppress this new wave of white supremacist violence against the oppressed communities.

The rise of the neo-Klan represents a huge danger to the workers and oppressed. The right-wing politicians are actually using the January 6th insurrection as the basis to attack the loose anti-fascist coalition of groups and individuals sometimes refered to as “Antifa”, as well as the entire Black Lives Matter Movement, with little or no pushback from the Democratic Party leadership.

It must be remembered, especially as union drives are erupting nationwide, most notably at the Amazon facility in Alabama, that corporate owners have used Klan groups like the Black Legion to break strikes and smash unions, including the murder of UAW and AFL-CIO leaders.

Notwithstanding these quite correct lawsuits against Trump and his minions, it is going to take an organized and determined movement of the workers and oppressed to defeat this neo-Klan threat, to stop it in its tracks. And it is going to take the replacement of this decaying capitalist system by socialism to permanently prevent these monstrous neo-Klan forces from ever reemerging again.

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