Last week, former President Trump received a “target letter” from Jack Smith, a special counsel for the Justice Department, indicating that Trump will likely be criminally charged in connection with at least some aspects of his role in trying to overturn the results of the 2020 election. On Thursday, the Times reported that the letter mentioned three criminal statutes: conspiracy to defraud the government, obstruction of an official proceeding, and conspiracy against rights. The last of these is a Reconstruction-era civil-rights law; specifically, it forbids people from conspiring “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.”
I recently spoke by phone with Daniel Richman, a law professor at Columbia who specializes in federal criminal enforcement. During our conversation, which has been edited for length and clarity, we discussed how these laws have been used historically, how they might be used in this emerging Trump case, and the ways in which they might be challenged.
Why is a Reconstruction-era civil-rights law, 18 U.S. Code § 241, being used in a current voting case? How does that come to be?
The primary focus of so much of Reconstruction-era law was to go after voter intimidation or other means of preventing Black Republicans from voting. So there certainly is an anchoring—we can even say an inspiration—for this statute from voting issues. Now, of course, not much happens with it after Reconstruction, although there are some occasional uses of the precursor to 241. But, largely, 241 and its companion law, 242, are, sad to say, left to rot until around 1939, when the Justice Department gets into the civil-rights enforcement business again. That led to the Supreme Court’s first semi-recent encounter with this civil-rights statute.
During the past fifty years, the average use of 241 or 242 in the United States pertains to police violence or abuses of power in that sort of context. But there still is an important set of cases that show a use of 241 to go after voter problems. Now, I’m being vague here on purpose. Just because there is an effort to do something bad involving voting doesn’t necessarily mean that 241 is available, but it has been used in a wide range of situations.
Obviously, the various efforts we saw to overturn the election results in 2020 and 2021 were not typical voter-suppression or voter-fraud cases. So how could a law like this potentially apply to an alleged effort to get election results overturned?
There are two kinds of answers. If you look at a recent opinion by Nicholas Garaufis, a judge in the Eastern District of New York, in a voter-suppression case, he gives a whole range of cases in which 241 was used in the election context: pollution of the ballot box by submitting ballots from fake voters, stuffing ballot boxes, registration problems that were intentionally caused. So one way of answering that is to say there really has been quite a broad range of situations in which this statute has been used.
The second point, though, is that one of the long-standing concerns of the Supreme Court, when it comes to 241 and 242, is that they’re so capacious. They ostensibly cover any sort of statutory or constitutional-rights violation, so we have to be really careful in how these statutes are being used, because otherwise they would present a due-process and a vagueness problem. Confronting that concern, the Supreme Court in a 242 case essentially said, “Yeah, this is potentially a problem, but it’s something that courts can really police by insuring that the theories that are being pursued under 241 and 242 are the sorts of theories that have been accepted by courts before in a regular set of cases.”
In other words, though the language seems to be incredibly capacious, there has been an effort by—in the first instance the Supreme Court, in the second instance the lower courts—to really prevent the use of this statute in ways that are divorced from prior uses. So the trick if you’re charging 241 is to tell a story to the lower court, to the trial court, and then eventually to the appellate court, about how this isn’t really different from the way it’s been used before.
Isn’t that inherently a problem when you’re charging a former President with trying to overturn an election?
If you phrase it that way, it sounds like it. But I think that’s why the focus is not on who was doing it but on the mechanisms of how it was done. If the mechanism is concocting a spate of phony electors or some such, you could tell a story in which the conduct may be by somebody who has a high position, but it’s not radically different from if it were pursued by people in lower positions.
So the idea may be that behavior such as concocting phony electors—again, we’re speaking hypothetically here—or trying to get someone to throw votes out is really no different from what we might consider more mundane cases of voter fraud in the past?
That’s right. It’s an analogy game in the sense of, Is concocting phony electors really different from stuffing a ballot box? An extra point that gets thrown in here from time to time, and it even came up in the Supreme Court opinion, is that there are some constitutional violations that are so obviously improper that the fact that there aren’t prior cases is not a conversation-stopper. The Supreme Court used the example of welfare officials “selling foster children into slavery.” This hasn’t come up. There’s a reason it hasn’t come up—but, if it were to come up, we wouldn’t say that it’s really unfair to charge a person based on that.
I know everyone’s running around trying to figure out what’s up with the civil-rights charge. But one thing that I think ought to be stressed is that the valuable thing for the prosecution about bringing the civil-rights charge is that it really differs from, let’s say, an obstruction-of-justice charge or a conspiracy to defraud the United States. It puts front and center the injury to the American people. The others have to do with the government. I, like most people, hope that the government belongs to me, et cetera. But civil-rights violations involve an injury to us in a way that is really valuable, because the best thing you can do when you’re framing charges as the prosecutor is really try to capture what’s bad about this, and framing it in a civil-rights context helps do that.
In the text of the law, it says that two or more people must be involved. How important is this?
The difference between 241 and 242, which both have Civil War origins, is that 241 is based on anti-Klan enforcement statutes. The idea was that there has to be a conspiracy. 242 has a state-action requirement—a government official or someone like a government official has to be the defendant. 241 does not have a state-action requirement, because it envisions the targets being people who may not be state actors, who are combining together to violate civil rights. The thought, particularly back in 1870, was that we don’t want to just create this general federal crime to go after private individuals whom states already have laws for going after. We want to go after conspiracies like the Klan. So that’s where the conspiracy requirement is coming from. All it means legally at this point is two or more people, so you can’t charge 241 against a single individual. If you want to charge a single individual and it’s a government official, you would use 242.
Let me also ask you about the obstruction law, which says that it’s a crime to corruptly obstruct, impede, or interfere with any official government proceedings. This statute was originally part of a financial-crime law from 2002: the Sarbanes-Oxley Act. How might it relate here, and why have prosecutors been using it to go after January 6th defendants?
The theory is that what they were doing was a corrupt attempt to interfere with the certification process—and really a proceeding in Congress. That’s the theory of obstruction in those cases, and the D.C. Circuit is in the process of working it through. That said, we don’t know whether that’s the flavor of obstruction that is being pursued here. You could also imagine obstruction charges arising out of conduct such as, let’s say, pushing a witness before the House January 6th committee to change their story. It may be the destruction of evidence. It may be other corrupt efforts to get a witness to change or lie. We don’t know.
In June, we saw obstruction-of-justice counts used in the federal-documents case filed by Jack Smith against Trump. These included both the obstruction statute used here and another statute. In this election case, why would it be a financial law from twenty years ago that could be used? It’s not intuitive.
I wouldn’t get caught up in the genealogy of the statute. Yes, it arose out of the Sarbanes-Oxley case, but there’s a whole sweep of obstruction statutes, of which 18 U.S. Code § 1512 is only one, that target a whole range of conduct involving efforts to derail some sort of proceeding or investigation. But I think besides it being just a rhetorical trope at this point by the defense counsel, the financial-crimes origin of it is largely beside the point.
For some judges, but not all, the obstruction of justice in the Sarbanes-Oxley version needs to focus on some effort to spoil evidence, to intimidate someone from presenting evidence, from lying with respect to evidence to destroying evidence. It’s all evidentiary-based.
The constitutionality of using it to charge January 6th defendants has been challenged, and, like you said, that’s still being litigated. It seems like it would be risky to try to charge Trump under this law. Furthermore, I gather that former Attorney General William Barr argued against broadening it. So I’m trying to understand why this law seems somewhat contentious and what that might signal.
I don’t think anybody in the government right now or even judges necessarily defer to Barr’s judgment on this. But let me first contribute to your question by pushing on what makes this law raise hackles. I don’t think the story is just that it’s really broad, because that’s par for the course for federal criminal statutes. A lot of scholars and, particularly, defendants want to use the Yates case by the Supreme Court—which involved another Sarbanes-Oxley statute targeting obstruction of federal investigations. The Supreme Court doesn’t speak that much about federal criminal statutes. Yates was, for many, an important case. The long and the short is a fisherman destroys a fish. The case goes up to the Supreme Court, and the question is: Does a fish count as a “tangible object” within the meaning of the statute? And the defendant wins. [The case concerned a fisherman who was convicted of obstructing an investigation for throwing a fish overboard so that it couldn’t be used as evidence that he was violating fishing regulations. The Court ruled that a fish cannot be considered a “tangible object” under the law.] The Court uses this case to make some broad statements about the over-breadth of statutes and of this statute in particular and how it really needs to be thought of in a far more limited way, given its origin in the Sarbanes-Oxley law. They are limiting obstruction to things like destroying records or documents.
That’s why 1512 really stands as, for some, a good target for challenges. So why are the prosecutors using it? This case might not have anything to do with the other January 6th cases. It may pertain to other obstructive conduct. But, more important, it’s a nice synergy when you charge obstruction with other counts where the mens rea [“criminal intent”] is being contested. For instance, if Trump wants to say, “I know you don’t think the election was a fraud, but I did. Based on my views of the facts and the legal advice I was getting, I did what I thought I had to do under the circumstances, so I had no intent to defraud the United States, et cetera.” If that’s a defense, it’s really nice to be able to say, “Well, then why did you go and force witnesses or push witnesses to change the story, or why’d you destroy evidence?”
How important is Trump’s state of mind for this case?
Really important. Certainly for all of these charges, there really has to be some evidence that he knew what he was doing was in some sense wrong. If the defense is “I thought the facts were just horrible. I thought the country was being stolen, and I thought I have to as President do the following things”—if the jury credits that, that’s a full defense. So state of mind is really important. Now, obviously, the government would be responding, trying to take apart that claim. But it’s a real claim, and it’s one that really does defeat a mens rea burden of the government.
The last of these three laws is conspiracy to defraud the government, 18 U.S. Code § 371. How would that differ from what we were talking about?
This is the ultimate Swiss Army knife. If the government is a victim, there are innumerable ways in which 371 can be used. You rip the government off financially, that works. You fraudulently fail to give the government information it needs to regulate you, that works. That’s come up in environmental cases. You do insider trading on government information, that works. The cases are often financial fraud on the government. But, more generally, this is a statute that has been read by the Supreme Court to really capture any effort to fraudulently mess with government operations.
It is entirely possible that there’ll be a high degree of overlap between the 241 and the 371 charges. If you envision just hypothetically that the thrust of the 241 charge is an effort to concoct phony electors as part of an effort to deprive people of having their votes properly addressed or dealt with in Congress, that could also be the basis of a 371. The 371 wouldn’t focus as much on the victimization of people as on the victimization of the process or Congress, but the operative facts and the narrative would have a lot in common.
Now I’m being really vague because I don’t have a clue. You can envision different approaches to the 371 from the 241. One thing in general is, given the concerns that are always around because of the constitutional vagueness with 241, if you go off the well-trod path, there’s a risk that it’ll be thought of as an improper, novel use of the statute. 371 would be there as a tried-and-true support for the theory.
So, by telling someone to find votes, you’re defrauding other people who voted. In this case, you’re also defrauding the government in some way.
It’s easier to talk about an effort to deceive the government and deceive Congress. That doesn’t necessarily have to have a rights-based story. That’s just about deceit of government actors. That counts for 371 with an ease that may not be there for 241. ♦