Federal prosecutors introduced a new twist in the investigation on Jan. 6 by suggesting in a cover letter that they could indict former President Donald J. Trump for violating a civil rights statute that dates back to the post-Civil War Reconstruction era, according to three. people familiar with the matter.
The letter to Mr. Trump from the special counsel, Jack Smith, referred to three criminal statutes as part of the grand jury investigation into Mr. Trump’s efforts to reverse his 2020 election loss, according to two people familiar with its contents. Two of the statutes were known by the criminal referral of the House on January 6 commission and months of discussion by legal experts: conspiracy to defraud the government and obstruction of official proceedings.
But the third criminal law cited in the letter was a surprise: Section 241 of Title 18 of the United States Code, which makes it a crime for people to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. “
Congress enacted that statute after the Civil War to provide a tool for federal agents to go after Southern whites, including members of the Ku Klux Klan, who engaged in terrorism to prevent formerly enslaved African Americans from voting. But in the modern era, it has been used more widely, including in cases of voter fraud conspiracies.
A Justice Department spokesman declined to discuss the letter of intent and Mr. Smith’s theory for bringing the Section 241 statute into the Jan. 6 investigation. But the modern use of the law has raised the possibility that Mr. Trump, who baselessly declared that the election he lost was rigged, could face prosecution on charges of trying to rig the election himself.
A series of 20th-century cases upheld application of the law in cases involving alleged tampering with ballot boxes by casting false votes or falsely tabulating votes after the election was over, even if no specific voter could be considered the victim.
In opinion of 1950 of the Court of Appeals for the Sixth Circuit, for example, Judge Charles C. Simons wrote about applying Section 241 in ballot box stuffing that the right to an honest count “is a right possessed by every voter, and to the extent that the importance of his vote is annulled, in whole or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.”
In 1974 Supreme Court opinion in upholding the use of Section 241 to prosecute West Virginians who cast false votes on a voting machine, Justice Thurgood Marshall quoted Justice Simons and added that every voter “has a right under the Constitution to have his vote fairly counted, without it being distorted by fraudulent. voted. “
The string of 20th-century cases raised the prospect that Mr. Smith and his team could weigh using that law to cover efforts by Mr. Trump and his associates to reverse the outcome of states he lost. Those efforts included the recorded phone conversation in which Mr. Trump tried to bully Georgia’s secretary of state into “finding” enough more votes to overturn Mr. Biden’s victory in that state and touting a plan to use so-called fake electors — self-appointed . slates of pro-Trump voters from states won by Mr. Biden — to help block or delay congressional certification of Mr. Trump’s defeat.
“It seems that under 241 there is at least a right to an honest vote count,” said Norman Eisen, who worked for the House Judiciary Committee during Mr. Trump’s first impeachment. “Send an alternate voter certificate to Congress (as opposed to casting false votes or counting incorrectly) is a novel scenario, but it seems like it would violate this right.”
The prospect of charging Mr. Trump under the other two statutes cited in the target letter is less novel, if not without obstacles. Among other things, in its final report last year, the House committee that investigated the events that culminated in the January 6 attack on the Capitol recommended that the Justice Department indict the former president under both of them.
One, Section 371 of Title 18, makes it a crime to conspire to defraud the United States. The other, Section 1512, includes a provision that makes it a crime to corruptly obstruct an official proceeding.
A spokesman for Mr. Trump declined requests to clarify what was in the letter.
Citing the statutes in the letter that Mr. Trump said he received on Sunday does not necessarily mean that any allegations brought by Mr. Smith should be based on them. But the contents of the letter provide a road map to the thinking of investigators.
The conspiracy to defraud the United States statute, if used, raises the question of who would be Mr. Trump’s co-conspirators.
Some of those who worked most closely with Mr. Trump to promote the lie that Mr. Trump was robbed of victory by widespread fraud, including lawyers such as Rudolph W. Giuliani and John Eastman, did not receive a target letter, their lawyers said. . tuesday
The corruption obstruction of justice indictment was used against hundreds of rioters on January 6th and served as the Justice Department’s account of the central event that day: the disruption of the Electoral College testimony process that took place inside the Capitol during joint session of Congress.
The law was originally passed as part of the Sarbanes-Oxley Act, an initiative intended to curb corporate wrongdoing. Defense lawyers for several rioters challenged its use against their client, saying it was meant to stop crimes like witness tampering or document destruction and was unfairly stretched to include the chaos at the Capitol.
But in April, a federal appeals court upheld the viability of applying that charge to participants in the Capitol attack. However, unlike ordinary rioters, Mr. Trump did not physically participate in the storming of the Capitol, although he called supporters to Washington that day and railed about the reluctance of Vice President Mike Pence, who presided over the meetings in Congress, to stop them.
A second attempt to overturn the obstruction count in the federal appeals court in Washington focused specifically on a provision of the law dictating that defendants must act “corruptly” in committing the obstruction act.
Defense attorneys argued that this provision did not apply to many ordinary January 6 rioters who did not act corruptly because they had nothing to gain personally by entering the Capitol. It could, however, be applied more easily to Mr. Trump, who stood to gain an election victory by obstructing the certification process.
William K. Rashbaum and Glenn Thrush contributed reporting.