At the heart of the Justice Department’s twin cases against former President Donald Trump are two statutes so rarely used that one had been invoked by federal prosecutors only about a dozen times in the past 20 years.
Federal prosecutors investigating the Jan. 6, 2021, riot at the U.S. Capitol sent a letter last week suggesting that Mr. Trump could be charged with violating a federal law enacted to crack down on post-Civil War voting intimidation.
Special counsel Jack Smith also invoked an arcane law in a case accusing the former president of illegally mishandling classified documents. The Espionage Act, a law from World War I, was aimed at spies.
John Yoo, a law professor at the University of California, Berkeley, said Mr. Smith is using these arcane laws in Trump cases because a former U.S. president had never before been prosecuted.
“These older, obscure statutes are coming up in these Trump cases because trying to criminally prosecute a former president is without precedent,” said Mr. Yoo, who served as deputy assistant attorney general under President George W. Bush. “There are no criminal statutes aimed at presidential conduct or the conduct of a presidential candidate.”
Curt Levey, head of the Committee for Justice, a judicial reform group, offered a different explanation.
“The Justice Department made up their mind that they were going to charge Trump for something and searched high and low for a statute that — that even if rarely used and very old — can be cobbled together for a theory that Trump violated it,” he said.
Mr. Smith’s letter referred to three criminal statutes, including conspiracy to defraud the government and obstruction of an official proceeding.
It was the third criminal law that caught legal analysts by surprise. The letter cited a statute that makes it illegal to deprive citizens of the free exercise of constitutional rights, such as voting.
The statute, Title 18, Section 241 of the U.S. Criminal Code, was drafted during Reconstruction to crack down on Whites in the South, including Ku Klux Klan members, from stopping formerly enslaved Black people from voting. A conviction carries up to 10 years in prison.
Just because the target letter referenced Section 241 does not mean Mr. Trump will be charged with violating the law or even that he could face criminal charges.
Still, legal scholars were surprised to see the Section 241 reference.
Mr. Yoo said he thinks it is the first time the section has been used against a federal official.
“It’s typically used against state and local officials and people conspiring with the Ku Klux Klan. It’s a real stretch in this case and reflects uncertainty on the part of the special counsel about the charges they are bringing,” he said.
Section 241 makes it a crime to conspire to “injure, oppress, threaten or intimidate” a person exercising “any right or privilege” secured under the Constitution.
The use of Section 241 instead of a potential sedition or insurrection charge raised eyebrows. Mr. Trump was widely expected to face those charges in the case of the Capitol riot, but the target letter does not list either.
It’s unclear how Mr. Smith intends to argue that Mr. Trump violated the statute. One theory is that he would cite a 1974 Supreme Court opinion expanding Section 241 violations to include cases of voter fraud conspiracies. In that case, the court held that West Virginians who cast fake ballots on a voting machine violated Section 241 because it distorted votes that were counted fairly.
Mr. Smith could argue that the law applies to Mr. Trump’s pressure on the Georgia secretary of state to find enough votes to overcome Joseph R. Biden’s win of state electors. He could also try to make the case that Mr. Trump violated the statute with his plan to appoint fake electors in states won by Mr. Biden to block or delay certification of Mr. Biden’s 2020 election win.
Josh Blackman, a constitutional law professor at South Texas College of Law, said each application would be a stretch.
“There is a risk in bringing in these novel crimes where there isn’t a lot of precedent. It doesn’t always work,” he said. “A judge can say the statute doesn’t apply or the jury could acquit.”
It’s also unclear how Mr. Trump might have blocked the counting of votes, Mr. Blackman said. At the time of the phone call to Georgia’s secretary of state or the fake elector scheme, votes had been counted fairly.
“It’s not like Trump was taking legitimately cast votes and stuffing them in his pockets. He made a phone call asking if there were votes to be counted, and I’m sure his lawyers will make that argument,” he said.
Using obscure statutes seems to be part of Mr. Smith’s playbook in Trump investigations. He also surprised legal watchers by charging Mr. Trump under the Espionage Act in the classified documents case.
Mr. Trump is one of a little over a dozen people charged in the past 20 years with willful retention of classified documents. Most of the others were little-known defendants in cases that rarely made headlines.
The Espionage Act has been relatively rare and limited to spies. It was used to convict Julius and Ethel Rosenberg, who were found guilty in 1951 of giving nuclear secrets to the Soviet Union.
Mr. Smith isn’t the only prosecutor to use obscure laws against Mr. Trump and his associates. Special counsel Robert Mueller wielded the little-used Foreign Agents Registration Act to charge former Trump campaign chairman Paul Manafort, deputy Rick Gates and National Security Adviser Michael Flynn.
Until then, the Foreign Agents Registration Act sat dormant. The Justice Department had initiated only seven cases, two of which ended with the charges dismissed, from 1966 through 2015.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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