OPINION: Congress should pass a law against election interference

Special Counsel Jack Smith’s indictment of former president Donald Trump correctly charges that he unlawfully tried to subvert the 2020 election. But because Congress never imagined a president acting so brazenly, there is no existing federal law that expressly makes that specific conduct a crime. Smith had to rely on statutes designed for fraud and obstruction of government proceedings to make his case.

The Smith indictment is legally sufficient, to be sure. It should and will survive judicial review. But it’s not enough, on its own, to protect us from a future sitting president who tries to break democracy. We need a new statute, one that squarely targets lying to subvert the legitimate results of a democratic election.

The statute should be simple. It could read, “It shall be a crime knowingly to lie about election results with the intent to subvert the legitimate outcome of a federal election.” That language captures Trump’s troubling behavior. And it would not violate the First Amendment, because subverting the legitimate outcome of a federal election is a course of conduct, not mere speech.

It would also allow one-stop shopping for a future prosecutor faced with similar facts. And although the charges brought by Smith are all legally sound, it isn’t ideal that he had to rely on statutes that were designed for other goals.

Provided you are a textualist who thinks statutes should be interpreted according to their text, not their purpose or their legislative history, there’s no problem with Smith’s charges. Yet although textualism is the theory of statutory interpretation espoused today by a majority of the Supreme Court justices, it’s not the only theory of statutory interpretation or even the best one. Historically, statutes were also interpreted by asking about their purpose or about the intent of the legislature that passed them. Because I’m sympathetic to this school of statutory interpretation, I’d like to see a statute that clearly and explicitly criminalizes election-subverting behavior.

To see why a new statute is called for, consider Smith’s first charge, conspiracy “to defraud the United States.” Here’s the Supreme Court explaining its meaning in a 1924 opinion by Chief Justice William Howard Taft, the only person to serve as both president and (subsequently) chief justice:

To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.

From this definition, you can see why the statute is a useful one for Smith. Trump wasn’t trying to cheat the government out of money, so the primary meaning of the statute doesn’t apply. He was, however, according to Smith’s allegations, deceitfully and dishonestly trying to interfere with a governmental function, namely counting the votes fairly and deciding the election.

Smith’s indictment does a thorough job of demonstrating this interference. The indictment points to Trump’s efforts to pressure state officials to change electoral votes to favor Trump; the organization of false slates of electors in seven states; Trump’s attempt to get the Department of Justice to conduct sham election investigations; the attempt to get Mike Pence not to certify the electoral votes in Congress; and the continued pushing of election lies while the mob occupied the Capitol.

The limitation lies in the idea that Trump’s fundamental crime was “interfering” with a governmental function and that his method of interfering was lying. As the indictment itself concedes, Trump had a First Amendment right to lie about the election results. What if Trump hadn’t tried to get Pence and state election officials to overturn the vote? What if he had stopped at repeating the lie that he’d won? If he had managed to convince others to follow his lead, and they changed the result of the election, would that have been Trump’s crime? Smith’s indictment hints that it might not be. Trump’s defense lawyers will doubtless argue that that is exactly what in fact happened.

It emerges that there is a potential gap that needs to plugged by a new statute. It should be an explicitly defined crime to knowingly lie about election results with the intent to convince others to reverse the results of the election.

The second and third counts, conspiracy “to obstruct an official proceeding” and attempting to do the same, come from a provision of the Sarbanes-Oxley Act that has to do with destroying records to interfere with a government investigation. The language certainly matches Trump’s activity, and any textualist worthy of the name would have to say that it covers Trump’s conduct. Yet it’s far from clear that the Sarbanes-Oxley provision was intended to bar conduct like Trump’s, or that his conduct falls within the purview of the statute’s purpose.

The fourth and final charge, “conspiracy against rights,” is a civil rights statute that goes back to Reconstruction. It makes it a crime to conspire to “injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured … by the Constitution.” Smith’s indictment says that Trump conspired to block the right to vote and to have one’s vote counted.

So he did, if you take the text literally. But the purpose and original intent of the statute could also be interpreted more narrowly. Trump was not out in the street physically trying to block the votes from being counted. Despite the House select committee’s conclusion that his “Be there, will be wild!” tweet inviting protestors to the Capitol on Jan. 6 amounted to a “call to arms,” it is not clear to me that a jury will agree that it meets the legal definition of conspiracy.

The upshot is that, while Smith’s charges should stand up in court, we shouldn’t rely on these statutes alone to address the potentially recurring problem of a sitting president trying to subvert democracy through election denial.

New statutes are always needed to address what the law calls a “mischief” that had not previously been contemplated. And Congress had never before anticipated that a president would so brazenly seek to violate the most fundamental principle of democracy, namely that election results should be followed.

Counting the votes and declaring a new president isn’t just an official government function or proceeding. It’s the very basis of democracy. It deserves to be protected by its own law.

Noah Feldman is a Bloomberg Opinion columnist.

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