Trump May Be Charged for a Second Time Under Law That Could Provide for the Death Penalty

With an indictment in respect of January 6 expected to be handed up any day against President Trump, a law used to prosecute the Ku Klux Klan and child traffickers — and that sometimes carries the death penalty and was used against officers tried for killing George Floyd — is now a card in Special Counsel Jack Smith’s prosecutorial deck. The statute, 18 United States Code § 241, outlawing the deprivation of rights under color of law, is one of three that ABC News reports was comprised in the target letter Mr. Smith sent to Mr. Trump ahead of the likely handing up of charges. The other crimes reportedly mentioned — conspiracy to defraud the United States and obstruction of an official proceeding — were cited by the January 6 committee in its criminal referral. Mr. Smith’s reference to § 241 suggests that Mr. Smith’s prosecution is not averse to charging creatively. It is also the second statute under which he has charged Mr. Trump — after the Espionage Act, with respect to Mar-a-Lago — that could authorize execution. This one, though, is likely attractive for its flexibility as much as its severity.The law makes it illegal when “two or more persons conspire 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.” It also, remarkably, applies when “two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege.”Department of Justice guidance explains that the “offense is always a felony, even if the underlying conduct would not, on its own, establish a felony violation of another criminal civil rights statute.” It is a species of conspiracy, but with a crucial difference: No overt act is required to further it, as would usually be mandated. This means an unconsummated plot could suffice for a conviction. Another benefit § 241 offers prosecutors is that it requires action only under “color of any law, statute, ordinance, regulation, or custom.” The DOJ’s Civil Rights Division explains in a memorandum that it encompasses not only actions done by officials within “lawful authority, but also acts done beyond the bounds of that official’s lawful authority.”In civil suits brought by Democratic lawmakers seeking to hold Mr. Trump responsible for the events of January 6, 2021, the former president has argued that his speech in advance of the riot was protected by executive privilege as a presidential act. Analogously, he has argued — albeit unsuccessfully — that his hush money case belonged in federal court because it is based on “official acts.” Deprivation under the color of law would allow Mr. Smith to elide that distinction. The Supreme Court, in Screws v. United States, from 1945, held that to secure a conviction under the law, prosecutors must convince a jury that the defendant possessed “a specific intent to deprive a person of a federal right made definite by decision or other rule of law.” That “purpose need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act.” Like seditious conspiracy, another potential charge connected to January 6, deprivation of rights under color of law grew out of the Civil Rights Act of 1866. It carries a one-year sentence, which jumps to 10 years if bodily harm is involved. It ordains that a violator “may be sentenced to death” if the deprivation finds expression in attempted or attempted or actualized death, kidnapping, or sexual abuse. This inclusion of provisions of escalating severity is mirrored in the Espionage Act, the engine of the Mar-a-Lago case. Mr. Smith has charged Mr. Trump for “unauthorized possession of, access to, or control” to any material “relating to the national defense,” which, like deprivation under color of law, could carry a 10-year sentence. Another espionage clause, though, which sent Julius and Ethel Rosenberg to the electric chair, allows for execution. Those enhancements appear unlikely to apply to Mr. Trump in either case, unless prosecutors attempt to tie his speech at the Ellipse to the bodily harm, and deaths, that ensued during the subsequent rioting. A more probable approach is one that homes in on alleged efforts by Mr. Trump to overturn the 2020 election results via pressure on state officials, as in Georgia, and through the promotion of alternative electors. The Supreme Court, in Anderson v. United States, from 1974, held that conviction requires the “intent to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots.” Writing for the majority, Justice Thurgood Marshall held that every voter “has a right under the Constitution to have his vote fairly counted.” The court found that the defendants “knowingly participated in a conspiracy which contemplated the casting of false votes for all offices at issue in the election.”Anderson turned on fraudulent votes submitted for federal, state, and local candidates in a West Virginia primary. The case against Mr. Trump, though, is a notch different because it concerns Electoral College certification rather than illicit stuffing of the ballot box. Mr. Smith would likely argue that Mr. Trump — and at least one other co-conspirator — attempted to deprive the seven states from which alternative electors were drawn of the integrity of their votes. Unlike many instances where § 241 is charged — its roots snake back to Jim Crow — no indication of racial animus has surfaced. The most common deployment of the statute in recent years has been against police officers for acts of alleged brutality. A Missouri state trooper, Brett Hankinson, was charged with its violation when he allegedly used unconstitutional excessive force during the raid at Breonna Taylor’s home. He was acquitted. Officers involved in the death of George Floyd were convicted under the statute’s terms. One criminal defense firm based at Boston, the Simons Law Office, notes to prospective clients that “the charge of deprivation of rights under color of law is as severe as criminal cases get.”

Trump May Be Charged for a Second Time Under Law That Could Provide for the Death Penalty

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