‘It has to be done’: can Reconstruction-era laws hold Trump and allies accountable?
In attempts to hold former president Donald Trump and his allies accountable for election subversion, attorneys are reaching back to laws created in the wake of the civil war in the 1860s.
Beyond Trump, too, lawsuits using these Reconstruction-era laws seek to enforce voting rights and prevent discrimination in modern-era elections.
The laws from this time period were designed, in part, to reintegrate the Confederate states back into the country and ensure that they did not yet again attempt to overthrow the government or pass laws to restrict newly freed Black citizens.
But the Reconstruction Congress created laws that were “flexible and responsive to modern-day threats”, making them applicable today and worth trying to enforce, said Jessica Marsden, an attorney with Protect Democracy, which has filed lawsuits using such laws.
In recent years, the use of laws originally designed to crack down on the Ku Klux Klan and its allies in government after the civil war has grown. This set of laws bans political intimidation and violence, including insurrection, and has been used in legal claims from Charlottesville, to the January 6 insurrection, to the federal government’s charges against Trump.
Section 3 of the 14th amendment, recently making headlines as various lawsuits attempt to use it to keep Trump off the 2024 ballot, makes it illegal for someone who was an officer of the US government to hold office again if they engaged in “insurrection or rebellion”.
One novel approach also seeks to use a law that dealt with readmitting Virginia into the union to protect the voting rights of people with felonies.
The resurgence of these laws in recent years has surprised some observers, but proponents say they are strong tools to fight back against anti-democratic movements happening today. And there aren’t more recent laws that deal directly with insurrection since the last major one happened during the civil war.
“We have been compelled to use tools that we didn’t use in the past or didn’t need to use because we didn’t
have the kind of threat and the kind of character prepared to break norms as we do now with Mr Trump and his confederates,” said Sherrilyn Ifill, a civil rights attorney who is opening a center focused on the 14th amendment at Howard University School of Law.
Under Ifill’s leadership, in 2020 the NAACP’s Legal Defense Fund filed a lawsuit against Trump and the Republican National Committee using Ku Klux Klan Act statutes, alleging Trump’s campaign and the RNC were systematically trying to disfranchise Black voters by disrupting vote counting and trying to delay results. It’s “never easy to sue a president under the KKK Act,” Ifill said, “but it has to be done”.
“We are in a moment of democratic crisis,” Ifill said. “Trump and his agenda and Trumpism is a unique threat to the core of American democracy. And I think that has sent everyone into the space that we have to use all of the tools that are available to us.”
The Reconstruction Congress understood the threat of insurrection and the kinds of disfranchisement and violence that came from giving rights to Black men after the civil war because these activities had just happened or were still happening then, so they created a strong set of laws to prevent further violence and to hold accountable those who perpetuated it.
Since then, these threats haven’t been as direct as they are now, those filing lawsuits under these laws say, rendering the historic tools both useful and necessary.
“Congress in the 1860s and 70s gave us a toolkit that is surprisingly wellsuited to this moment,” Marsden, of Protect Democracy, said.
The laws from that time period were written with an understanding that opponents of democracy would be “quite creative” in how they’d try to deter people from participating in the democratic process, leaving open what kinds of actions can be considered voter intimidation, Marsden said.
That has made the KKK Act, for instance, a valuable tool when addressing modern technology, like a successful lawsuit against robocalls with threatening messages targeting Black voters about voting by mail. Another KKK Act case that recently settled involved a “Trump train” of vehicles that harassed a Biden bus in Texas in 2020, in which Protect Democracy argued that a town’s police force knew of this intimidation but didn’t work to stop it.
Protect Democracy is also arguing that the Virginia Readmission Act, which protected the rights of new Black citizens to vote, applies today to disfranchising people with felonies. In a lawsuit believed to be the first making this claim, the group says Virginia’s law that strips people with felonies of their right to vote is illegal because the Reconstruction-era readmission act says only certain felonies can be used to prevent voting.
Eric Foner, a historian who specializes in the civil war and the Reconstruction era, said it makes sense to use existing laws from that time period because they haven’t been repealed, despite the lack of use in the many decades since then, and reflect similar ideas to what’s happening today. The recent use of them shows just how strong the laws created by the Reconstruction Congress are, he said.
“It’s a political commentary on what is possible politically today,” Foner said. “And it’s an odd thing because it’s considered more possible to resurrect these laws than to pass new ones.”
With the resurgence of these laws come some challenges with making the case to judges, who may not have dealt directly with Reconstruction-era statutes beyond scholarly arguments. In the 14th amendment lawsuits, for instance, judges have questioned how to apply this section of law and interpret its provisions. And, given the highprofile and political nature of seeking to boot a former president from the ballot, judges have expressed wariness to wade into what some consider a political question, not a legal one.
Already, 14th amendment lawsuits in Colorado, Minnesota, Michigan and Florida have been tossed, though many are still ongoing and those bringing the lawsuits are likely to appeal, with the question expected to go before the US supreme court at some point.
In one smaller case, though, which didn’t involve someone as high-profile as Trump, a judge in New Mexico ruled that a county commissioner who had participated in the January 6 riots couldn’t hold office any more because of the 14th amendment.
Despite their discomfort with the politics of the issue, Ifill argues that judges need to show courage to enforce the amendment’s provisions.
“They may not want to do it any more than I wanted to sue a president under the KKK Act, but their job is to apply the law to the facts and issue a ruling that is consistent with what the law demands,” she said.
We have been compelled to use tools that we didn’t use in the past … because we didn’t have the kind of threat … as we do now with Mr Trump and his confederates
Civl rights attorney Sherrilyn Ifill
vancing south from Belarus, via Chornobyl, attempting to take Kyiv from the north and west. Around the commuter towns on the western fringes of the capital – Bucha, Irpin and Borodyanka – the fighting became intense and ferocious. On the night of 7 March, “we gathered an assault group, chose the guys, got the equipment. A convoy of nine vehicles left the sanatorium. We were moving down the highway between Bucha and Irpin. That’s when we were trapped and surrounded.”
The convoy was stopped at a Russian checkpoint. After a brief standoff, the firing began – and the terror and confusion. “The guys from my squad – civilian volunteers, family men – were swearing. I was screaming at them to motivate them. A Russian tank shot at us. There were grenades.” The Ukrainian convoy was getting the worst of it. Melnyk was severely wounded. The men around him were dying. Vehicles were going up in flames. “I had shrapnel wounds in my feet and wrists. My helmet was destroyed. I understood that that’s it, basta, game over. Adrenaline did its work but there was a lot of blood. Everything was on fire. My vehicle and my guys were gone. I couldn’t shoot any more – I gave my ammo to a comrade.”
Melnyk used the last of his strength to crawl off the road through a fence, and into someone’s garden shed. And then, “while I was thinking what to do, the adrenaline wore off and I lost consciousness”.
He lay there, between life and death, in the sub-zero chill of Ukraine’s bleak winter, for two days. At one point he dragged himself towards a well in the yard and fainted, out there in the cold: he woke up to find a curious alsatian licking him, and managed to manoeuvre himself back under the meagre cover of the shed. He began hallucinating. “I thought I was in hospital surrounded by friends, asking for water,” he says.
Eventually, Russian soldiers found him. He asked them to shoot him.
When they refused, he asked them for water. When they refused this, too, he remembers asking: “What kind of people are you, if you won’t shoot me and you won’t give me water?” They took his equipment – flak jacket, ballistic goggles. Eventually, they did give him water and a mattress, but they left him to take his chances in the cold. “When I asked them why they had started the war, they said: ‘Because you are raping women and eating children.’”
The next day, he was told a car was coming that would take him to Belarus – if he survived that long, they said. By the evening, Melnyk was in very bad way: as well as having lost a lot of blood, he was feverish, and frostbitten. The Russians offered to give him a big shot of adrenaline: a quick and painless way out, they said.
Melnyk took the offer seriously. Knowing that a man about to die can usually scrounge a cigarette, he asked for one: a play for time. By the time the cigarette had burned down, he had decided to play his hand, meagre as it seemed. “I thought, ‘I’ve already been through so much: let’s just see how it goes.’”
After a shot of antibiotics, he was thrown into a vehicle and taken to a village where he was moved into a freezing school basement. His fellow captives were civilians: a wounded woman with mental disabilities and a man with alcoholism. “I was accused of being a Nazi. They threatened to kill me.” He was soon moved on to another village, into a school equipped as a hospital.
Russian medics removed some of the shrapnel from his wounds. “Again, they accused me of being a Nazi but I was grateful for the basic patching up,” he says. He was moved again: now to a field hospital in Belarus for more roughand-ready care. That was a brief respite, though, before he was taken to yet another freezing basement in what could, he thinks, have been an industrial building. Here he was interrogated and beaten with a machine gun – “They were writing some kind of dossier” – and given very little to eat. After a couple of weeks he was transported to a prison somewhere in Russia where, he says, “I sometimes spent days without food. They were beating prisoners up.”
A military commander came to inspect him, and told him: “If the medics say you are unfit, they will take you into the treeline and shoot you.” Instead of that grim threat being carried out, he was taken to a military hospital. “The doctors would tell us ‘we’re going to cut off your balls’ or ‘we’re going to cut out your eyes’.” He was interrogated repeatedly. “Finally, I realised how to answer them. I understood that they just wanted some kind of answer to their questions. It didn’t really matter what. They treated us more or less OK, so I kept asking for more food and I refused to eat unless I could share it with the other guys.” In among the intimidation, the hunger and the brutal treatment, he occasionally encountered flashes of humanity, he says – medics who did their best, staff who discreetly brought him food.
There was a further move, to a hospital in Rylsk in Russia, where he remembers the nurses as hostile, telling him: “You’re killing our guys and we have to treat you.”
At this point, his wounded, frostbitten hands were starting to smell. “I spoke to the chief doctor, and told him I thought I was developing sepsis.” They amputated his left hand and three fingers of his right hand, and later also his toes. How on earth did he feel at this point? “I was fine,” he says, with remarkable equanimity. “I had had my chance to die, and I had made my choice.”
In April he was moved once more, this time to Kursk. Every day there were rumours of possible prisoner exchange. Finally, he and other Ukrainian soldiers were flown to the Crimea, and then driven to Zaporizhzhia region. From here he was finally able to call his mother, who up till that moment had no idea whether he was dead or alive. She fainted with the shock and relief, he tells me. Painfully thin and weak, he was released in a prisoner exchange on 21 April 2022.
Two days later, he had his belowthe-knee amputations. When he was reunited with his family, he says, he found himself cheering them up – putting himself “in charge of family morale” as they absorbed the extent of his injuries. I can believe it: you feel that there is little that could dent this young man’s sunny temper and optimism.
He was also reunited with a mobile phone. “I was super happy to have social media again – and I made a decision that I wasn’t going to be ashamed of my situation, I was going to be absolutely open about it.” He also did something else. “I’d never seen prosthetics, I’d never seen people using them, I’d just heard the word. So I Googled it – and I saw images of people swimming, jumping, running. And I thought: ‘That will do.’”
It has been a long road for Melnyk. His first prostheses were fitted in Kyiv. Initially, he admits, he was in “constant discomfort”. It took time to rebuild his strength and his balance, and to get used to the artificial limbs. Later, thanks to the Minneapolis-based Protez Foundation, he was offered much better prosthetics: the medics there were shocked at what he had been managing with. While he was in the US, he was amazed to see mainstream supermarket advertisements featuring disabled models. “It blew my mind. I want this level of visibility for disabled people in Ukraine.” He had already started posting his progress to TikTok and Instagram: his first steps on his artificial legs, then more and more progress – jumping, dancing, kickboxing, driving.
Working with Syrko is an important aspect of his activism, he says. “There has been enormous progress already but there needs to be radical change.” While he thinks about what might come next for him – he would like to train as a military psychologist – he has been articulating himself with increasing confidence. “Get used to it. Explain it to your children,” reads one post on Instagram. “Now, on the streets, more and more often, new beautiful people will appear… Their faces are disfigured and their bodies are scarred… Try not to point your fingers at them. Try not to
Even if the war stopped tomorrow, the number of amputations would keep climbing – 40% of Ukraine’s territory is now mined
look at them with pity.”
The challenge to remake Ukraine as a country in which disabled people lead lives of dignity is enormous. In order to accommodate its transformed society, it will have to institute vast infrastructural change: its urban fabric is, to put it mildly, ill-adapted to the needs of disabled people. The history of disabled-rights activism is bleak: in the 1980s, those who protested against the Soviet regime’s lack of provision were treated as dissidents and faced arrest or exile. The official attitude, says Rudnieva of Superhaumans, was: “We don’t have people without limbs. We are a ‘beautiful’ nation, a strong Soviet Union nation.” The prejudice has lingered. She still knows families who don’t take their disabled children out of the house during daylight hours. “It’ll take us years to change the culture.”
Nevertheless, there are signs that this is already happening, as those who have lost limbs since the full-scale invasion insist on visibility, many, like Melnyk, taking to social media to challenge perceptions. This autumn’s issue of Vogue Ukraine – the magazine is being published quarterly in spite of the war – features a shoot with amputees, ranging from army veterans, including Melnyk, to seven-year-old budding gymnast Oleksandra Paskal, who lost a leg in a Russian missile attack. As Rudnieva says, whatever happens next in the war, “we’re going to be a country of veterans – and we’re going to be a country of people with disabilities.”