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Using the Ku Klux Klan Acts To Indict Trump Is the Most Significant Aspect of This Case

The most important of all indictments against the former president: openly and long-time racist businessman and politician being brought up on federal charges by a very powerful civil rights enforcement tool created during the Reconstruction years.

Photo via Creative Commons // The Progressive Magazine,

There will, naturally, over the next set of hours to days to weeks be a mountain of armchair and professional commentary on what are the most compelling features of the most recent 45-page indictment handed down by a federal District Court grand jury against Trump. We’ll also get exposed to quite a bit of political handicapping into 2024, an eye-squinting attempt - looking into the future - at understanding how these legal troubles will influence the shape and contours of next year’s presidential election. The broader public will also struggle to simply keep up with it all: the daily and overwhelming deluge of breaking news about Trump’s legal woes and Trump’s poll standing including his chances at winning the Republican primary.

All of the above is important. But, public discourse typically has a way of veering us off course from deeper understandings of a subject, as well as insights into even more critical items. This is, yes, a rather stunning and, to observers of history, frightening development. One might argue that it is the American justice system’s most extreme test ever. How does it, truly, hold a former president and also losing presidential candidate accountable for what we’ve all seen are clearly destructive actions towards the republic? This is the first time ever and if pulled off correctly it will set a new (and needed) standard.

But, already, the larger or “mainstream” public conversation on this is missing key parts that some of us believe are a bit more essential. Several thoughts …

Using The Klan Acts

Kudos to the Washington Post for a full feature story on how special counsel Jack Smith used what was formerly and rather popularly known as the "Klu Klux Klan Acts” to prosecute Trump in this particular round of indictment. You should read it today if you read anything else. This is what makes it the most important and truly ironic of all indictments against the former president: an openly and long-time racist businessman and politician being brought up on federal charges by a very powerful civil rights enforcement tool created during the Reconstruction years (which they never really teach properly in high school). As the Post reports, Smith is using …

… Section 241 of Title 18 of the U.S. Code, [which] was originally adopted as part of the Enforcement Act of 1870. It was the first in a series of measures known as the Ku Klux Klan Acts designed to protect rights guaranteed by the 13th, 14th and 15th amendments, collectively called the Reconstruction Amendments. Section 241 makes it a crime to ‘conspire to injure, oppress, threaten, or intimidate any person’ exercising a right protected by the Constitution or federal law.

In this case, the attempted overturning of an election through use of conspiracy, subversion, and the armed force which all culminated into the Jan. 6th terrorist attack on the U.S. Capitol is clearly a violation of our collective civil and voting rights - or, the civil and voting rights of those who lawfully voted against the standing president (Trump) at that time. This activity is a standard democratic activity supported by the Constitution. Trump, along with co-conspirators and the Republican Party, attempted to overturn those results.

Revisiting Reconstruction

Smith’s decision to use the Klu Klux Klan Acts in his full-steam-ahead federal prosecution of Trump, it’s now that time for a full public revisitation of what happened during Reconstruction. The American memory on that is foggy on that, particularly these days, so we could all use the history lesson. This indictment comes at a very serious inflection point where Black history curriculum is being systematically and rapidly removed from schools. Understanding Reconstruction - and, of course, the years of slavery, the beginning of modern capitalism and the Civil War - offers us all the critical and necessary insights on what just happened with this indictment. Maybe start here for a summary and then dig deeper with these essential texts. But, yes, many have been waiting for a long-time for someone or some legal authority to lean on the use of the Klan Acts in this situation, just as there has been a gradual movement to remove Trump from the ballot under Section 3 in the 14th Amendment because he engaged in “insurrection.”

Disqualification From The Next Election

Which leads us to that other conversation pundits, politicians, policymakers and the general public have been mightily dismissive about since the Jan. 6th insurrection took place two-years ago: Use of the Disqualification Clause. If Smith is using Reconstruction Era amendments to prosecute Trump then policymakers and election officials in multiple states should have already, by now, looked into the removal of Trump from the ballot pursuant to Section 14.3 of the Constitution. Advocacy organization Free Speech for People has been pitching this for a while now, arguing that

… Trump’s incitement of the January 6th insurrection makes him ineligible for any future run for office.

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Momentum has been growing in that direction, but not fast enough because too many people either believe a clause this simply stated doesn’t exist or conventional thinking around the Constitution prevents literal interpretation. Yet, Section 3 in the 14th Amendment is rather clear about Trump’s ineligibility …

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The hope here is that Smith’s use of Reconstruction Era law can trigger or fuel election officials - on the state and local level - to consider the removal of Trump from their ballots. Let’s see if they move on that. Voters should start asking them about that, too.

The Myth of Meritocracy

Let’s talk more about this: If we’re to just let losing candidates weave myths and lies in their favor at the end of every election so they can always reverse legitimate election results, how is that a democracy? That’s called poor losers. And, how exactly is that an example of a society operating on the winner-loser “meritocracy” system the American affluent class loves to regularly push? A related conversation is on “fairness,” another concept Americans regularly and lovingly push as though we conceived it. The judicial system itself is also on trial as a skeptical and wary public (already soured on the Supreme Court) watches the preferential treatment wealthy political elites such as Trump receive when an indictment is dropped. There’s no jail time. He gets bond. There’s no mugshot. He appears to receive softened treatment compared to, let’s say, Black man who would have engaged in either similar or much lesser crimes. This is one factor driving Fulton County, Georgia sheriff Patrick Labat’s thinking on the matter as he awaits another possible 2020 election-related indictment from Fulton County District Attorney Fani T. Willis …

“Unless someone tells me differently,” the sheriff, Patrick Labat, said on Tuesday, his office would follow “normal practices, and so it doesn’t matter your status. We’ll have mug shots ready for you.”

Watch the Judges

Lastly, we haven’t really been watching the federal judges presiding over or ruling on this labryinth of Trump cases. News outlets fail to report on that regularly. For example: Few Americans realize that federal Florida District Court judge Aileen Cannon, who’s overseeing Trump’s very troubling sensitive documents case - which appears to involve levels of cover-up and espionage - is actually a Trump judicial appointee. There is a general dearth of public awareness and education around how federal judges become judges, with very few Americans understanding how that system operates. Only 47 percent of Americans (less than half) can name all three branches of the federal government, meaning most don’t know the judiciary or how it functions or the federal judge nomination process which starts with presidents and then snakes its way through the Senate for confirmation.

Knowing the judges and which president appointed them is useful in understanding the inevitable political dynamics that will show up in that courtroom. It is completely misleading to say courts are non-political; judges started off with political backgrounds or they wouldn’t have ended up on a federal bench had not a particular partisan president didn’t feel comfortable enough nominating them. We saw a quick flash of partisan politics perhaps operating last week in the last-minute collapse of Hunter Biden’s plea deal as a Trump-appointed judge overseeing that case, Maryellen Noreika, put it on hold. It’s important to note that the federal District Court judge now overseeing Trump’s insurrection case, Tanya Chutkan, is not only a President Obama appointee, but is also a Black woman. And she’s also been very rigid and candid, refreshingly so, in her views on Jan. 6th insurrectionists. This clearly appears not to work in Trump’s favor. But, then again, he and his co-conspirators should have never engaged in insurrection in the first place if they didn’t want to end up in this position.

[Formerly a political strategist who had worked for mayors, state legislators, and members of Congress, Charles Ellison’s radio career started on SiriusXM’s “POTUS Channel” as host of the show, “Black Policy.” Years later, that experience morphed into “Reality Check,” a daily, public-affairs broadcast that highlights political and policy issues vital to Black communities in Philadelphia and elsewhere, on WURD, Pennsylvania’s only Black-owned talk-radio station.

Ellison also runs ecoWURD, the first Black-owned media outlet dedicated to coverage of environmental and climate issues. In addition, he’s lead adviser to the Council of State Governments (East) Council on Communities of Color. He's also principal of B|E Strategy, and publisher of the]