Donald Trump Jr. and Rudy Giuliani are defendants in a lawsuit filed Wednesday by Lt. Col. Alexander Vindman, the whistleblower who sparked the first impeachment of former President Donald Trump.
Vindman sued the former president’s eldest son, Giuliani, and two other Trump associates in D.C. federal court, alleging a “concerted campaign of unlawful intimidation.”
“Purposefully attacking witnesses for participating in an official proceeding and telling the truth cannot” be “tolerated in a nation built on the rule of law,” the lawsuit says. “This kind of unlawful conduct must not be accepted as ‘normal’ in any healthy democracy.”
The suit stems from Vindman’s role in Trump’s impeachment in late 2019 for allegedly attempting to bully and cajole Ukraine’s president into digging up or making up dirt on Joe Biden’s son Hunter as part of a scheme to influence the 2020 presidential election.
Trump was acquitted by the Senate of the Ukraine-related impeachment charges, which focused on a phone call he had with Ukrainian President Volodymyr Zelensky. Mitt Romney was the only Republican senator to cross party lines and vote to convict.
He was impeached and acquitted a second time a year later for his alleged role in inciting the Jan. 6 insurrection by a mob of his supporters, who stormed the U.S. Capitol in an effort to stop Congress from certifying Biden’s election victory.
The former president’s office and the Trump Organization didn’t immediately respond to a request for comment Wednesday. The former president wasn’t named as a defendant in the lawsuit.
The complaint seeks an injunction and unspecified damages, including punitive damages, for violations of the Ku Klux Klan Act. It also requests legal fees.
That law, namely Section 1985, allows lawsuits against private individuals who interfere with official government conduct or deprive others of their civil rights. It was enacted shortly after the Civil War, in 1871, to address terrorist tactics the Klan used to intimidate free Blacks and public officials.
The statute has received renewed attention in recent years, as a potential tool to combat the rise of far-right groups like the Proud Boys and the Oath Keepers.
It was cited in a lawsuit over the Unite the Right rally, a 2017 demonstration by White supremacists in Charlottesville, Va., that turned deadly. The case led to a $26 million verdict against some of the event’s organizers, although the jury deadlocked on the Section 1985 count.
Potentially Potent, Rarely Invoked
The statute is still rarely invoked, and the lack of recent precedent means handicapping the lawsuit’s odds requires educated guesses, according to legal experts.
Jessica A. Levinson, a professor at Loyola Law School in Los Angeles, told Bloomberg Law that although the “plain text of the statute” seems to encompass suits like Vindman’s, the potential mismatch between its original purpose and the current legal landscape could becoming a stumbling block.
On the one hand, “you can absolutely say with a straight face that there’s a ‘there’ there,” Levinson said. “There was a campaign and a conspiracy to intimidate Vindman, prevent him from testifying, and make it impossible for him to continue serving.”
But “on the other hand, courts tend to not love using old laws in novel ways,” she added. “So I’m circumspect about their chances.”
Randolph M. McLaughlin, a professor at Pace University’s Haub School of Law, took a rosier view of the complaint’s prospects. McLaughlin, who’s civil rights co-chair at Newman Ferrara LLP, said the case “comes squarely within the confines” of the statute’s ban on intimidating federal officials.
“That’s what happened here,” McLaughlin told Bloomberg Law on Wednesday. “Certainly, Mr. Vindman was being intimidated.”
He cited his own court victory against the Ku Klux Klan in the early 1980s, when—working with the Center for Constitutional Rights—he obtained an injunction under Section 1985 that he credits with ending Klan violence in Chattanooga, Tenn.
But John F. Banzhaf III, a law professor emeritus at George Washington University, told Bloomberg Law on Wednesday that he expects Vindman’s lawsuit “to founder on two major rocks.”
First, he said, “it seems to me they’re trying to make a federal case” out of an ordinary defamation suit, and possibly one that couldn’t overcome the high bar for plaintiffs like Vindman who are “public figures.”
Most of the disparaging remarks made about Vindman—that he’s disloyal, insubordinate, or treasonous—were “characterizations” protected by the First Amendment, not statements of fact that are either true or false, Banzhaf said.
He compared the Vindman case to the confirmation hearings for U.S. Supreme Court Justices Clarence Thomas and Brett M. Kavanaugh, both of whom were accused of sexual harassment or misconduct.
“Opposition research” aimed at making a key witness uncomfortable is a common practice—albeit an unfortunate one—that likely falls short of intimidation under Section 1985, Banzhaf said.
“It’s going to be a real uphill battle,” Banzhaf said.
According to his complaint, Vindman “immediately became the target of a dangerous campaign of witness intimidation” after being called to testify before Congress about the phone call with Ukraine’s president, during which he believed Trump behaved illegally.
“The attacks on Lt. Col. Vindman did not simply happen by accident or coincidence, nor were they the result of normal politics,” according to the suit filed in the U.S. District Court for the District of Columbia, where it also targets Trump aide Julia Hahn and former White House adviser Dan Scavino.
“Rather, the coordinated campaign was the result of a common understanding” among Donald Trump Jr.and other Trump aides to target Vindman “in a specific way for the specific purpose of intimidation and retaliation” by painting him as disloyal, as an insubordinate officer, or as a Ukrainian spy, the suit says.
He “was left with no choice but to retire from the military altogether” after the attacks made it impossible for him “to serve in any national security position or foreign affairs role,” according to the complaint.
The attacks engineered by Donald Trump Jr. and the others allegedly “had the intended and foreseeable effect of” encouraging other Trump supporters “to attack Lt. Col. Vindman in even more dangerous and frightening ways,” including with threats of violence.
They “sent a message to other potential witnesses as well: cooperate and tell the truth at your own peril,” the suit says. “The message reverberates to this day,” as witnesses to the Capitol insurrection “continue to heed former President Trump’s instructions to defy” congressional subpoenas, it adds.
Vindman is represented by the Protect Democracy Project and Altshuler Berzon LLP.
The case is Vindman v. Trump, D.D.C., No. 22-cv-257, complaint filed 2/2/22.