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Of the three charges reportedly in Donald Trump’s latest target letter from special counsel Jack Smith, one that stood out is conspiracy against rights. If you’re wondering how that law has been applied, the Justice Department just used it to secure a recent conviction against a Trump supporter for election interference — in the 2016 election, that is.
So this recent case could be useful to understanding the law’s potential relevance to a Trump prosecution for his efforts to overturn the 2020 election he lost to Joe Biden.
That statute, Section 241 of Title 18 of the United States Code, prohibits conspiring “to injure, oppress, threaten, or intimidate any person ... 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.”
The government secured the recent conviction under that law in March against Douglass Mackey. As the DOJ put it in a news release after the jury’s verdict:
[Mackey] conspired with other influential Twitter users and with members of private online groups to use social media platforms, including Twitter, to disseminate fraudulent messages that encouraged supporters of presidential candidate Hillary Clinton to ‘vote’ via text message or social media which, in reality, was legally invalid.
The DOJ cited, among other things, a tweet from Mackey “depicting an African American woman standing in front of an ‘African Americans for Hillary’ sign. The ad stated: ‘Avoid the Line. Vote from Home,’ ‘Text ‘Hillary’ to 59925,’ and ‘Vote for Hillary and be a part of history.’”
Mackey’s aim to depress Black turnout was apt against the backdrop of Section 241. In a recent piece for MSNBC, Jessica Levinson noted the law’s Reconstruction-era roots and, accordingly, deemed it a “sad but fitting reality that federal statutes used to charge Southern white people and members of the Ku Klux Klan with using terrorist tactics to prevent Black people from voting may now be applicable to conduct undertaken by the former president of the United States.”
As for the law’s potential application to Trump, the law professor noted that one way could be the “fake electors” scheme that was hatched to nullify votes for Biden. Levinson also pointed to Trump’s infamous pressuring of Georgia officials to “find 11,780 votes” that would have likewise thwarted the rights of actual voters.
Any appeal in Mackey’s case could already be significant as to the role of criminal law against disinformation. If Trump is charged under the same law, the appeal would be watched even more closely.
Mackey is awaiting sentencing in October, and his lawyer has said he’ll appeal. During litigation at the trial level, among the defense arguments was a First Amendment claim that the law can’t criminalize the disinformation he spread. But the case was about “conspiracy and injury, not speech,” a federal judge wrote in rejecting Mackey’s motion to dismiss the indictment earlier this year.
Any appeal in Mackey’s case could already be significant as to the role of criminal law against disinformation. If Trump is charged under the same law, the appeal would be watched even more closely.
It’s hard to see Trump’s fate being tied to such an appeal, given that the legal case against the former president would seemingly go far beyond the narrower conduct with which Mackey was charged and, also unlike Mackey’s case, a Section 241 charge likely wouldn’t be the only charge Trump faces in Smith’s 2020 election probe — saying nothing of the former president’s cases in other jurisdictions.