On Tuesday the world learned that the Department of Justice had served Donald Trump with a target letter for crimes related to January 6th. On Wednesday, reporting by The New York Times and Bloomberg News detailed which charges the letter actually contained. Two of the charges were expected: Conspiracy to Defraud the United States (18 USC § 371) and Obstruction of an Official Proceeding (18 USC § 1512). The letter also reportedly includes a third statute that the paper of record aptly described as a “surprise:” 18 USC § 241, conspiracy to deprive people of their rights.
With the picture now clearer, the DOJ’s approach appears to largely track the basic structure that was outlined by the comprehensive January 6th Model Prosecution Memo published by Just Security and written or edited by some of the authors here. The memo analyzed Sections 371 and 1512 in depth, and also addressed the conduct that the Section 241 charge appears to be targeting, albeit considering other statutory vehicles and candidly addressing their flaws.
A Section 241 charge would neatly address that alleged conduct. While this looked to some to be an unconventional charge, it appears to us to squarely cover Trump’s attempt to overturn the 2020 election, and to fit within prosecutorial and court precedents as we explain in detail below. Following our discussion of Section 241, we also address the newly reported Department plans to utilize two principal statutes analyzed in the model prosecution memo, 18 USC § 371 and § 1512.
Section 241 Applies to Trump’s Alleged Misconduct
The law currently codified as 18 USC § 241 was passed during Reconstruction to allow the federal government to prosecute those who used violence to prevent formerly enslaved people from voting. “But in the modern era,” as the Times writes, “it has been used more broadly, including in cases of voting fraud conspiracies.”
Indeed, the Justice Department’s Manual on election offenses notes, “Section 241 has been an important statutory tool in election crime prosecutions.” And it instructs prosecutors that “Section 241 should be considered when addressing schemes to thwart voting in federal elections.”
Under Section 241, Smith could charge Trump and his co-conspirators with trying to deprive voters in the 2020 presidential election of their rights. That includes both the non-violent but illegal means Trump and his co-conspirators such as Eastman urged upon Pence as well as the last resort when Pence refused: the use of mob violence. Through those courses of conduct Trump, acting with one or more others, attempted to prevent Congress from certifying the election of the president that the voters had actually selected. The voters who were harmed could be just those who cast their ballots in states where Trump and his associates attempted to submit false slates of electors, or all the voters who cast a ballot for Joe Biden, or even every American who voted. But the essential fact is that these types of schemes Trump led would be a violation of Section 241 because of the principal objective and plan to prevent a proper counting of people’s votes, or to discard their votes outright. That kind of conduct is within the heartland of prior prosecutions under Section 241.
Federal courts have recognized that there is a right to vote in fair elections and to have one’s vote counted. See Reynolds v. Sims (U.S. Supreme Court 1964); United States v. Classic (U.S. Supreme Court 1941); Griffin v. Burns (1st Cir. 1978). Accordingly, federal prosecutors have increasingly brought prosecutions of election fraud under 18 USC § 241 – and courts have held that the statute must be interpreted broadly with respect to denial of the right to vote. See Anderson v. United States (U.S. Supreme Court 1974); United States v. Stollings (4th Cir. 1974); United States v. Morado (5th Cir. 1972). In Anderson, the Supreme Court held that under Section 241:
“The right to an honest (count) is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly 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.”
The D.C. Circuit in the Section 241 case of United States. v. Liddy (D.C. Cir. 1976) cited a long line of Supreme Court precedents to find that the “voters … have a right under the Constitution to have their votes fairly counted.”
Federal prosecutions continue to be brought along these lines. Just last month, the government secured a conviction under § 241 for an election conspiracy that deprived individuals of their right to vote (in the case of United States v. Mackey). In its refusal to dismiss the case, the Mackey court noted that, nearly a century ago, the DOJ turned to using Section 241 to prosecute criminal efforts to deprive people of having their votes counted properly. Collecting cases that are also relevant to the 2020 election, the court observed:
In the 1930s, the Department of Justice (the “DOJ”) prosecuted an ever-broader range of voting rights cases under this statute, with the understanding that injuring the right to vote included both hampering a qualified voter’s ability to cast their vote and failing to count a vote properly cast. See United States v. Pleva, 66 F.2d 529, 530 (2d Cir. 1933) (addressing election inspectors that conspired to tally the ballots incorrectly); United States v. Buck, 18 F. Supp. 213, 215 (W.D. Mo. 1937) (prosecuting election commissioners that conspired to injure voters’ rights by counting certain votes for a different candidate); United States v. Clark, 19 F. Supp. 981 (W.D. Mo. 1937) (holding that changing votes after polls had been closed could also be prosecuted under this statute); Walker v. United States, 93 F.2d 383, 388 (8th Cir. 1937) (county election officials “conspired to count, record, and certify the ballots of voters [in a presidential election] falsely with fraudulent intent”); Ryan v. United States, 99 F.2d 864, 867-68 (8th Cir. 1938) (holding that a jury was correct in finding that ballots were falsified and other ballots were changed from Democratic to Republican by a certain ward’s Republican Committeewoman).
Submitting an alternate slate of electors to Congress or conspiring to disregard electors from certain states is simply a variation on a familiar theme from this long list of cases: Section 241 prohibits tampering with vote counting activity through such fraudulent means. That includes Trump and John Eastman’s efforts to press Mike Pence with the more radical plan to disregard votes. And it includes strong evidence such as Trump’s very purposeful false declaration on January 5, 2021 stating that Pence agreed with him on the power of the Vice President to carry out Trump and Eastman’s plan.
To be sure, a violent attack on the Capitol to prevent Congress from completing its work of certifying the election of the president was unusual. But prosecuting those who attempt to use violence to deprive voters of their right to vote is not. With recent reporting that Special Counsel prosecutors have fanned out across the country investigating threats against election officials following Election Day in 2020, we will wait to see what evidence Smith may have gathered of a coordinated effort to use mob violence that may also meet the elements of Section 241 or otherwise may provide the context for Trump’s use of the political violence on January 6th.
All of these possible prosecution scenarios we have articulated have the effect of interfering with the voters’ right to have their votes counted properly. As such, the activities of January 6th – directed by Trump and his associates – would constitute a deprivation of the voters’ rights or privileges under 18 USC § 241.
In Just Security’s Model Prosecution Memo, the authors outlined how Trump could be charged under the Insurrection Act (18 USC § 2383). However, the Memo acknowledged that statute is largely untested, noting that “Section 2383 is rarely charged, and … this is a charge the DOJ will use only with extreme caution. We believe there is sufficient evidence to pursue it—as did the Select Committee in making a criminal referral of Trump under that statute—but prosecutors may make different choices.” (Emphasis added.)
Evidently they did. But the DOJ may be charging the same underlying conduct through Section 241. That is an easier lift legally than 18 USC § 2383 charges given that a long line of cases (most recently including Mackey) has demonstrated that conspiracies to thwart Americans’ right to vote can be charged under the statute. And it also appears to be a very good fit for the facts. If the reports are accurate we welcome it. The statute ably serves as a stand in for Insurrection Act charges and for other parts of the scheme to thwart a proper counting and certification of the election. Charging Trump under 18 USC § 241 would therefore be a straightforward and powerful way for Smith to proceed.
As explained in the model prosecution memo, Smith need not include the speeches that Trump and his possible co-conspirators John Eastman and Rudy Giuliani made on the Ellipse on January 6. He can instead focus on their pressure campaign on Pence and Trump’s 2:24 p.m. tweet targeting the vice president, as well as Trump’s 187 minutes of inaction despite his affirmative Constitutional and legal duties to respond to and end the insurrection. But if Smith chooses to include the incendiary statements on the Ellipse that helped incite the violence that would ensue, the memo concludes that he is on sound legal footing and would not be forestalled by the First Amendment or other potential defenses he might raise. Trump and his alleged co-conspirators might also venture other separate defenses to a Section 241 charge including some or all of the nine detailed in the memo. That memo also includes an analysis of why in the authors’ views those defenses are generally unavailing with respect to criminal charges.
While we think deprivation of voters’ rights to have their votes fairly counted is the most likely theory under this statute, there are potentially other ways the DOJ could proceed. Section 241 also criminalizes interference with constitutional and legal privileges. Special Counsel Smith could in theory charge Trump with infringement on the right and privilege of Vice President Pence to preside at the joint session of Congress to meet and vote that day, or of the members of Congress to conduct the certification. As an older case has noted, “An office is a public employment, and in the performance of its functions the citizen selected to represent the sovereign is in the exercise of both a private right or privilege and public duty, and a conspiracy to hinder, oppress, and injure him in the discharge of such functions cannot be regarded as directed solely against the official in his representative character, but must be considered as also against the citizen exercising or enjoying the right or privilege of accepting public employment and engaging in the administration of its functions.” U.S. v. Patrick, 54 F. 338 (C.C.M.D. Tenn. 1893). See also United States v. Ellis, 43 F. Supp. 321 (W.D.S.C. 1942).
Lastly, as one of us has written, the Select Committee’s final report did well to identify racist dimensions of Trump and his allies’ efforts to overturn the election results. It should not be lost on anyone how that context matches the historic origins of Section 241 as a congressional effort to protect Black citizens’ right to have their votes cast and counted. That included as a safeguard against conspiracy and violence, both of which are prominently featured as the means and outcome of the former president’s efforts to hang onto power. The reported Section 241 charge is well grounded in the original purposes of the statute, as well as its text.
18 USC § 371 and § 1512 Are Also Applicable
The other two crimes reportedly included in the target letter appear to match the Model Prosecution Memo’s approach exactly.
The Conspiracy to Defraud the United States charge, under 18 USC § 371, likely refers to Trump’s false electors plot and similar schemes. Conspiracy to defraud is a two-pronged offense – meaning there are two ways it can be violated: (1) by conspiring to defraud the United States by some fraudulent scheme or (2) through conspiring to commit another offense. The Model Prosecution Memo argued that Trump did both.
The conspiracy to send false electors to Congress likely violates both prongs. It involved a conspiracy to commit another offense – knowing false statements. The forgery and other charges brought in Michigan this week against sixteen false electors demonstrates the criminality of that act. The false electors scheme also involved an effort to defraud the United States in the administration of elections. Trump’s involvement in the false electors scheme across various states could be enough to charge him federally.
Second, it is illegal, under 18 USC § 1512, to obstruct an official proceeding of the U.S.government. Substituting false electors for real ones would have interfered with the proper counting of ballots. So too would pressure on Pence to defy his duties and stop or suspend the certification of the election. The use of violence to interfere with the certification of the election is another possibility, especially as the DOJ has successfully charged many of the insurrectionists under that statute, but not their ringleader.
It is worth noting the confusion that has resulted from reporting that may have been based on the short title of 18 U.S.C. 1512. The title is “tampering with a witness,” which has led some to wonder if there will be witness tampering charges here against Trump. But subsection (c) of the statute covers obstruction of an official proceeding, and we believe that is the portion of the statute that is being referred to in the target letter and that we will all see in the likely indictment. The great reporting of the New York Times and Bloomberg News makes that plain.
Conclusion
If Trump is convicted, he would face the prospect of significant prison time. The penalties for each statute are as follows: a maximum of five years for 18 USC § 371; a maximum of twenty years for 18 USC § 1512; and a maximum of ten years for 18 USC § 241.
We will not know what offenses the DOJ may charge until the Special Counsel indicts Trump. But we will find out soon enough – charges often follow shortly after a target letter and many expect Smith to move before the very likely coming indictment in Georgia. If the reporting is accurate, Smith will be bringing a clear and strong case against the former president relying on well settled Justice Department and judicial precedents.