Legal experts unpack 'surprise' as Trump could be charged under 19th-century anti-racism law

The target letter from special counsel Jack Smith to former President Donald Trump signifying a likely indictment under the January 6 investigation contains possible charges that many legal experts were predicting: namely, conspiracy to defraud the United States and obstruction of an official proceeding.

But the letter also included a third statute that experts weren't expecting: 18 U.S.C. § 241, or conspiracy to deprive people of rights — a 19th-century law used to prevent racist subjugation of emancipated slaves. Writing for Slate, legal experts Norm Eisen, Ryan Goodman, Joshua Kolb, and Jacob Gaba outlined how this unexpected "surprise" charge actually makes a lot of sense.

"The law currently codified as 18 USC § 241 was passed during Reconstruction to allow the federal government to prosecute those who used violence to prevent formerly enslaved people from voting," they reported. "'But in the modern era,” as the [New York Times] writes, 'it has been used more broadly, including in cases of voting fraud conspiracies.'" The Justice Department's manual on election offenses even states that “Section 241 should be considered when addressing schemes to thwart voting in federal elections.”

Specifically, said the report, Trump and his co-conspirators could be charged over the "nonviolent but illegal means Trump and ... lawyer John Eastman, urged upon Mike Pence, as well as the last resort when Pence refused: the use of mob violence. Through those courses of conduct, Trump, acting with one or more others, attempted to prevent Congress from certifying the election of the president that the voters had actually selected." Under the statute, all voters who cast a ballot for Joe Biden, or perhaps even all voters who cast a ballot period, could be named as victims of the crime.

Moreover, they noted, local prosecutors all over the country have rounded up threats against election officials that were inspired by Trump and his associates' conspiracy threories, which would potentially bolster the case.

"If the reporting is accurate, Smith will be bringing a clear and strong case against the former president relying on well-settled Justice Department and judicial precedents," they concluded.