Special Counsel May Indict Trump Under Reconstruction Era Anti-Klan Statute

In what Constitutional experts are calling an “elegant” legal move, Special Counsel Jack Smith has cited a post-Civil War civil rights statute as one of three laws Defendant Trump may be prosecuted under in the target letter Smith served last Sunday. The law, 18 U.S. Code 241 is called “Conspiracy Against Rights” in the criminal code, and was passed during the Reconstruction Era at a time when Black citizens were facing extraordinary amounts of violence in the South when they tried to vote.

The law is said to have been passed, at least in part, against Ku Klux Klan violence, and was part of a number of statutes passed to support the rights Black citizens and others enjoyed following the passage of the 14^th Amendment, guaranteeing all citizens equal protection of the laws.

The law should send chills down the spine of Defendant Trump. Here it is in its entirety:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

The first scary thing about the law for Defendant Trump is that it is specifically crafted as a conspiracy statute. The second scary thing is its broad scope. The third scary thing is found in its final section, which specifies that if death results from violations, or if kidnapping is involved in commission of the crime being prosecuted under the act, punishment can be “any term of years or life, or both, or may be sentenced to death.”

Just as a brief reminder, kidnapping of police officers happened at the Capitol on January 6, 2021, and death resulted from acts committed in the insurrection that day. Many of those involved in the insurrection were “in disguise” with their faces covered, similar to the way the Klan disguised themselves with white-sheet costumes.

I don’t think Smith intends to prosecute Defendant Trump for conspiracy in those acts. In the words of Norman Eisen, a co-counsel for the Democratic House Managers in the first impeachment of Defendant Trump and a senior fellow at the Brookings Institution, Smith’s plan is far more “elegant.” Section 241 has been used multiple times in the 20^th Century to prosecute violations of voting laws by stuffing ballot boxes or casting fake ballots.

The violations did not cite specific voters as victims of the violation of section 241, but rather cited the law’s guarantee that voters in general are entitled under the law to an honest count of their votes. The votes of citizens are diminished in value if false votes are counted along with legitimate votes. The Supreme Court in 1974 upheld the use of section 241 in a West Virginia case that prosecuted people for making use of a voting machine to cast fake votes. Justice Thurgood Marshall cited a previous case involving section 241 in a ballot-stuffing scheme and wrote that every voter “has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.”

That is as broad an application of law as you see in Supreme Court cases, applying the violation of a section of a single statute to the rights of all voters to see that their votes are accurately and honestly accounted for.

It appears that there are any number of apparent ways that section 241 could be applied to Defendant Trump. Because it is a conspiracy statute, all that would have to be proved is that he was involved with another person or persons to deprive citizens of an accurate count of their votes. The entirety of his “stop the steal” effort to overturn the results of the 2020 election would fall under that statute.

Defendant Trump’s call to Georgia Secretary of State Brad Raffensperger could be interpreted as a violation of section 241. So could contacts with any other state officials such as secretaries of state in battleground states, or in the case of Arizona, then Speaker of the House Rusty Bowers, who was called by Rudy Giuliani and Trump from the Oval Office and asked to involve himself in a Trump-invented scheme to have the Arizona House of Representatives overturn the election results in that state.

The entire fake elector scheme could be interpreted as an effort to dilute or outright negate the votes of citizens in all seven battleground states by conspiring to put forth slates of electors who did not represent the votes of citizens in those states whose votes were for Joe Biden. In the fake elector scheme, the person with whom Defendant Trump conspired would be the scheme’s author, lawyer John Eastman, who appeared repeatedly in the Oval Office to either pitch or execute the scheme.

Smith’s prosecutors brought a witness before the grand jury yesterday, an aide who was with Defendant Trump in the White House on January 6 and may have been privy to his phone calls on that day, about which nothing was revealed by the House Select Committee. The aide, Will Russell, who is still employed by Defendant Trump on his campaign team, had appeared before the grand jury before.

A second visit to the grand jury usually indicates that additional evidence has been developed by the prosecution that calls into question the previous testimony of the witness. In this case, Russell may be confronted with perjured testimony he gave previously and be given a chance to revise his testimony if he will honestly answer the questions he lied in answering before. This is one of the ways prosecutors can “turn” a witness against a higher target of the prosecution, in this case, Defendant Trump.

It's never a good sign when you wake up in the morning and discover that you are facing prosecution under the same law that was used to put members of the Ku Klux Klan in jail in the 1800’s. But then again, in today’s Republican Party, maybe that is a good thing.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

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