Prosecutors appear to be eyeing one unexpected charge as the Justice Department winds down its investigation into former President Trump’s effort to stay in power after the 2020 election.
Trump announced Tuesday he had received a target letter Sunday informing him he is the subject of the probe, a move often followed by the filing of charges.
Reporting indicates that among the three statutes cited in the target letter are those for conspiracy to defraud the United States as well as obstruction of an official proceeding.
One would address the Trump campaign’s efforts to submit fake election certificates declaring Trump the victor while the other was used against several rioters, including members of the Proud Boys and Oath Keepers.
But a third statute referenced in the target letter deals with conspiring to deprive citizens the “free exercise” of constitutional rights like voting — a surprise to those looking to surmise potential charges.
The inclusion of the statute, Section 241 of the criminal code, provides an alternative to taking the riskier path of charging Trump under the Insurrection Act, another law drafted as a response to the Civil War.
Norm Eisen, who served as counsel during Trump’s first impeachment and worked alongside fellow former prosecutors in drafting a model prosecution memo for charges against Trump, said special counsel Jack Smith and his team may have thought the Insurrection Act “might be a bridge too far and presented a problem.”
“Smith has offered an elegant solution,” he said.
The law that Smith turns to was crafted in the Reconstruction era, when Black Americans were facing an explosion of violence targeting them as they sought to exercise the right to vote. The law carries up to 10 years in prison for those convicted.
But the law is not limited to any one group or set of rights. And unlike the rarely touched Insurrection Act, it has been used recently.
“It has been used, even in the 20th century, on several occasions or cases that were upheld at various appellate court levels, in cases that involved acts of what we might think of as voter fraud, or conspiracies to commit some kind of voter fraud. And the theory that the statute was used under in those cases is that every voter has a right to an honest count in elections,” said Josh Stanton, an attorney with Perry Law who worked on memos analyzing the Jan. 6 case.
How Smith intends to use the statute, Stanton said, depends on “what basis of facts will be used to bring the charge.”
Eisen likewise said Smith has a number of potential options — ones that include focusing on the rights of various actors that day.
“The most likely theory that Smith is pursuing under 241 is that Trump and co-conspirators like [attorney John] Eastman, who applied pressure to Mike Pence to disrupt the Jan. 6 counting the electoral votes, are interfering with the right of all Americans who voted for Joe Biden to have their vote counted,” he said.
Then-Vice President Pence, who is now running against his former boss for the 2024 GOP presidential nomination, was pressured by Trump and his allies to reject state counts in the 2020 election as Congress certified the results from the Electoral College.
“There are other theories that it’s possible to pursue, such as that Trump, Eastman and the others were interfering with the right and privilege of the members of Congress to recognize the rightful winner of the election, or even of Mike Pence to preside over the Jan. 6 meeting of Congress as is articulated under the Constitution,” Eisen said.
The statute does make reference to violence — making it one of the few options for addressing Trump’s conduct that led his supporters to rush to the Capitol, with hundreds ultimately clashing with officers before ransacking the building. The deaths of several officers and people present at the rally have been attributed to the violent rampage at the Capitol.
“The idea here is that the surprise statute — 18 USC 241 — might be the one that captures Trump’s use of violence. It depends on the evidence Jack Smith has gathered. Otherwise the most straightforward application of 241 is the plot to cast aside peoples’ votes,” Ryan Goodman, co-director of the Reiss Center on Law and Security at New York University School of Law, wrote on Twitter.
“I’m not seeing a vulnerability to this application of 241 — to the use of violence to deprive people of having their votes counted.”
Another key detail of the inclusion of a conspiracy statute is that such charges require the actions of two or more people — an indication that Trump could be charged alongside co-conspirators.
Eastman as well as former Trump attorney Rudy Giuliani said this week that they did not receive target letters.
Both have been posited to be among those most likely to also be charged, alongside former Trump Chief of Staff Mark Meadows and Kenneth Chesebro, who was involved in coordinating the fake elector scheme.
Prosecutors brought one more witness Thursday before a D.C. grand jury hearing evidence in the case: Will Russell, a former aide to Trump who was with him on Jan. 6.
It’s unclear if or when charges will be filed against Trump, with the indictment itself offering the first real preview into Smith’s thinking.
“It’s [inclusion is] a surprise because it’s somewhat infrequently prosecuted,” Stanton said of the reference to Section 241 in the target letter.
“Nevertheless, I think those of us that have done research on what we saw as maybe more likely charges or charges that are used more frequently, when really digging into the history and application of the statute … it appears entirely appropriate.”
