By JOHN F. BANZHAF. Originally published at ValueWalk.
Trump Sued For Causing The Riot; Criminal Complainant Had Predicted Just Such a Law Suit
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Representative Bennie Thompson Sues Trump For Causing Riot
WASHINGTON, D.C., (February 16, 2021) – As predicted and encouraged by the public interest law professor whose complaints triggered two separate criminal investigations of Donald Trump in Georgia, Representative Bennie Thompson, Democrat of Mississippi, has filed a civil law suit against Trump, as well as his personal lawyer Rudolph W. Giuliani.
Law professor John Banzhaf had predicted that such a civil law suit would soon be filed after the Democrats lost their impeachment case against Trump in the Senate.
While there are several criminal investigations of Trump now underway – including two triggered by formal criminal complaints by Banzhaf – a major problem of this route is that every element of the crimes must be proven to the very high standard of proof, beyond a reasonable doubt.
But a civil trial would avoid those problems because the proof need only meet the much lower standard of a preponderance of evidence (more likely than not).
The Proof
Also, to prove that Trump caused the riot, a major potential stumbling block, plaintiffs need only show – under the “but for” test – that but for Trump’s speech, the riots probably would not have occurred.
The fact that there may have been other causes – e.g., those who planned or financed the rally at which Trump spoke, individuals or organizations that pre-planned to engage in violence, etc. – is irrelevant, since civil tort actions recognize that harm may be caused by several different factors.
In such a situation, each factor – e.g. Trump, the Proud Boys, etc. – would each be liable for the entire amount of all the damages which occurred under the concept of joint and several liability.
Although the Thompson law suit primarily focuses on a 19th century Ku Klux Klan Act, Banzhaf points out that many other civil causes of action (torts) would be available to members of Congress who wished to sue Trump for causing a riot.
These include, he says, destruction of property, trespass to their offices, false imprisonment (being forced to hide for extended periods of time), and/or intentional infliction of severe emotional distress.
Below is a statement issued by Banzhaf before the Thompson law suit was filed.
Trump “Morally Responsible,” Now Civilly Liable Also; Will Democrats Who Believe This Now Dare Take Him to Court?
WASHINGTON, D.C. (February 15, 2021) – U.S. Senate Minority Leader Mitch McConnell has publicly stated that Donald Trump is “practically and morally responsible” for the January 6th riot, a view apparently shared by Democratic members of Congress.
Indeed, McConnell went on to remind his Democratic colleagues that Trump “is still liable to be tried and punished in the ordinary tribunals of justice”; that “President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run”: and that fortunately “we have civil litigation” and “former presidents are not immune from being accountable.”
So, now that Trump has been acquitted in the Senate, it will be interesting to see if any of those who voted to charge him with causing the riot – and especially the House managers who argued so forcefully for that very assignment of blame – will have the courage of their convictions, and dare to try to prove their assertions in a court of law before an impartial judge or jury, says public interest law professor John Banzhaf.
Impact Of A Successful Civil Action
Such a civil action, if successful, would vindicate their repeated, disputed, and just-rejected claims that Trump caused the destructive riot.
It could also assure that he does not escape all consequences for his actions, since the damages from the riot – including those from several wrongful death actions – could easily amount to tens of millions of dollars, plus even more in punitive damages.
But if not a single Democratic member of Congress comes forward to bring such a civil action – probably, and most effectively, as a class action law suit – Trump may well get away with what he has done, since the Senate has just acquitted him. Absent such a suit, Democrats might also be perceived as hypocrites who wrongfully and baselessly accused him of causing a riot for largely political reasons.
In any criminal trial for inciting the riot, prosecutors would face the daunting task of proving beyond any reasonable doubt that Trump’s various actions caused the riot and the resulting harm.
In stark contrast, Trump can be found liable for enormous damages in a civil tort action simply upon proof that, without his actions, the riot probably would not have occurred.
In other words, if “but for” his actions the riot probably would not have occurred, Trump can be held liable for the entire amount of all the damages, even if many others (e.g., those who financed the gathering, groups which planned the attack beforehand, the individual rioters themselves, etc.) are also found to be causes.
In other words, in a civil action, there can be several different causes, and each can then be sued for the entire amount of resulting damages.
More importantly, plaintiffs in a civil action would only have to prove this “causation in fact” element of the tort, like Trump’s state of mind, by the very low standard of “preponderance of evidence” (more likely than not) rather than the much higher hurdle of proving it beyond a reasonable doubt in a criminal proceeding.
Juror Nullification
A criminal trial might also prove unsuccessful because of “juror nullification” under which any individual juror could prevent a “guilty” verdict by simply voting “no” for any reason; for example, affection for or loyalty to Trump, doubts whether the proof met the very high evidentiary standard for establishing a crime, a belief that putting Trump behind bars would be unfair, or might cause further division, etc.
On the other hand, a civil class-action law suit should be simple to prepare, since the House managers did virtually all of the work by laying out a very powerful case, with overwhelming evidence, that Trump was responsible for (“caused”) the resulting riot, even if their case floundered on other grounds such as lack of jurisdiction for the Senate to try and convict someone no longer in office, says Banzhaf.
Lack of jurisdiction would obviously not be problem for trials in the District of Columbia, where plaintiffs can also count on having very few jurors sympathetic to the former president.
Even members of Congress who did not themselves suffer physical injury or damage to their property could still sue because the riot caused many of them to be effectively imprisoned in their offices, or in other areas to which they were forced to hide to avoid real threats to their physical well being, since that would satisfy the elements of the civil tort of “false imprisonment,” says Banzhaf, who teaches that subject.
Indeed, he notes, that very theory – that persons can sue for false imprisonment when illegal actions make it difficult or dangerous for them to leave where they are – is being used in law suits inspired by Banzhaf by drivers who were stuck for extended periods of time in their cars when the George Washington Bridge was illegally blocked.
Other members of Congress had their papers and other property destroyed, and in many cases their offices invaded; actions which would also constitute civil torts for which they can seek damages.
Congress Members Can Also Sue
Finally, since many members of Congress have testified that they were terrified for their bodily safety or even lives during the riot, they could also sue under the tort of “intentional infliction of severe emotional distress” since anyone found to have been a cause of the riot would obviously have known that it would cause real and serious fear among the many members of Congress in attendance at the time.
This is especially true since video recordings clearly show the rioters calling out some individuals by name, chanting about “hanging” or “getting” some members, etc., and many members huddled under desks and/or hiding in various places.
In short, Democratic members of Congress can help salvage their reputations damaged by insisting on bringing an impeachment effort which was doomed to failure from the start – and which has been termed mere “kabuki theater,” an exercise in futility, and much “sound and fury signifying nothing” – by convincing a jury to accept their assertions by a simple preponderance of the evidence in a civil trial proceeding.
On the other hand, if not even one single member of Congress follows up this resounding loss in the Senate by bringing a civil tort action against Trump, many voters may well conclude that they do not have the courage of their own convictions, and that the case is so weak that they dare not bring it to court where they cannot blame politics if the verdict does not vindicate their claims, argues Banzhaf.
House manager Jamie Raskin claims – apparently in an effort to justify proceeding with an impeachment trial which was doomed from the very start when almost all Republican senators voted that the Senate had no jurisdiction to find a private citizen guilty in an impeachment trial – that he “demolished” Trump’s lawyers and won in the “court of public opinion,” but that hardly explains or excuses not even trying to win in a real court if the case is anywhere near as strong as he claims, argued Banzhaf.
“Yes, I would be willing to help bring such an action,” says Banzhaf, who recently was called “a king of class action lawsuits,” and who successfully sued former vice president Spiro T. Agnew when he was able to avoid prison, and would have been permitted to keep all the money he received in bribes had the professor not engineered a law suit which succeeded in getting all the bribe money back with accumulated interest.
Prof. Banzhaf has also been called “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” the “Dean of Public Interest Lawyers,” “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” and an “Entrepreneur of Litigation, [and] a Trial Lawyer’s Trial Lawyer.”
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