Federal prosecutors introduced a new twist to the Jan. 6 investigation by suggesting in a letter to former President Donald J. Trump that they might charge former President Donald J. Trump with violating a civil rights statute that dates back to the post-Reconstruction Civil War era, according to three people familiar with the matter.
The letter to Mr. Trump from 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 defeat, according to two people with knowledge of its contents. Two of the statutes were known for the criminal referral by the House committee on January 6 and months of discussion by legal experts: conspiracy to defraud the government and obstruction of an official proceeding.
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 persons to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege guaranteed 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 Ku Klux Klan members, 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 voter fraud conspiracy cases.
A Justice Department spokesperson declined to discuss Mr. Smith’s target letter and theory for including the Section 241 statute in the January 6 investigation. But the modern use of the law raised the possibility that Mr. Trump, who baselessly claimed that the election he lost had been rigged, could face prosecution on charges that he attempted to rig the election himself.
A series of cases from the 20th century confirmed the application of the law in cases of alleged ballot box rigging through the casting of false ballots or the false tabulation of votes after the election had ended, even if no specific voter could be considered a victim.
In a 1950 opinion By the Court of Appeals for the Sixth Circuit, for example, Judge Charles C. Simons wrote of the application of Section 241 in a ballot box stuffing case that the right to an honest count “is a right possessed by every voting elector, and to the extent that the importance of his vote is nullified, in whole or in part, he has been impaired in the free exercise of a right or privilege guaranteed to him by the laws and the Constitution of the United States.”
In a 1974 Supreme Court opinion In defending the use of Section 241 to charge West Virginians who cast false ballots on a voting machine, Justice Thurgood Marshall quoted Justice Simons as adding that every voter “has the right, under the Constitution, to have their vote counted fairly, without being distorted by fraudulently cast ballots.”
The 20th century line of cases raised the possibility that Smith and his team may be considering using that law to cover efforts by Trump and his associates to turn the outcome of the states he lost. Those efforts included the recorded phone conversation in which Trump tried to intimidate the Georgia secretary of state into “finding” enough additional votes to surpass Biden’s victory in that state and promoting a plan to use so-called fake voters (self-proclaimed lists of pro-Trump voters from states won by Biden) to help block or delay Congressional certification of Trump’s defeat.
“It appears that under 241 there is at least the right to an honest count of the votes,” said Norman Eisen, who worked for the House Judiciary Committee during Trump’s first impeachment. “Submitting an alternative voter certificate to Congress (instead of casting false ballots or miscounting) is a novel scenario, but it appears it would violate this right.”
The prospect of impeaching Trump under the other two statutes cited in the target letter is less novel, if not without hurdles. Among other things, in its final report last year, the House committee that investigated the events that culminated in the Jan. 6 attack on the Capitol had recommended that the Justice Department indict the former president on both.
One, Section 371 of Title 18, criminalizes conspiracy to defraud the United States. The other, Article 1512, includes a provision criminalizing corrupt obstruction of official proceedings.
A Trump spokesman declined requests to clarify the contents of the letter.
Citing the statutes in the letter, which Trump said he received on Sunday, does not necessarily mean that the charges brought by Smith should be based on them. But the content of the letter provides a roadmap for researchers’ thinking.
The conspiracy to defraud the United States statute, if used, raises the question of who would be Trump’s co-conspirators.
Some of those who worked most closely with Trump to promote the lie that Trump had been robbed of a victory through widespread fraud, including lawyers such as Rudolph W. Giuliani and John Eastman, had not received target letters, their lawyers said Tuesday.
Corrupt obstruction of a prosecution charge was used against hundreds of protesters on January 6 and served as the Justice Department’s starting point for describing that day’s central event: the disruption of the Electoral College certification process taking place inside the Capitol during a joint session of Congress.
The law was originally passed as part of the Sarbanes-Oxley Act, a measure intended to curb corporate misconduct. Defense attorneys for several rioters have questioned its use against their client, saying it was intended to stop crimes like witness tampering or document destruction and had been unfairly expanded to include chaos on Capitol Hill.
But in April, a federal appeals court upheld the feasibility of applying that charge to participants in the attack on the Capitol. Still, unlike ordinary rioters, Trump did not physically participate in the storming of the Capitol, although he had summoned his supporters to Washington that day and complained about the unwillingness of Vice President Mike Pence, who was presiding over the proceedings in Congress, to stop them.
A second attempt to overturn the obstruction charge in federal appeals court in Washington specifically targeted a provision of the law that defendants must act “corruptly” in committing the act of obstruction.
Defense attorneys have argued that this provision does not apply to many ordinary January 6 protesters who did not act corruptly because they would gain nothing personally by entering the Capitol. However, it could more easily apply to Trump, who could win an election victory by obstructing the certification process.
William K. Rashbaum and glenn thrush contributed reporting.
