Trump is charged under civil rights law used to prosecute KKK violence

A carload of White men who attacked an interracial couple with rocks and bricks.

A member of the Ku Klux Klan who built a cross, wrapped it in sheets soaked in gas and oil and instructed two others to set it ablaze in front of the home of a family of Mexican and Puerto Rican descent.

A social media influencer who spread misinformation aimed at preventing people from voting.

And now, a former president of the United States.

When Donald Trump was indicted Tuesday and accused of trying to subvert the results of the 2020 presidential election, he found himself in the unenviable company of defendants charged under a criminal statute dating to the Reconstruction era.

The statute, Section 241 of Title 18 of the U.S. Code, was originally adopted as part of the Enforcement Act of 1870. It was the first in a series of measures known as the Ku Klux Klan Acts designed to protect rights codified in the 13th, 14th and 15th amendments, collectively called the Reconstruction Amendments. Section 241 makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” exercising a right protected by the Constitution or federal law.

The 45-page indictment secured by the special counsel, Jack Smith, accuses Trump of a “conspiracy against the right to vote and to have one’s vote counted,” in violation of Section 241. The alleged offense under Section 241 is among four counts included in the indictment, which argues that Trump, along with six unnamed co-conspirators, eroded trust in the administration of the election and “pursued unlawful means of discounting legitimate votes and subverting the election results.”

Those means, according to the indictment, included strong-arming state officials to change electoral votes won by Joe Biden and recruiting “fraudulent electors” in swing states prepared to override the will of voters.

The alleged conspiracy included using the authority of the Justice Department to create doubt about the election results and encourage the presentation of those illegitimate electors as alternatives to Biden’s valid electors.

[Here are the Trump co-conspirators described in the Justice Department indictment]

And, according to the indictment, it involved pressuring Vice President Mike Pence to delay or thwart the certification of Biden’s victory on Jan. 6, 2021, and capitalizing on the violence unleashed that day to “levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims.”

Steven Cheung, a spokesman for the former president, cast the indictment as an attempt to interfere in the next presidential election, saying, “Why did they wait 2½ years to bring these fake charges, right in the middle of President Trump’s winning campaign for 2024?”

Initially wielded against the Klan for keeping newly emancipated Blacks from exercising their right to vote, Section 241 has also been used to prosecute a wider range of election subversion, including threatening or intimidating voters, impersonating voters, destroying ballots and preventing the official count of ballots. It has also become a linchpin of broader civil rights enforcement, used to punish hate crimes and law enforcement misconduct. Derek Chauvin, the police officer who pressed his knee into George Floyd’s neck in Minneapolis, pleaded guilty in 2021 to violating a related statute, Section 242, which makes it a crime for public officials, acting in their official capacity, to deny a person’s constitutional rights.

“For a former chief executive to be charged with a violation of not just a federal law, but a federal law about the exercise of federal rights, is astonishing,” said Frederick M. Lawrence, a former federal prosecutor in Manhattan and the author of “Punishing Hate: Bias Crimes Under American Law.”

As the charges against Trump mount, Lawrence said, “we can’t lose the ability to be shocked by this case.”

Even those who have prosecuted cases under the statute, or studied its terms, were surprised by its inclusion in the Trump indictment. It wasn’t among the offenses included in the December 2022 referral of Trump for criminal prosecution made by the House select committee investigating the Jan. 6 attack on the Capitol.

Timothy J. Heaphy, the committee’s lead investigator and a former U.S. attorney for the western district of Virginia, said the Justice Department may have found that Trump deprived Americans of their right to have a free and fair election under processes laid out by federal law.

“We did not put that . . . statute in our referral, but I could see a path to charging it,” Heaphy said. “They’re trying to identify the crimes that most fit the conduct.”

The Reconstruction amendments, and the legislation passed to enforce them, marked a dramatic expansion of federal power to protect civil and political rights - a remaking of the Constitution so profound that historians have called it the nation’s “second founding.”

Courts soon defanged Section 241 and other cornerstones of Reconstruction. In 1876, the Supreme Court reversed the criminal convictions of several members of a White mob that killed Black men during the infamous Colfax massacre, an insurrection against Louisiana’s Reconstruction government. The decision, in U.S. v. Cruikshank, was the most notable in a series of rulings narrowing the scope of rights covered by the provision.

Expansive civil rights legislation and vigorous enforcement in the mid-20th century breathed new life into Section 241, which was used to prosecute members of the Ku Klux Klan who carried out the 1964 Freedom Summer murders. In 1981, four White men, who assaulted a young Black man and his White wife driving through Alabama, were charged under the statute. A Ku Klux Klan member who oversaw the burning of a cross in the front yard of a Puerto Rican man and his Mexican wife was indicted in 1999 under the law.

[Trump has now been indicted for a 3rd time. Here’s where all the investigations stand.]

For more than a century, meanwhile, the law has been used to punish election interference, in cases as disparate as an Oklahoma election board’s omission of precincts in a congressional election and a Kentucky mayor’s involvement in fraud, vote buying and identity theft. The George Floyd Justice in Policing Act that passed the House in 2021 included $25 million for increased enforcement of Section 241 and the companion Section 242, but the legislation stalled in the Senate.

Federal prosecutors this year won a conviction under Section 241, and court filings and judicial rulings in the case could be informative for the Justice Department’s case against Trump, according to Quinta Jurecic, a Brookings Institution fellow who has written about the case. Douglass Mackey, also known as “Ricky Vaughn,” is set to be sentenced in October after being found guilty by a Brooklyn federal jury of plotting to deprive individuals of their constitutional right to vote.

Mackey was an influential far-right Twitter user active during the 2016 election. He routinely retweeted accounts such as @TEN_GOP, named for the Tennessee Republican Party but run by a Russian troll farm, prosecutors have said. He also promoted a fraudulent social media campaign to suppress Black voter turnout for Democratic nominee Hillary Clinton by encouraging supporters to “vote from home” via text message or social media, a legally invalid method.

Mackey was charged Jan. 22, 2021, and prosecutors said Mackey’s online activity crossed the line from protected free speech to a criminal scheme “to subvert the ballot box and suppress the vote.”

In pretrial filings, prosecutors defended use of the 1870 law, citing Supreme Court precedent that defended both the right of citizens to cast a ballot and to have that ballot counted: “We regard it as equally unquestionable that the right to have one’s vote counted is as open to protection by Congress as the right to put a ballot in a box.”

Mackey argued that he lacked “fair warning” that his conduct was illegal because of the novel use of the statute. But the government argued that the law could apply to “new means” to infringe the rights of others. Mackey’s trial judge agreed. “For more than a century, courts have held that this statute flexibly proscribes conspiracies to injure the right to vote in a variety of contexts and undertaken using a variety of mechanisms,” concluded U.S. District Judge Ann M. Donnelly.

Violations of Section 241 are felonies punishable by up to 10 years in prison or longer if someone is killed and, significantly, don’t require the conspiracies to be successful.

Tor Ekeland, a defense attorney who represented Mackey before his case went to trial, said he shares neither his former client’s nor Trump’s politics but fears that prosecutors have taken advantage of the “elastic” nature of the statute. “It’s a prosecutorial blank check,” he said.

“There’s a big difference between showing up at a polling site with your buddies with guns and posting a Twitter meme,” Ekeland said.

Still, he said prosecutors have a “stronger causal case with Trump than with Mackey.”

Jeannine Bell, a professor at the Loyola University Chicago School of Law who has studied the significance of the law in penalizing anti-integrationist terror such as cross burnings, said its application to the former president is not entirely unorthodox.

“The statute is best known in the context of extremists and Klan violence, but it has been used for people who are not robe-wearing extremists,” she said.

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The Washington Post’s Rachel Weiner contributed to this report.