Will Trump Be Held Accountable for Inciting the Capitol Insurrection?

In the days following the January 6th insurrection in the U.S. Capitol, a growing chorus of politicians, activists, pundits, and ordinary citizens began to demand that President Trump be held accountable for his role in inciting the insurrection, which put members of Congress’ lives in danger and left five people dead. [1] However, since the U.S. House of Representatives impeached Trump but the Senate failed to convict him for his actions leading up to and on that day, it is up to the criminal and civil courts to hold Trump accountable. [2] On February 16th, the NAACP filed a civil lawsuit against Trump, arguing that Trump, along with the Proud Boys and other white supremacist groups, unlawfully prevented members of Congress from certifying the election results. [3] At the heart of the NAACP’s lawsuit is the Ku Klux Klan Act of 1871, which protects elected officials from being intimidated or prevented from fulfilling their official duties. [4] The biggest hurdle the NAACP faces in its lawsuit against Trump is presidential legal immunity, which broadly protects presidents from criminal prosecution or civil litigation for their actions taken while in office. [5] A closer examination of presidential legal immunity and its limits, however, reveals that Trump may very well be held accountable for his role in inciting the January 6th insurrection under the KKK Act. 

The KKK Act of 1871 is in many ways perfectly suited to hold Trump civilly accountable for his role in inciting the January 6th riots. Passed during Reconstruction, the act was designed to punish members of the KKK who were trying to prevent Black citizens from voting or running for office by intimidating them. [6] Within the act is a clause that gives elected officials a path to civil recourse if they were prevented from fulfilling their official duties by members of the KKK;[7] this clause was invoked by the NAACP in its civil lawsuit against Trump in their suit contending that, on January 6th, Trump prevented members of Congress from doing their job by calling on his supporters to raid the Capitol, which forcibly delayed Congress’ certification of the election results. [8]

Although it may appear that the KKK Act is perfectly equipped to hold Trump accountable for his role in the insurrection, the case against Trump is not so simple or straightforward, as presidents have legal immunity that “extends to all acts within the “outer perimeter” of [their] duties of office.” [9] In Nixon v. Fitzgerald, The Court ruled that presidents need broad legal immunity against lawsuits because “diversion of [their] energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” [10] Therefore, it may be tempting to conclude that, although Trump’s actions relating to inciting the insurrection may have violated the KKK Act, the fact that he was president at the time may shield him from being held accountable criminally or civilly, given his legal immunity. 

Yet, the president’s legal immunity is by no means absolute, since there are limits to this immunity that the Court has loosely delineated over the years; as already mentioned, the president’s legal immunity only “extends to all acts within the “outer perimeter” of his authority.” [11] Although the Court has been hesitant to precisely delineate this “outer perimeter,” its decision in Nixon v. Fitzgerald provides a standard by which to define the scope of presidential authority. Debating whether the president can face civil litigation for firing one of his secretaries out of retaliation, the Court decided:

“It clearly is within the president's constitutional and statutory authority to prescribe the manner in which the secretary will conduct the business of the Air Force … Because [the president’s] mandate of office must include the authority to prescribe reorganizations and reductions in force, we conclude that [the president’s] alleged wrongful acts lay well within the outer perimeter of his authority.” [12]

In short, it appears that the standard to use to determine whether an action falls within the “outer perimeter” of the president’s authority is whether the president has the special executive authority to take said action; in the Nixon v. Fitzgerald case, the president was immune from civil litigation for firing his secretary out of retaliation, precisely because he had the special executive authority as president to make such decisions. From this standard, it can also be concluded that the president can face civil litigation for actions that he does not have the special executive authority to take, because these actions fall outside of the “outer perimeter” of his authority. 

Based on the Court’s standard for delineating the outer perimeters of the president’s authority, Trump can face civil litigation for his role in inciting the insurrection, because he did not have the special executive authority as president to call on his supporters to storm the Capitol, meaning his actions fell outside of the outer perimeters of his duties of office.” [13] In other words, when Trump called on his supporters to storm the Capitol, he was not exercising any special executive authority; he was merely exercising his right to freedom of speech(albeit not freedom from consequences) that every American has, thus acting outside of the outer perimeters of his official duties. Therefore, he does not have immunity for his actions that incited the January 6th riots at the Capitol and can thus be held accountable for them in civil court. 

With the Senate failing to convict Trump for his role in inciting the January 6th insurrection at the U.S. Capitol, it is left to the criminal and civil courts to hold the former president accountable. Despite the fact that presidents have special immunity that protects them from criminal prosecution and civil litigation, taking a closer look at this immunity and the Court’s precedent surrounding it reveals that Trump may not be immune to civil litigation for his actions that incited the January 6th riot.

[1] Annie Karni, “N.A.A.C.P. Sues Trump and Giuliani Over Election Fight and Jan. 6 Riot,” The New York Times, February 16, 2021, https://www.nytimes.com/2021/02/16/us/politics/naacp-sues-trump-giuliani-proud-boys-capitol.html.

[2] Ibid.

[3] Ibid.

[4] Erick Trickey, “The 150-Year-Old Ku Klux Klan Act Being Used against Trump in Capitol Attack,” Washington Post, February 18, 2021, https://www.washingtonpost.com/history/2021/02/18/ku-klux-klan-act-capitol-attack/.

[5] Nixon v. Fitzgerald, 422 U.S. 731 (The Supreme Court of the United States 1982); Clinton v. Jones, 520 U.S. 681 (The Supreme Court of the United States 1997); United States v. Nixon, 418 U.S. (The Supreme Court of the United States 1974).

[6] Trickey, “The 150-Year-Old Ku Klux Klan Act Being Used against Trump in Capitol Attack.”

[7] Civil Action For Deprivation of Rights. 42 U.S. Code § 1983.

[8] Karni, “N.A.A.C.P. Sues Trump and Giuliani Over Election Fight and Jan. 6 Riot.”

[9] Nixon v. Fitzgerald, 422 U.S.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.