Jack Smith’s surprise weapon against Trump has a long civil rights history

Little-known Reconstruction-era federal laws could provide prosecutors with a clear path to convict Donald Trump for his efforts to thwart the peaceful transfer of power and incite the insurrection at the Capitol on Jan. 6, 2021. It is a sad but fitting reality that federal statutes used to charge Southern white people and members of the Ku Klux Klan with using terrorist tactics to prevent Black people from voting may now be applicable to conduct undertaken by the former president of the United States. 

Special counsel Jack Smith reportedly cited three federal statutes in his target letter to Trump. As the name indicates, a target letter is an official piece of correspondence from the Justice Department letting people know they are the target of an investigation, in this case into attempts to overturn the 2020 election. Two of the federal statutes apparently cited in the letter were no surprise, those dealing with obstruction and conspiracy to defraud the United States. 

Disenfranchising Black voters, who were key to Biden’s victory, is one way Trump sought to steal the 2020 election.

But few expected the third area of charges — civil rights. NBC News and The Wall Street Journal report that the third statute cited involves “deprivation of rights”, which could refer to 18 U.S. Code Section 242. Other outlets, including The New York Times, say the third statute is a different, but closely related, civil rights law, 18 U.S. Code Section 241, that makes it a crime to conspire to “injure, threaten, or intimidate a person in the United States in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States or because of his or her having exercised such a right.”

In either case, the right secured by the Constitution or federal laws would be the right to vote. Somewhat surprisingly, the right to vote is not explicitly found in the Constitution. However, the Supreme Court has recognized, there is a right to vote and have your vote counted in federal elections. In addition, the Supreme Court and other lower courts have held that Section 241 applies to the “right of the voter to have his vote counted.” 

How, specifically, could Trump have violated this right? For one, Trump attempted to send fake electors to vote in the Electoral College. This would have nullified the votes of millions of Americans who cast their ballots for Joe Biden. This appears to fit neatly within the Supreme Court’s conclusion in 1974 that the law at issue applies to a conspiracy intended to “have false votes cast.” Further, when Trump pressured Georgia officials to “find 11,780 votes” to allow him to win, that would invalidate the votes of millions who voted for Biden. Indeed, if Trump’s scheme succeeded, it would have harmed every voter who cast a ballot for Biden, not just those who voted for Biden in the states at issue. 

Whichever statute Smith’s team is using, both are unfortunately apt given their origins. As a recent Justice Department overview notes, Congress “enacted these Reconstruction-era statutes under its authority to enforce the protections of the Fourteenth Amendment.” In 1965, the Justice Department charged 18 white supremacists, including three law enforcement officers, under both statutes in a case involving the murder of three young civil rights activists in Mississippi. (The same case inspired the 1988 film “Mississippi Burning.”)

Everything that’s old is new again. And disenfranchising Black voters, who were key to Biden’s victory, is one way Trump sought to steal the 2020 election. Many of the votes that Trump sought to trash were cast in areas with large Black populations.  Trump’s famous “perfect” phone call occurred in Georgia, where one-third of the voters are Black, and those voters have helped to swing that state from red to purple. In addition to Biden’s victory in Georgia, Black voters also played a pivotal role in his victory in Michigan, Wisconsin and Pennsylvania. In part for this reason, Trump’s illegitimate plan for victory ran right throughout those states.   

Smith and his team have brilliantly cited a post-Civil War statute that provides a clear roadmap to criminalize Trump’s conduct. This allows Smith to charge Trump’s actions taken to prevent the transfer of power without having to rely on the Incitement Act and the First Amendment challenges that could raise. Congress designed the law referenced in the target letter as a way to punish those who used terrorist tactics to prevent formerly enslaved people from voting. It is a depressingly appropriate match for what Trump, allegedly, attempted to accomplish in 2020.