On Tuesday, in response to the federal case brought by special prosecutor Jack Smith over Trump’s alleged role in the January 6 insurrection, Trump threatened a new round of violence – or “bedlam” – if he loses the election. In early February, the US supreme court will also rule on the Colorado supreme court’s decision to disqualify Trump from the state’s ballot for his part in the insurrection.
The two cases might appear to be disconnected, but they are inseparable in law and history. They are united by Congress’s Reconstruction-era action to enforce the 14th amendment’s extension of constitutional rights against the former Confederates’ campaign of racial and political violence – the Ku Klux Klan Acts of 1870 and 1871.
Smith has indicted Trump under the KKK Act, which incorporates the 14th amendment, section 3, of the constitution. The Colorado court’s disqualification comes under the third section of the amendment, which disqualifies from office anyone who has engaged in insurrection against the United States. There are clear and compelling reasons why Trump has been indicted under the KKK Act and disqualified under the 14th amendment, section 3. Those reasons are stated in the indictments and court rulings.
Trump has been charged on the same grounds that Klansmen were prosecuted, not only during Reconstruction but also during the civil rights era of the 1960s, and he has been removed from the ballot on the same basis as Confederate traitors were removed from elective office. Complacent commentators have dismissed the charges that Trump has brought on himself, hoping to calm the waters by vainly demonstrating their fair-mindedness. But the law is not somnambulant forever and the historical reality underlying it cannot be erased as it was in the aftermath of the dismantling of Reconstruction in a ‘lost cause’ of false conciliation.
Through the civil war amendments, the newly freed slaves began to establish themselves as citizens with equal protection under the law and the right to vote. By 1867, in 10 of the 11 former Confederate states, 80% of eligible black men had registered to vote. Blacks and whites enacted new state constitutions and elected Republicans to state and federal offices, including many African Americans. Almost at once they were subjected to a reign of terror.
The Ku Klux Klan, established in 1866 and led by former Confederate officers, mobilized to deprive black Americans of their rights, and spread across the south to reimpose white supremacy. Reconstruction was subverted by a violent counterrevolution proclaimed as “Redemption”. Nearly 10% of the black delegates to those constitutional conventions were murdered.
In 1867, the Congress passed the Military Reconstruction Act, dividing the south into five districts to be governed under the authority of Union generals. No former Confederate state could be considered legitimate or receive congressional representation until it held a democratically elected convention that adopted the 14th amendment. The Military Reconstruction Act excluded from the conventions anyone who fell under section 3 of the 14th amendment, which barred those who had taken an oath to the constitution but violated it by engaging in insurrection from holding many offices in the postwar United States.
When states applied for readmittance the Congress authorized each one with legislation stating they had qualified under section 3. Four southern states – South Carolina, Texas, Arkansas and Alabama – incorporated section 3 into their new constitutions.
The state of Georgia was readmitted on this basis in 1869. But as President Ulysses Grant stated in his first annual message to the Congress later that year, white Democrats in the Georgia legislature “in violation of the constitution which they had just ratified (as since decided by the supreme court of the State) … unseated the colored members of the legislature and admitted to seats some members who are disqualified by the third clause of the fourteenth amendment to the Constitution – an article which they themselves had contributed to ratify”.
As a result, the Congress deprived Georgia of its federal representation until members of the legislature swore an oath of eligibility or had been cleared from the disability by Congress, as stipulated by the 14th amendment. From the start, Congress’s actions made it clear that when section 3 was ratified, it came into force carrying real consequences for violations.
Behind these removals and oaths was a surging Klan that staged hundreds of violent nighttime raids, lynchings, rapes, church and school burnings, and whippings of black citizens, as well as assassinations of white Republicans. The Klan is estimated to have killed anywhere from 2,500 to 20,000 people during Reconstruction.
The grand dragon of the KKK, the former Confederate general John B Gordon, testified before a congressional committee to disclaim any knowledge of the Klan: “I do not know anything about any Ku Klux organization … We never called it Ku Klux, and therefore I do not know anything about Ku Klux.” By contrast, the Klan’s grand wizard, the former Confederate general Nathan Bedford Forrest, who ordered the massacre of black troops after their surrender during the war, explained that blacks “were becoming very insolent”, and that “this [Ku Klux Klan] was got up to protect the weak, with no political intention at all”.
The KKK Act was Congress’s attempt to stamp out the Klan’s domestic terrorism. It criminalized using “force, bribery, threats, intimidation, or other unlawful means” to interfere with any citizen’s right and ability to vote.
Striking at former Confederates who were commanding the Klan, the act then prescribed imprisonment of “any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States … ” Under the KKK Act, Grant’s attorney general, Amos Akerman, successfully prosecuted more than 1,100 cases against members of the Klan, effectively breaking it up.
In the 1872 campaign, a large faction of the national Republican party opposed the KKK Act and advocated reconciliation with the south. They called themselves the Liberal Republican party and aligned with the Democrats against Grant’s re-election. The Amnesty Act of 1872, lifting the disability of section 3, was a sop to outflank the Liberal Republicans and marked the beginning of the end of Reconstruction. Still, Grant was re-elected, winning eight southern states with a black-white coalition.
Post-Klan terrorist organizations – the White League in Louisiana, the White Liners in Mississippi and the Red Shirts in South Carolina – sprang up across the South to use paramilitary force to seize state governments. The Republicans lost their House majority in 1874; Democrats cut the justice department’s budget for enforcing the KKK Act. The 1876 presidential election was decided in a literal smoked-filled room through a deal in which the Republican candidate, Rutherford B Hayes, would become president in exchange for the withdrawal of federal troops from the south.
The final contemporaneous effort at an enforcement act, the Federal Elections Act of 1890, drafted by Congressman Henry Cabot Lodge of Massachusetts, would have provided US marshals to secure elections in the states, but was defeated in the Congress. In 1896, the supreme court ruling in Plessy v Ferguson upholding segregation was the capstone on a series of court decisions eviscerating Reconstruction laws. Not until Plessy was overturned in Brown v Board of Education in 1954 with the rise of the civil rights movement did the civil war amendments and their enforcement stir to life again.
In 1964, three civil rights workers were murdered by members of the Ku Klux Klan and the local police in Neshoba county, Mississippi. The justice department brought the case against 18 killers under the federal conspiracy statutes of the KKK Act before a grand jury presided over by federal judge William Harold Cox, a diehard segregationist. Cox dismissed the charges brought under section 241 of the KKK Act – a “conspiracy against rights”, extending federal criminal jurisdiction over private actors interfering with other citizens’ “free exercise of enjoyment of any right or privilege secured to him by the Constitution or laws of the United States”.
The circuit court upheld Cox on the ground that section 241 does not include rights protected by the 14th amendment. The justice department appealed to the US supreme court, represented in the case by the solicitor general, Thurgood Marshall, who had argued the Brown case for the NAACP Legal Defense Fund.
On 28 March 1966, in United States v Price, et al, known as the Mississippi Burning case, the court ruled unanimously that section 241 was applicable. The decision, written by Justice Abe Fortas, reviewed the history of the civil war amendments. “We think that history leaves no doubt that, if we are to give Section 241 the scope that its origins dictate, we must accord it a sweep as broad as its language,” he wrote. “In this context, it is hardly conceivable that Congress intended Section 241 to apply only to a narrow and relatively unimportant category of rights. We cannot doubt that the purpose and effect of Section 241 was to reach assaults upon rights under the entire Constitution, including the Thirteenth, Fourteenth and Fifteenth Amendments, and not merely under part of it.”
It is precisely under section 241 of the Ku Klux Klan Act, upheld by the supreme court in an opinion that establishes the broadest possible application, that the justice department indicted Donald Trump on 1 August 2023. The indictment was not restricted to Trump’s activities during the January 6 US Capitol riot, but to the period of his conspiracy to stage a coup, a span that began after the election to the day he left office.
To wit, count 4: “From on or about November 14, 2020, through on or about January 20, 2021, in the District of Columbia and elsewhere, the Defendant, DONALD J. TRUMP, did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States – that is, the right to vote, and to have one’s vote counted.”
The special prosecutor then made clear that the law that Trump had violated was the pertinent section of the KKK Act: “In violation of Title 18, United States Code, Section 241.”
Trump’s indictment under the KKK Act is the core of the charges against him. To convict him, there would be no need to determine definitively whether his incitement at the White House rally on 6 January 2021 makes him responsible for the assault on the Capitol, whether he obstructed a federal procedure or his state of mind during the insurrection. He would be held accountable for his centrality in the entire broad conspiracy under section 241 – under an expansive interpretation already decided by the supreme court. Moreover, section 241 does not require an overt act in furtherance of “conspiracy against rights”, though it does require intent. It also does not require an act of violence.
The 14th amendment, section 3, provides a disqualification for insurrectionists. It was a self-executing document, just as was the 13th amendment abolishing slavery. The Congress enacted a series of enforcement acts – the first and second Reconstruction Acts, and the first Civil Rights Act. As President Grant and the Congress stated in the crisis over Georgia in 1869, the only means to remove the “disability” of disqualification was by an act of the Congress as stipulated in section 3 – an amnesty. The very existence of a remedy providing for the removal of the disqualification implies that the law is self-executing, as Grant and the Congress understood.
The Ku Klux Klan Act, which specifically included section 3, was a further instrument to deal with a new insurrection. During Reconstruction that section was used within the KKK Act to suppress precisely that insurrection. Grant and the Congress knew that the 14th amendment was not limited to the insurrection that forced the civil war, but also was a governing constitutional document applicable to future insurrections.
None of Trump’s defenders have suggested pursuing the proper remedy that is given within section 3, namely a congressional amnesty for him. To do so would be an admission that he was guilty of engaging in an insurrection against the United States. There would be no need for an amnesty unless there was a crime. An amnesty would be analogous to a pardon. But, with flagrant irresponsibility, virtually all of the Republican presidential primary candidates have offered that they would pardon Trump. They signaled that he has committed crimes and yet must be unaccountable. Still, despite their own logic, or illogic, they avoid discussing an amnesty.
A number of commentators opine that Trump must not be held to account because it would arouse his enraged followers and violate the spirit of direct democracy (never mind the spirit of the law). Others assert that liberals who speak about the rule of law are perverse elitists who, by supporting Trump’s disqualification, reveal their true contempt for the people’s will. They urge relief for Trump as a naive gesture of good faith, as if even-handedness will encourage tolerance and pluralism. In short, the mechanism for the preservation of democracy must be withheld in the name of democracy.
Meanwhile, at the federal appeals court hearing on his claim that he is immune from all prosecution because he is exempt from the 14th amendment, Trump threatened that if his trials proceed, if he fails to be granted “absolute immunity”, and if he loses the election, there would be “bedlam” – yet another incitement to insurrection.
Taking his 14th amendment argument to its logical conclusion, his attorney, D John Sauer, argued before the three-judge panel that Trump could order the military to assassinate an opponent and be protected from indictment unless he was first impeached and convicted by the Senate. His statement attempted to elevate to a constitutional immunity Trump’s notorious remark in 2015: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” Trump’s attorney seemed unaware or indifferent that by the same logic President Biden could with impunity order the assassination of Trump.
In 1927, Trump’s father, Fred Trump, 21 years old, was arrested, according to police records, at a Ku Klux Klan rally in Queens, New York, where 1,000 robed and hooded Klansmen marched through the streets. “This never happened,” Donald Trump said when the story reappeared in 2022. “Never took place. He was never arrested, never convicted, never even charged. It’s a completely false, ridiculous story. He was never there! It never happened. Never took place.”
The Trump trials have put the civil war and Reconstruction amendments on trial again – “the results of the war”, as Grant called it. Trump’s indictment under section 241 of the KKK Act tests the federal government’s ability and willingness to secure basic voting rights and defend the constitution. Or else there will be “bedlam”.
Sidney Blumenthal is a Guardian US columnist. He is former senior adviser to President Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
