President Donald Trump's return to the Oval Office this week comes much to the dismay of those who hoped his criminal prosecutions would result in accountability for his alleged crimes. It is also a disappointment to those who hoped that merely seeing the flurry of criminal charges against him, especially former special counsel Jack Smith's 2020 election subversion case, would convince enough Americans of the threat he poses to democracy.
But in the wake of Trump's now-moot criminal cases in Washington, Florida and Georgia, alongside his unconditional discharge in the New York hush-money case, a spate of lawsuits are still seeking to hold Trump, the Proud Boys and other defendants to account for the role they played in the Jan. 6, 2021 attack on the U.S. Capitol.
One such civil case, Smith v. Trump, filed in August 2021 on behalf of eight U.S. Capitol police officers harmed during the Jan. 6 riot, also seeks to prevent further political violence under the new administration, with one of its lead litigators arguing it may fill the gap left by Smith's own defunct prosecution of Trump. While they hope a potential ruling will set the record straight on the impact of Jan. 6, the plaintiffs also seek damages and for a jury to find Trump liable for conspiracy, among other violations of federal and district laws.
Edward Caspar, co-lead litigator and acting co-chief counsel for the Lawyer's Committee for Civil Rights Under Law, argues that the lawsuit is one of the last standing legal efforts to hold Trump accountable.
"Civil liability is really the only way that can address [the harm to officers], and it might be the last leg standing, but it's certainly one of the most important means of securing accountability for the events of Jan. 6," he told Salon in a phone interview.
That importance, he added, is underscored by Trump's 2021 impeachment hearings, return to the presidency and his immediate pardoning of some 1,500 convicted Jan. 6 rioters.
About 140 police officers were assaulted during the attack on the Capitol, including around 80 members of U.S. Capitol Police, according to the Department of Justice. One Capitol police officer, Brian Sicknick, suffered from a stroke and passed away following injuries he sustained while on-duty.
The eight Capitol police officers suing in Smith v. Trump argue that they suffered significant physical, psychological and emotional injuries as a result of Trump and his allies' actions to block the certification of the 2020 election. They say they were "violently assaulted, spat on, tear-gassed, bear-sprayed, subjected to racial slurs and epithets, and put in fear" as they "risked their lives to defend the Capitol from a violent, mass attack," according to the complaint.
Those injuries, they wrote, persist to this day.
Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, said in a phone interview that Smith v. Trump, alongside the other Jan. 6 civil cases, could end up being among "the most important cases out there" precisely because Trump's criminal charges have disappeared.
"With courts making findings that this activity was within Trump's capacity as a candidate and not in his capacity as president, it could be that the civil cases are where we see liability," McQuade told Salon. She added that the 1997 Clinton v. Jones decision holds that, unlike in criminal cases, a sitting president "can be forced to defend a civil lawsuit."
In addition to seeking injunctive relief, and compensatory and punitive damages for the harm inflicted upon them, the plaintiffs ask that a jury find the defendants liable for six offenses, ranging from conspiring to interfere with civil rights to violating a D.C. bias-related crimes act, assault and battery.
They accuse the defendants, in part, of violating the Ku Klux Klan Act, an 1871 law that criminalizes "a conspiracy to use force, intimidation or threats to prevent federal officers from doing their jobs," according to Darrell A.H. Miller, a scholar of civil rights and constitutional law at the University of Chicago.
"In the 19th Century, the targets of violence and intimidation were the freedmen and their federal government allies in the South," Miller told Salon, arguing that the law addresses just the kind of circumstances that were presented on Jan. 6, 2021. "In the 21st century, the target was those responsible for securing the peaceful transfer of power in the very seat of national government."
The plaintiffs were among the group of officers who worked to secure the Congress and protect lawmakers and their staff from the mob that broke into the Capitol. In the lawsuit, they describe suffering physical injuries from being physically attacked by rioters, being exposed to noxious pollutants deployed by the attackers and suffering emotional harm from the experience.
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McQuade compared the plaintiffs' lawsuit to the civil cases that arose from the 2017 "Unite the Right" rally in Charlottesville, Va., where a far-right terrorist killed one person and injured dozens more. At the conclusion of one such lawsuit, a federal jury found the white supremacist organizers liable for conspiracy to intimidate, harass and harm, and awarded the plaintiffs $26 million in damages.
"That is, I think, some measure not only for the individual plaintiffs to get accountability and some compensation for their losses, but I also think it allows history to record that harm occurred and that courts of law found that the law was broken," she said.
Distinguishing Smith v. Trump from the other three pending Jan. 6 civil cases is its extensive list of nearly 40 defendants, Caspar told Salon, which includes Trump, his 2020 campaign, the Proud Boys and the Oath Keepers, as well as their leaders Enrique Tarrio and Stewart Rhodes — who were both sentenced in 2023 for federal seditious conspiracy over their roles in organizing the Capitol attack.
The lawsuit has already begun its merits discovery period, in which the parties exchange relevant evidence for fact-finding regarding the claims, for the groups and individuals named in the suit. That part of the case, Caspar said, is moving forward "full steam ahead," with discovery set to end in July.
The part of the case against Trump, while on a parallel track, is progressing differently, however, due to the court considering Trump's motion to dismiss the case. Trump has repeatedly denied any wrongdoing for his actions on Jan. 6 and has argued that presidential immunity should shield him from civil liability.
Miller said that while existing precedent from the Nixon administration offers presidential immunity for official acts, the basic questions regarding Trump's ability to invoke it in these suits revolve around whether his participation in the events of Jan. 6 was in his official capacity or private capacity as a presidential candidate.
Should the case proceed to trial, however, the summer 2024 Supreme Court decision extending presidential immunity for official acts to criminal cases could "present a wrinkle" by limiting "the ability of a litigant to use information or evidence that comes from 'official' actions, which could keep a jury from seeing some evidence critical to proving the civil conspiracy," he added.
Special counsel Jack Smith found a way around that hurdle in his case against Trump. After last year's Trump v. United States decision required Smith to tailor his Jan. 6 subversion case against Trump to remove "official" acts, the prosecutor cut out an unindicted co-conspirator and allegations about Trump's interactions with his staff at the White House. References to private actions, like Trump's campaign speech on the Ellipse, which critics say incited a riot at the Capitol, remained in the superseding indictment.
Such actions already form the bedrock of the claims against the president in Smith v. Trump. In fact, a 2023 federal appellate court ruling in a related Jan. 6 lawsuit — Blassingame v. Trump — also pointed to Trump's Ellipse speech in its denial of his immunity claim, determining that he was acting in his capacity as a candidate.
The U.S. District Court for the District of Columbia consolidated Smith v. Trump, Blassingame v. Trump and four other lawsuits last year for the purposes of discovery and summary judgment on the immunity question. Because the appellate court based it's 2023 ruling on facts presented by the plaintiffs, it allowed for Trump to dispute their allegations and introduce his own facts pertaining to his immunity claim for consideration in the district court. Discovery on that matter ended last month.
Caspar said Trump's legal counsel is expected to file a brief arguing his immunity in the case by the end of this month, and the plaintiffs will submit their responses to the U.S. District Court in February.
Trump's lead attorney did not respond to an emailed request for comment.
Asked whether the lawsuit could hold Trump to any kind of account given that his criminal cases collapsed and he's returned to the White House, McQuade suggested that it could. While civil actions can come up short in dolling out justice, civil liability still offers some form of accountability in addressing harm done to plaintiffs, she said.
"In some ways, a civil judgment could help make [the plaintiffs] whole, perhaps even more so than a criminal case could," she argued, adding that, because Trump can't pardon himself or the other defendants in lawsuits, "the civil case could do a better job of holding him accountable than a criminal case could in this situation."
Caspar said the plaintiffs are hoping that by laying bear the full breadth of the "human harm" Jan. 6 caused, the case will also encourage Americans to mend their differences through the political process — and prevent that kind of political violence from ever happening again.
Physically attacking and brutalizing others just because your chosen candidate lost the election is "not something that you get to do and get away with," Caspar said, voicing what the plaintiff's hope the public internalizes from the case. "There are consequences for engaging in that kind of lunacy, and we hope that when the public sees the public evidence as a result of this trial, they'll understand the harm done to individuals and to the country by the kind of violence that took place."
But Miller said he's skeptical that would be the outcome. Given the election result, he said he doubts any judgment against the defendants — Trump included — would have an effect on the American public's perception.
Instead, he argued, "this is a lawsuit for posterity, to prevent the truth of January 6 from being erased from history."
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