Among the three criminal statutes cited in the target letter from the special counsel, Jack Smith, to former President Donald Trump is a civil rights law that dates to the Reconstruction era, the New York Times reports. While two of the statutes under review by a grand jury investigating efforts to reverse the 2020 election results were the focus of the House Jan. 6 committee criminal referral and months of discussion by legal experts — conspiracy to defraud the government and obstruction of an official proceeding — the use of Section 241 of Title 18 comes as more of a surprise. The law 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.” Its roots are in 19th century crackdown on Ku Klux Klan terror. In the modern era it has been used more broadly, including in cases of voting fraud conspiracies.
Use of the law raised the possibility that Trump, who baselessly declared the election he lost to have been rigged, could face prosecution on accusations 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. “It seems like under 241 there’s at least a right to an honest counting of the votes,” said Norman Eisen, who worked for the House Judiciary Committee during Trump’s first impeachment. “Submitting an alternate electoral certificate to Congress (as opposed to casting false votes or counting wrong) is a novel scenario, but it seems like it would violate this right.”