OPINION:
As 19th-century strategist Carl von Clausewitz observed, war is the continuation of politics by other means. Today’s radical liberals have added lawsuits to that mix.
Riots occur, the president deploys the National Guard, and the rioters’ supporters get a federal court to forbid the deployment. “Sanctuary cities” refuse to assist U.S. Immigration and Customs Enforcement; the administration cuts their federal grants, and the cities receive a court order to get paid anyway.
The initiators of this lawfare have overlooked their own vulnerability to it, a vulnerability Attorney General Pam Bondi is said to be investigating. Here are three additional legal weapons she (and every conservative) should consider:
First, when 19th-century Democrats engaged in postwar insurrection, Congress responded with the 1871 Ku Klux Klan Act. Today codified as 42 U.S.C. §1985, this authorized private lawsuits for damages against anyone who conspired:
1. To injure a federal official “in his person or property on account of his lawful discharge of the duties of his office, or … to injure his property so as to … impede him in the discharge of his official duties.”
2. “For the purpose of preventing or hindering” state authorities from “securing to all persons … the equal protection of the laws.”
3. “To prevent by force, intimidation, or threat,” any voter from supporting a federal candidate or to injure him for such support.
Anyone harmed by such a conspiracy — think U.S. Immigration and Customs Enforcement agents, Department of Government Efficiency staff, etc. — can sue. Also, each conspirator (not just those who rioted but also anyone who financed or advised them) is individually liable for all damage the conspiracy inflicted, plus attorney fees. Lawsuits may be brought anywhere a conspirator made an “overt act,” even a lawful one, to aid the conspiracy. Anywhere, as in “flyover country.”
The next section of the Anti-Klan Act is absolutely stunning. It authorizes suing anyone who simply knows of such a conspiracy and fails to use “reasonable diligence” to stop it. Anyone who knew of the conspiracy and did not inform the authorities is liable, as are local officials who held back law enforcement. (The law’s target was the Ku Klux Klan, then supported by local officials and community leaders.)
This provision has massive implications in the electronic age, when chat groups and email lists are used to organize everything from riots to weddings. The effects of email trails and electronic rosters on proving who was “in the know” are staggering. So are the damages involved. The Black Lives Matter riots in Minneapolis inflicted half a billion dollars of damage. The recent Los Angeles riots may reach the same level. Every person who knew what was afoot and kept his or her mouth shut is liable for all that.
Second, consider the U.S. Agency for International Development and similar government funders. Here, the False Claims Act, 31 U.S.C. §3729, comes into play. It allows a private citizen to sue, on behalf of the United States, anyone who presents a false claim to the government or to a government contractor or who misappropriates government money. It also allows them to recover treble damages for the corruption. The government can take over the lawsuit or let the citizen sue in its name. Either way, the citizen gets a “finder’s fee” of 15% to 30% of the trebled recovery. In fiscal 2024 alone, private citizens won $403 million in such “finder’s fees.”
Third, why not challenge the IRS nonprofit status of the criminals’ corporate sponsors? Rioting is pricey; commandeering a city center takes serious funding, weeks of food and shelter and bail money. Don’t forget salaries; rioting is now an occupation. Hundreds of people can’t keep a city hostage while holding down 9-to-5 jobs.
The IRS has made clear that “planning and sponsoring” illegal acts is inconsistent with nonprofit status. In a 1975 revenue ruling, the IRS denied tax-exempt status to a group that planned demonstrations that would simply block traffic. Organizing even misdemeanors, the agency ruled, would be “contrary to the common good and the general welfare.”
Bankrolling rioting, obstruction of justice and targeting of federal agents certainly fits that description. The IRS can even revoke nonprofit status retroactively, back to when the criminal planning began, leaving the nonprofit and its contributors with impressive tax liabilities.
We face a paradox: Opponents who seek anarchy and socialism invoke mob chaos and the legal system, but we who desire domestic peace and order have the legal tools to make them realize their hubris and understand that sowing the wind can reap the whirlwind — or, in less elegant terms, FAFO.
• David T. Hardy is a lawyer in private practice and a former associate editor of the Arizona Law Review.
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