Former President Donald Trump may be charged with violating a civil rights statute from the post-Civil War Reconstruction era, according to a target letter sent by special counsel Jack Smith, who is investigating Trump’s attempts to overturn the 2020 election results.
The letter, which was first reported by The New York Times, mentioned three criminal statutes that Smith is considering in the grand jury investigation. Two of them are conspiracy to defraud the United States and obstruction of an official proceeding, which relate to Trump’s efforts to use fake electors and pressure officials like former Vice President Mike Pence to stop the congressional certification of Joe Biden’s election win on January 6, 2021.
But the third statute cited in the letter was a surprise to legal experts and observers. It is Section 241 of Title 18 of the United States Code, which makes it a crime to conspire to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States.
This statute was originally passed to protect the civil rights of Black voters who were targeted by white supremacy groups like the Ku Klux Klan after the Civil War. However, it has been used more widely in modern times, including in cases involving voting fraud conspiracies.
Anthony Michael Kreis, a Georgia State University law professor, told Salon that this statute could allow Smith to charge Trump for entering a conspiracy that caused bodily injury, which would increase the penalty for the unlawful conspiracy. He also said that this statute would avoid litigating whether Trump’s speech before the Capitol riot, which could be the basis of an incitement charge, was protected by the First Amendment.
“The benefits for using Section 241 are three-fold. First, the statute isn’t novel in terms of applying it to election fraud. Second, is that the DOJ can go after the election fraud scheme and tie it to the insurrection for enhanced penalties. Third, the combination of the first two benefits allows Trump to be tried for January 6th without litigating whether his speech before the riots at the Capitol, which would be the basis of a free-standing incitement charge, is protected by the First Amendment,” Kreis said.
“Essentially, Trump could be charged for entering a conspiracy to deprive persons of their rights guaranteed under the Constitution and that conspiracy caused bodily injury, which would increase the penalty for the unlawful conspiracy,” he added.
The target letter did not mention any other charges that Trump could face, such as seditious conspiracy, incitement of insurrection or deprivation of rights under color of law. However, some legal experts have speculated that Smith may have more evidence against Trump and his associates that has not been made public yet.
George Conway, a conservative attorney and vocal critic of Trump, questioned why Mark Meadows, Trump’s former chief of staff during the Capitol attack, was keeping a low profile amid Smith’s investigation.
“We saw in the documents case that there’s basically only one person who didn’t end up cooperating in some way, which was Waltine Nauta. And we’ve seen some very strange quietness from Mark Meadows, for example. I just have the feeling something’s going on there. I mean, he’s someone who ought to be every bit as exposed as Donald Trump. Yet, he has been so quiet and they’re just–it just seems like there’s something up with him,” Conway said on CNN.
Harry Litman, a former U.S. attorney and a legal analyst for MSNBC and The Washington Post, also suggested that Meadows could be a key witness against Trump.
“When Trump learns to witness list for the coming indictment, his head will explode. First person I am looking for: Mark Meadows,” Litman tweeted.
Ryan Goodman, a co-editor-in-chief of Just Security and a former special counsel at the Department of Defense, said that Section 241 could be used to capture Trump’s use of violence in his scheme to overturn the election.
“The idea here is that the surprise statute — 18 USC 241 — might be the one that captures Trump’s use of violence. It depends on the evidence Jack Smith has gathered. Otherwise the most straightforward application of 241 is the plot to cast aside peoples’ votes,” Goodman tweeted.
Trump has denied any wrongdoing and has called Smith’s investigation a “witch hunt” and a “hoax”. He has also claimed that he won the 2020 election in a landslide and that it was rigged by widespread fraud and irregularities. However, these claims have been rejected by dozens of courts, state officials and his own administration.
Relevant articles:
– Expert: Jack Smith can use “surprise” statute cited in Trump target letter for “enhanced penalties”, Salon.com, July 21, 2023
– Trump under investigation for civil rights conspiracy in January 6 inquiry, The Guardian, July 19, 2023
– Donald Trump Could Be Undone by ‘Surprise Statute’ Among Jack Smith Charges, Newsweek, July 20, 2023
– Jack Smith sends Trump staffer target letter ‘indicating that he might have perjured himself’, Alternet, July 20, 2023