Conspiracy Against Rights

Marchers chant during the Black Voters Matter's 57th Selma to Montgomery march on March 9, 2022, in Selma, Alabama. | Brandon Bell/Getty Images

We know a bit more about the third statute listed in the target letter sent by the Justice Department to ex-president Donald Trump. Originally reported as “Deprivation of Rights under Color of Law,” which is in the books under 18 U.S.C. Sec. 242, reporting last night by the New York Times shifted that one section over, to Section 241, a statute entitled “Conspiracy Against Rights.” 

It’s a small but important shift. Both Sections 241 and 242 were enacted in the wake of the Civil War in order to protect Blacks from having their constitutional and legal rights stripped away, whether by the violent brutality of the KKK or by fraud at the ballot box. Section 241 specifically has been used over the decades, and even quite recently, to protect citizens against voting fraud conspiracies. 

This is an update to yesterday’s piece in light of the new information about the surprise criminal code section contained in the target letter. The inclusion of Section 241 should have Trump and his cohorts very concerned. And as I’ll discuss below, it could complete a critical part of the legal and historical narrative around the case against Trump in his attempts to overturn the 2020 election.

Section 241: text and history

Both Sections 241 and 242 address the importance of core civil rights and the serious crime of seeking to deprive others of them. While Section 242 discusses abuses of power under “color of law,” Section 241 addresses conspiracies directly:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same…

They shall be fined under this title or imprisoned not more than ten years, or both

This statute originally took aim directly at the KKK, giving federal agents power to go after the organization for conspiring to terrorize newly freed Blacks from exercising their right to vote. In the modern era, Section 241 has been used to charge defendants who conspired to cheat at the ballot box, for example by vote tampering or to disenfranchise voters by misleading them. Let’s look at that case law a bit, because it is highly instructive.

Vote tampering

A case out of the 1950s sheds important light on how Section 241 applies broadly. In Prichard v. United States, the defendant and his law partner were indicted under Section 241 for conspiracy to stuff ballot boxes in Bourbon County, Kentucky, during the general election of November 1948. 

At issue was whether something like ballot box stuffing, which didn’t injure any one person in particular, could constitute a violation of Section 241:

It is argued by the appellant that so phrased the section is limited to the protection of the individual rights of citizens and was not intended to vindicate a general interest in the purity of elections; that 254 forged ballots constituted but an infinitesimal fraction of the votes cast in the election and did not affect the outcome of a single contest in any precinct; that this, together with the fact that Bourbon County is traditionally Democratic, shows complete absence of any intent to affect the outcome of the election.

The Sixth Circuit rejected this argument as having “no merit.” It cited the U.S. Supreme Court in United States v. Saylor, which had examined a similarly worded criminal code. The Sixth Circuit wrote,

The deposit of forged ballots in the ballot boxes, no matter how small or great their number, dilutes the influence of honest votes in an election, and whether in greater or less degree is immaterial. The right to an honest court is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.

That has some real implications here. Trump and his cronies set out on a campaign to tamper with the national election results through intimidation and forgery. In Georgia, for example, Trump made an infamous phone call to Secretary of State Brad Raffensperger in which he pressured him to “find” another 11,780 votes. And across the battleground states, the Trump Campaign, at the ex-president’s direction, organized fake slates of electors who signed false certifications designed to ensure that the real votes were “nullified” by decree of Mike Pence at the electoral count on January 6, 2021.

If, as is likely, Jack Smith’s federal grand jury indicts Trump for conspiracy against rights under Section 241, Trump’s and his co-conspirators’ nationwide efforts to illegally deprive others of the value of their votes will be front and center of the case.

Election misinformation

Brandon von Grack, who is co-chair of National Security practice at the law firm of Morrison Foerster, noted a more recent case under Section 241 that is also rather intriguing and on point. 

A man named Douglass Mackey, also known as “Ricky Vaughn,” was convicted in March of this year by a federal jury under Section 241 for conspiracy against rights based on his efforts to deprive individuals of their right to vote. 

In 2016, Mackey conspired with other influential Twitter accounts and private online groups to disseminate fraudulent messages encouraging Hillary Clinton supporters to “vote” via text message or social media—methods that of course were legally invalid. A February 2016 outside analysis had ranked Mackey as the 107th most important influencer of the then-upcoming Presidential Election.

Here’s what the Justice Department said upon his conviction:

Mackey has been found guilty by a jury of his peers of attempting to deprive individuals from exercising their sacred right to vote for the candidate of their choice in the 2016 Presidential Election. Today’s verdict proves that the defendant’s fraudulent actions crossed a line into criminality and flatly rejects his cynical attempt to use the constitutional right of free speech as a shield for his scheme to subvert the ballot box and suppress the vote.

In Trump’s case, he and his campaign attempted before the election to knowingly spread misinformation about the security and integrity of mail-in ballots and to suppress their use. These were the very kind of ballots most likely to be utilized by Democrats. And after the election, they attempted to invalidate votes outright by spreading election misinformation, conspiracies and baseless claims about voting machines and election software systems. 

Trump and his campaign knew these stolen election claims were false, but they repeated them anyway and used them to file over five dozen frivolous lawsuits; to grift hundreds of millions of dollars from the MAGA base; and ultimately to rile up Trump’s most loyal supporters, gather them in Washington for a “wild” day, and then unleash them upon the Capitol in a violent, last ditch effort to stop the electoral count and the peaceful transfer of power.

Echoes of Jim Crow

Missing from the reporting I have read on Section 242 and its applicability today is the fact that we are still today talking about Black voters being disenfranchised by Trump and his campaign’s illegal actions.

When the Trump campaign sought to invalidate votes, they targeted predominantly Black counties, and they didn’t even try to hide that fact. For example, in Wisconsin, they filed suit to throw out the votes in Milwaukee and Dane counties only. These counties are considered African American strongholds. In Pennsylvania, the target was Philadelphia. In Georgia, it was Atlanta. In Michigan, it was Detroit. The pattern was unmistakable.

“It is difficult for me to think of another president in modern time who has literally driven a national scheme to disenfranchise Black voters and other voters of color en masse, in the way that we see with these post-election lawsuits,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law during the aftermath of the November 2020 elections. Clarke claimed, correctly, there was “racial motivation” in Trump’s focus on cities like Detroit, Philadelphia and Atlanta.

Clarke, I should note, is now head of the Justice Department’s Civil Rights Division.

It feels highly appropriate, and even karmic, that a Civil War statute designed to check the violent efforts of the Klan to keep Blacks from voting could ensnare Trump today. His attacks upon the votes of Black citizens during the November 2020 election were part of a larger criminal conspiracy specifically targeting those rights. 

What we are witnessing in legal accountability for Trump is thus also part of a longer historical narrative for racial justice. Trump tried to win by selectively throwing out legitimate Black votes, then substituting fake white electors and inciting a largely white mob to secure his power. 

And in charging him under Section 242, the Justice Department acknowledges this deep and grievous wrong and seeks to set it right.