July 20, 2023
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).
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