When former President Donald Trump said he had received a target letter in the federal January 6th case, media reports revealed a “surprise” statute in the Justice Department’s target letter. That statute, 18 U.S.C. section 241, should not have been a surprise: it is a powerful and oft-used tool by prosecutors.
An examination of the Justice Department’s prior use of the statute provides insight into how the Special Counsel could charge an aspect of Trump’s efforts to overturn the presidential election that has received scant attention, even though it is hiding in plain sight. A section 241 charge can and should encompass Trump’s efforts to stop the electoral count, a scheme that when it did not prove successful, morphed into the more prominent schemes: the use of false electors, the pressure campaign on Vice President Mike Pence, and the attempted use of the Justice Department to produce bogus fraud investigations.
But the initial phase of the conspiracy to obstruct the peaceful transfer of power was a coordinated scheme to “stop the count” of ballots after polling stations closed on election night. That scheme can and should be charged under the 1512 obstruction statute as well as the “surprise” 241 statute.
If Special Counsel Smith can prove that Trump and one or more other people conspired to block the counting of ballots, that could serve as a stand-alone Section 241 charge in an indictment. If not its own charge, then the scheme to stop the counting of ballots can form the basis for the initial part of the overall charged scheme to deprive Americans’ voting rights in the 2020 presidential election.
I. Justice Department and judicial precedent
Section 241 makes it a crime if “two or more persons conspire to injure … 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.” Despite what some legal commentators have asserted, this includes voting rights.
As with any conspiracy statute, Section 241 applies even if the conspiracy is not successful and even if the criminal scheme does not change the winner in an election (See, e.g., United States v. Nathan (7th Cir. 1957). More uniquely, Section 241 does not require the commission of an overt act to establish criminal liability. (That feature is irrelevant, here, given the numerous overt acts detailed below.)
Spanning over a hundred years, the Department of Justice has used the 241 statute with great success to prosecute conspiracies to prevent the proper counting of ballots in federal elections. Such schemes are within the heartland of Section 241 prosecutions. And equally important, the Supreme Court has a long history of upholding, over and over again, the statute’s application to such conduct.
A landmark Supreme Court decision in 1915 – United States v. Mosley – upheld the indictment of officers of a county election board who conspired to omit certain ballots from the vote count. Writing for the Court, Justice Oliver Wendell Holmes said, “It is not open to question that this statute is constitutional …. We regard it as equally unquestionable that the right to have one’s vote counted is as open to protection by Congress as the right to put a ballot in a box.” By the 1930s, the Justice Department brought several prosecutions for similar conduct – schemes to prevent the counting of ballots – under section 241. As the Federal District Court for the Eastern District of New York explained earlier this year:
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).
The Department of Justice’s Manual on Federal Prosecution of Election Offenses also includes a list of exemplary cases brought under Section 241. The list includes:
• prevent the official count of ballots in primary elections, United States v. Classic, 313 U.S. 299 (1941);
• destroy ballots, United States v. Townsley, 843 F.2d 1070, 1073–75 (8th Cir. 1988);
• fail to count votes and to alter votes counted, Ryan v. United States, 99 F.2d 864, 866 (8th Cir. 1938); Walker v. United States, 93 F.2d 383, 386 (8th Cir. 1937); and
• steal votes by changing the votes cast by voters at voting machines, United States v. Thompson, No. 6:09–16–KKC, 2013 WL 5528827, at *1 (E.D. Ky. Oct. 4, 2013).
Using those past prosecutions as a guide, it is readily apparent how the scheme by Trump and his associates to overturn the 2020 presidential election can be charged under this statute (as well as the obstruction statute).
II. The “Stop the Count” Scheme
The initial plan by Trump was to stop the counting of votes while he was ahead; to freeze the “red mirage” before heavily Democratic mail-in votes could be counted. That was the conclusion of the January 6th House Select Committee’s final report: “President Trump’s decision to declare victory falsely on election night and, unlawfully, to call for the vote counting to stop, was not a spontaneous decision. It was premeditated.”
What follows is the known evidence of, and reporting about, this scheme to thwart the counting of votes.
Trump’s awareness of the “red mirage” on election night
Anyone following the upcoming November presidential election was aware of the “red mirage” issue – namely that the in-person vote would skew in favor of Trump, who had prominently denigrated mail-in voting. And of course Trump was aware of this: according to their congressional testimony, Trump’s campaign staff, including campaign manager Bill Stepien, advised Trump of the “red mirage,” the false appearance that the Republican in a race may be winning on election night before mail-in ballots (which tend to be more Democratic) start getting counted. Bill Barr testified, “everyone understood for weeks that that was going to be what happened on election night.”
Trump’s plan to declare victory on election night, even if he lost
On November 1, 2020 and on January 16, 2021, journalist Jonathan Swan reported that “for weeks, Trump had been laying the groundwork to declare victory on election night — even if he lost.”
That reporting is corroborated by a secretly recorded conversation in which Steve Bannon outlined the plan for Trump to stop ballot counting after voting stations closed. Bannon said:
“And what Trump’s going to do is just declare victory, right? He’s gonna declare victory. But that doesn’t mean he’s the winner. He’s just gonna say he’s a winner… The Democrats, more of our people vote early that count. Their vote in mail. And so they’re gonna have a natural disadvantage, and Trump’s going to take advantage of it. That’s our strategy. He’s gonna declare himself a winner. So when you wake up Wednesday morning, it’s going to be a firestorm . . . Also, if Trump, if Trump is losing, by ten or eleven o’clock at night, it’s going to be even crazier. No, because he’s gonna sit right there and say ‘They stole it. I’m directing the Attorney General to shut down all ballot places in all 50 states. It’s going to be, no, he’s not going out easy. If Trump—if Biden’s winning, Trump is going to do some crazy shit.”
Tom Fitton’s draft statement
But there is more. The same day, Tom Fitton of Judicial Watch emailed Trump a “draft statement as you requested.” The statement makes clear that the plan before the election was to freeze the count:
“The voters have spoken. The ballots counted by the Election Day deadline show the American people have bestowed on me the great honor of reelection to President of the United States. Federal law establishes November 3 as Election Day – the deadline by which voters in states across the country must choose a president. Some partisans will try to overturn today’s lawful election results by shamelessly counting ballots that arrive after Election Day for days and weeks. This is lawless, invites massive voter fraud, undermines our democracy, and could dishonestly cancel the votes of tens of millions of Americans who ensured their votes would arrive to be counted on Election Day. I am prepared to go to court to make sure this election is not stolen and am directing the Justice Department to defend federal election law accordingly. We had an election today – and I won. Some believe Election Day deadlines don’t matter and would attack democracy through fraud and judicial activism. Counting ballots that arrive after Election Day is unfair and shows contempt for the will of the people. I will defend, to the full extent of the law, free and fair elections and our constitutional republic from any electoral coup. Thank you and God bless America.”[1]
Election Night, November 3, 2020 at 10:21PM
Fitton reforwarded to President Trump the above draft statement. Fitton told the president’s executive assistant Molly Michael that Fitton “just talked to him about the draft.” Note: there is reporting that Michael is now cooperating with the Smith’s investigators.
November 4, 2020 shortly before 2:30AM
The plan is put into effect by Trump on election night. Trump makes a statement that from the White House:
“We were getting ready to win this election. Frankly, we did win this election. So our goal now is to ensure the integrity, for the good of this nation. This is a very big moment. This is a major fraud on our nation. We want the law to be used in a proper manner, so we’ll be going to the U.S. Supreme Court. We want all voting to stop. We don’t want them to find any ballots at 4 o’clock in the morning and add them to the list, okay?”
In case the speech was not clear enough of his plan, Trump amplifies his speech with direct appeals to his millions of Twitter followers.
On November 5th at 9:12 AM: Trump tweets in all caps: “STOP THE COUNT!”
At 10:09 AM: Trump tweets in all caps: “ANY VOTE THAT CAME IN AFTER ELECTION DAY WILL NOT BE COUNTED!”
At 10:45 AM: Trump retweets his tweet: “STOP THE COUNT!”
Within hours, crowds of Trump supporters converged on vote-counting centers chanting and holding signs saying, “Stop the count!” (and “stop the vote”) in Detroit, Michigan, Atlanta, Georgia, and Philadelphia, Pennsylvania.
But Trump and his allies did more than drum up public support to freeze the counting of votes.
November 7-13, 2020: Arizona
Kelli Ward, Chair of the Arizona GOP, communicated with Clint Hickman, Chairman of the Maricopa Board of Supervisors about stopping the vote count. The select committee wrote:
“According to Hickman, Ward was unusually active after the election, even for a party chair, and was the first person to pressure him. One of her first messages to Hickman before trying to connect him with President Trump was: “We need you to stop the counting.’”
On Nov. 13, Ward texted Mark Meadows, “Just talked to POTUS,” and “He may call the Chairman of the Maricopa Board of Supervisors.”
Ward left a voicemail message for Hickman saying, “I just talked to President Trump, and he would like me to talk to you and also see if he needs to give you a call to discuss what’s happening on the ground in Maricopa. Give me a call back when you can.”
Trump repeatedly tried to contact Hickman directly. Hickman never returned the president’s calls.
When asked about these communications by congressional investigators, Ward asserted her Fifth Amendment right to remain silent.[2]
November 13, 2020: Georgia
Senator Lindsey Graham called Georgia Secretary of State Brad Raffenperger. With two witnesses on the call – Raffensperger’s deputy Jordan Fuchs and Georgia election official Gabriel Sterling – Graham “implied” the secretary of state should try to throw out ballots, according to what Raffensperger told CNN.
Rafenneperger said, “He [Graham] asked if the ballots could be matched back to the voters, and then I got the sense that he implied that then you could throw those out.” Wolf Blitzer stated that Graham had denied the allegation by saying, “That’s ridiculous.” Raffensperger responded, “Well, it’s just an implication that look hard and see how many ballots you could throw out.” (We include this because it is notable to us that the Senator did not seek to justify his actions by saying he was asking to make sure all votes were from actual voters, but instead denied the statement altogether.)
In testimony, Raffensperger told the select committee, “My concern was, would you be disenfranchising voters when the ballots have already been accepted by the county process.” He said he told Graham on the call that he would consult with his General Counsel and get back to the senator but never did. “I just didn’t want to go where he was — where I thought he might want to go. I just thought it best not to call him back.”
* * *
An organized plot to deny individuals their right to vote is prohibited by Section 241. The above makes clear that it can form the basis for charging Trump and his conspirators in connection with their plot against American democracy.
– footnotes –
- The very next day, November 1, 2022, convicted felon (and then Trump-pardoned) Roger Stone is recorded by a documentary television crew filming Stone admitting the plan is for Trump to declare victory on election night. Stone says on the video:“I really do suspect it’ll still be up in the air. When that happens, the key thing to do is to claim victory. Possession is nine tenths of the law. ‘No, we won. Fuck you, Sorry. Over. We won. You’re wrong. Fuck you.’” ↑
- On Christmas Eve, Rudy Giuliani called Maricopa County Supervisor Bill Gates, and left a voicemail message:“Bill, it’s Rudy Giuliani, President Trump’s lawyer. If you get a chance, would you please give me a call. I have a few things I’d like to talk over with you. Maybe we can get this thing fixed up. You know, I really think it’s a shame that Republicans sort of are both in this kind of situation. And I think there may be a nice way to resolve this for everybody. So give me a call, Bill, anytime at this number.” ↑
Editor’s note: Readers may also be interested in: Norman L. Eisen, Ryan Goodman, Joshua Kolb and Jacob Gaba, Unpacking the “Surprise” Crime in DOJ’s Target Letter to Trump.