In the fall of 2019, President Donald Trump and many of his associates and supporters publicly attacked Lt. Col Alex Vindman, a career military officer who testified in that year’s impeachment proceedings against the President. Under congressional subpoena, Vindman—then working at the National Security Council—testified truthfully about his knowledge of the infamous phone call in which Trump pushed Ukrainian President Volodymyr Zelensky to launch an investigation of Joe Biden. In what seemed like attempts to discredit Vindman and punish him for his testimony, Trump and others described Vindman as a spy and as disloyal to the United States. Administration officials appear to have leaked classified information to Trump’s allies in Congress to support a false narrative about Vindman’s disloyalty and, according to some reports, also attempted to block Vindman’s promotion to the rank of Colonel. Ultimately, Vindman and his brother Yevgeny Vindman were both removed from their positions at the National Security Council, and Vindman’s military career was effectively ended.
In a suit filed this week, Vindman alleges that several defendants—including Donald Trump, Jr. and Rudy Giuliani—conspired to prevent his testimony by intimidation and, when that failed, to punish him for testifying. The statutory basis for Vindman v. Trump Jr. et al. is a nineteenth-century federal statute initially enacted to address misconduct by the Ku Klux Klan.
Congress passed the Ku Klux Klan Act—more formally, the Civil Rights Act of 1871—as part of a campaign to protect federal governance against violent disruption during Reconstruction. At the time, the Klan and others frequently used violence or the threat of violence to prevent federal officials from carrying out their duties. Part of the federal response was to create civil and criminal liability for people who conspired to use “force, intimidation, or threat” to deter people from serving in federal office or to harm federal officers for doing their jobs. The Klan Act also addressed conspiracies to deter people from giving testimony in federal proceedings or to injure people for giving such testimony. Vindman argues that the former president and others engaged in both kinds of conspiracies against him. After all, he says, he was falsely attacked for doing his job as a federal officer. And he was defamed, his career wrecked, and his family put in danger, because he gave truthful testimony in a federal investigative proceeding.
If Vindman can prove the facts he alleges—most importantly, that the defendants knowingly conspired against him—then he has a strong case.
[As an aside: although the complaint alleges President Trump’s participation in the conspiracy, the former president is not named as a defendant. As a consequence, the suit is insulated against procedural delays that might arise based on claims that a president is immune from some civil lawsuits. Even if those claims lacked merit in this case, adjudicating them would consume time and effort.]
To be sure, this case is in some striking ways different from the paradigmatic cases Congress imagined when it passed the Klan Act. Most notably, the alleged conspiracy features the then-sitting President of the United States and his allies, rather than a vigilante group attacking federal governance wholly from outside the government. But the relevant language of the Klan Act in 42 U.S.C. § 1985(1) and (2) is not limited to outside conspiracies. And a conspiracy by a president and his allies to use threats and intimidation to impede an impeachment process falls within the Klan Act’s purpose to protect federal officials and federal proceedings from disruption by force, threat, or intimidation. If a senior federal official (especially including the president) and her allies can thwart the impeachment process by intimidating witnesses and retaliating against federal officials doing their jobs, then impeachment cannot serve its function within our constitutional system.
This case raises many issues, legal and otherwise, and this essay does not treat them all. But it explains the basic reasons why the two of us—respectively, a law professor with expertise in the Klan Act and a law professor with expertise in the First Amendment—conclude that Vindman has asserted claims viable enough to survive a motion to dismiss and, assuming he can prove his allegations after discovery, viable enough to prevail in the litigation.
1. Vindman’s Klan Act Claims
Vindman’s lawsuit asserts claims under 42 U.S.C. § 1985(1) and (2). Subsection (1) creates a cause of action for damages for anyone who is injured as a result of a conspiracy
“to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof … or to injure him in his person or property on account of his lawful discharge of the duties of his office.”
Subsection (2) covers conspiracies
“to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified.”
Vindman’s theory of the case is that the named defendants and others engaged in a coordinated campaign of intimidation to prevent him from giving testimony against President Trump and, later, to injure him, by ending his military career and defaming him generally, in retaliation for his having testified. That allegation, if substantiated, would state a claim under subsection (2). Because the testimony at issue was given in the course of Vindman’s duties, and also because the allegedly coordinated campaign resulted in Vindman’s losing his post at the National Security Council and ultimately his military career, Vindman’s allegations also describe a claim under subsection (1). So if the facts alleged in Vindman’s complaint are true—and on a motion to dismiss, a court must regard them that way—then Vindman has stated a valid claim under the Klan Act, and the case should proceed to discovery.
Probably the central issue in the case will be whether Vindman has adequately pleaded (and later, adequately proven) that the defendants engaged in a conspiracy. For these purposes, a conspiracy entails (1) an agreement between two or more persons (2) to participate in an unlawful course of conduct, and (3) an overt action in furtherance of the common scheme by at least one of the parties to the agreement. As is usually true in conspiracy cases, the complaint does not include smoking-gun evidence of an explicit agreement among the defendants: Vindman points to no memorandum of understanding between Donald Trump Jr. and Sr. saying “Let’s defame and threaten that Vindman guy so he doesn’t testify.” Meritorious conspiracy complaints rarely adduce evidence that direct, because conspirators rarely leave records that clear and make them publicly available. Instead, as is normal in such cases, Vindman points to a mass of circumstantial evidence suggesting that the conspirators reached and acted on a common understanding.
Some of these pieces of evidence adduced in the complaint are known, specific communications among the defendants about the impeachment proceedings. Others are about the way that different defendants made identical or very similar public allegations about Vindman close together in time, as if they had been given a common set of talking points. And although Vindman adduces no smoking-gun memo of conspiratorial understanding, the case even at this early stage features some evidence suggesting more powerfully than is normal in conspiracy cases that alleged conspirators were in fact pursuing the goals that Vindman alleges. One example is President Trump’s public threat of “big consequences” for anyone who cooperated in the impeachment proceedings—a threat that was quickly followed by public allegations from other alleged conspirators that Vindman was a spy. The White House also reportedly took the “extraordinary step of distributing talking points to allies of the president trashing” Vindman. The House Intelligence Committee’s Impeachment Inquiry Report concluded that the president “attacked and intimidated witnesses” including Vindman in a manner that “rais[ed] grave concerns about potential violations of criminal laws intended to protect witnesses appearing before Congressional proceedings” (pp. 32, 259). Within days after the impeachment trial, both President Trump and Donald Trump Jr. said openly that Vindman and his brother were being removed from their NSC positions because of the testimony Vindman provided to Congress. ABC News’ White House reporter Jonathan Karl wrote in his book, “The president made no secret of the fact that the firings were reprisals for cooperating with Congress during the impeachment hearings.”
Crucially, Vindman does not have to plead that the defendants threatened physical violence against him. The Klan Act’s language of “force, threat, or intimidation” could be interpreted to require the possibility of violence somewhere in the picture if understood to mean “force, or the threat of force, or intimidation founded on an implied threat of force.” But that is not how courts have read the statute, and properly so. “Threat” and “intimidation” appear in the statute as separate and sufficient ways conspirators can coerce people, rather than only as modifications of “force.” Thus, conspiracies that threaten economic coercion by boycotting a business[1] or jeopardizing someone’s employment[2] can qualify as actionable under the Klan Act, as do conspiracies that intimidate their victims by using or threatening law-enforcement investigations.[3] So can conspiracies that intimidate plaintiffs by publicly and falsely suggesting that they are linked to criminal behavior.[4]
Moreover, the requirement that Vindman show that the conspirators used “force, intimidation, or threat” applies only to his claims that the conspirators intended to deter him from testifying and otherwise discharging his duties. For Vindman’s claim that he was injured as a result of his having actually testified and otherwise discharged his duties, he need only show that his injuries resulted from a conspiracy with that purpose. Under the language of the Act, a conspiracy to have people defamed, fired, or otherwise injured because they testified in a federal proceeding is actionable, whether or not the conspirators used methods amounting to “force, intimidation, or threat.”
One relatively novel question that the court must confront when addressing Vindman’s claims of witness-intimidation under subsection (2) is whether an impeachment proceeding counts as a proceeding in a “court of the United States.” The impeachment hearing where Vindman testified took place before a committee of the House of Representatives, not in an Article III court. To date, there is no case law addressing the question of whether an impeachment proceeding comes within the proceedings that subsection (2) covers. One could certainly argue that the Klan Act’s reach on this point is limited, by its language, to courts, and that impeachment takes place within the legislative rather than the judicial branch. But the better resolution would recognize that the term “court of the United States” in the Klan Act carries a broader meaning—one that understands that an institution that mostly functions as a legislative body can sometimes also be a court.
The terms in which the Constitution describes impeachments reflect the idea that the Senate functions as a court in that domain: Article I, section 3 says that the Senate has the power to “try” an impeachment, and person who loses the trial is “convicted,” and the outcome is called a “judgment.” The Senate in impeachment proceedings describes itself as sitting “as a court of impeachment,” with a judicial officer brought in to preside. The Senate sitting as a court of impeachment is not an Article III court, but it is properly understood as a court “of the United States” for many purposes, the Klan Act included.
2. First Amendment considerations
As noted, the aim of the conspiracy alleged by Lt. Col. Vindman was to threaten and intimidate him and others called to testify in the impeachment trial. According to the complaint, this conspiracy succeeded in inflicting substantial reputational and economic harm on Vindman through false accusations and illegal behind-the scenes actions, such as selective leaks of classified and private personnel information. Although the alleged conspiracy was largely carried out through synchronized public statements discrediting Lt. Col. Vindman, the First Amendment protection of speech poses no bar to Vindman’s claims under the Klan Act.
The personal attacks on Vindman advanced through cable television and social media might be dismissed as normal (if ugly) political mudslinging protected by the First Amendment. What distinguishes the attacks in this case is the conspirators’ unlawful purpose—their intent to deter Lt. Col. Vindman through intimidation from discharging his lawful duties and to injure him for having testified “freely, fully, and truthfully.” Hurling ad hominem attacks against a political enemy is generally protected by the First Amendment; hurling defamatory attacks that knowingly misrepresent the facts for the purpose of threatening, intimidating and injuring a federal official for testifying truthfully is not.
Through the Klan Act, Congress exercised its lawful power to protect federal officers and federal proceedings. By the plain meaning of its terms, the Act’s imposition of liability on those who intimidate or threaten is aimed at conduct and communications that instill fear for purposes of producing action or inaction, and as discussed above, courts have recognized that a wide range of actions intended to intimidate may give rise to Klan Act liability, including those that inspire fear of economic harm, legal repercussions, privacy violations, and even surveillance.
A regulation of conduct can, of course, become subject to a degree of First Amendment scrutiny when the regulated conduct itself is expressive.[5] But “[v]irtually everything humans do requires the use of language.”[6] A regulation aimed at conduct does not become subject to First Amendment scrutiny “merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”[7] Indeed, the Supreme Court has repeatedly recognized speech integral to illegal conduct as one of the “historic and traditional categories” of speech excluded altogether from First Amendment protection.[8]
Even if viewed as infringing on expressive communications,[9] the Klan Act imposes liability for intimidation, threats, and retaliation without regard to either the subject matter or viewpoint of any particular speech used to threaten or intimidate. As such, the Act would be subject to, and survive, what the courts call “intermediate scrutiny,” because it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.[10]
Vindman’s claims also survive First Amendment scrutiny because the specific communications alleged as the predicates for Klan Act liability are themselves unprotected by the First Amendment. The speech alleged to have been undertaken in furtherance of the conspiracy includes the dissemination of a manufactured narrative of Vindman’s disloyalty and false allegations about Vindman’s conduct, including that he had disparaged the United States to foreign officials, engaged in Espionage, spied for Ukraine, and broke other laws through insubordination and misconduct. This false and misleading speech allegedly succeeded in temporarily blocking a promotion and caused the removal of both Vindman and his brother from positions at the NSC.
Such false speech causing cognizable harm to a specific individual is unprotected by the First Amendment. Indeed, the Supreme Court has long held that the types of defamatory statements alleged in the complaint, made with knowledge of their falsity or in reckless disregard for their truth, can be punished under the libel laws consistent with the First Amendment.
Of course, the complaint also alleges non-speech acts by the conspirators, including the selective leaking of classified information and private personnel information about Vindman, as well as some communications that are protected by the First Amendment. These acts and communications are relevant to establishing a “meeting of the minds” among the conspirators and proving their unlawful objective. Again, the First Amendment provides no bar to imposing civil liability on such conduct, even if defendants’ speech constitutes evidence needed to prove elements of the claim or to prove motive or intent.
* * *
Simply put, if he can prove his claims, the communications and conduct at issue in Vindman’s case are not protected by the First Amendment. Lt. Col. Vindman’s complaint alleges that actions were taken to threaten and intimidate him and others from carrying out their duties and that those actions succeeded in causing him great reputational harm and destroying his ability to serve in any national security position as punishment for his truthful testimony. If Lt. Col. Vindman can prove these claims, the First Amendment is not a barrier to his case. And the Klan Act is an appropriate vehicle for vindicating his interests.
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[1] Katzenbach v. Original Knights of Ku Klux Klan, 250 F. Supp. 330 (E.D. La. 1965) (boycotts and economic coercion as voter intimidation); United States v. Deal, 6 Race Rel. L. Rep. 474 (W.D. La. 1961) (refusing to engage in business transactions with people who registered to vote is voter intimidation).
[2] DOJ’s manual for prosecuting election offenses explicitly states that voter intimidation includes efforts to “to deter or influence voting activity through threats to deprive voters of something they already have, such as jobs.” See DOJ Public Integrity Section, Federal Prosecution of Election Offenses 49 (8th ed. 2017).
[3] People Helpers, Inc. v. City of Richmond, 789 F. Supp. 725, 733 (E.D. Va. 1992) (investigations as intimidation); United States v. Nyugen, 673 F.3d 1259, 1261 (9th Cir. 2012) (investigations as intimidation); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) (investigations as intimidation).
[4] League of United Latin Am. Citizens (LULAC) – Richmond Regional Council 4614 v. Pub. Int. Legal Found., No. 1:18-CV-00423, 2018 WL 3848404, at *4 (E.D.Va. Aug. 13, 2018) (linking plaintiffs’ names and personal information to allegations of felonious voter registration is intimidation).
[5] E.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566 (1991) (limiting nudity for dancers at adult bookstores subject to First Amendment scrutiny); Texas v. Johnson, 491 U.S. 397, 403 (1989) (regulation prohibiting flag burning subject to First Amendment scrutiny).
[6] Robert Post & Amanda Shanor, Adam Smith’s First Amendment, 128 Harv. L. Rev. F. 165, 179 (2015).
[7] Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949); see also California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 514 (1972) (holding that speech used as an “integral part” of prohibited conduct is not subject to First Amendment protection); NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (finding First Amendment protection against National Labor Relations Act claim for employer’s union comments that amounted to “a threat of retaliation based on misrepresentation and coercion”).
[8] United States v. Alvarez, 567 U.S. 709, 717 (2012).
[9] See Holder v. Humanitarian Law Project, 561 U.S. 1, 26-27 (2010) (questioning the breadth of the Giboney exception for speech integral to illegal conduct); see also, Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981, 1008 (2016).
[10] See United States v. O’Brien, 391 U.S. 367 (1968).