For the prospective charges against Donald Trump, for his role in trying to overturn the results of the 2020 election, a law professor says, “there really has to be some evidence that he knew what he was doing was in some sense wrong.”
; specifically, it forbids people from 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.”
During the past fifty years, the average use of 241 or 242 in the United States pertains to police violence or abuses of power in that sort of context. But there still is an important set of cases that show a use of 241 to go after voter problems. Now, I’m being vague here on purpose. Just because there is an effort to do something bad involving voting doesn’t necessarily mean that 241 is available, but it has been used in a wide range of situations.
In other words, though the language seems to be incredibly capacious, there has been an effort by—in the first instance the Supreme Court, in the second instance the lower courts—to really prevent the use of this statute in ways that are divorced from prior uses. So the trick if you’re charging 241 is to tell a story to the lower court, to the trial court, and then eventually to the appellate court, about how this isn’t really different from the way it’s been used before.
That’s right. It’s an analogy game in the sense of, Is concocting phony electors really different from stuffing a ballot box? An extra point that gets thrown in here from time to time, and it even came up in the Supreme Court opinion, is that there are some constitutional violations that are so obviously improper that the fact that there aren’t prior cases is not a conversation-stopper. The Supreme Court used the example of welfare officials “selling foster children into slavery.
I wouldn’t get caught up in the genealogy of the statute. Yes, it arose out of the Sarbanes-Oxley case, but there’s a whole sweep of obstruction statutes, of which 18 U.S. Code § 1512 is only one, that target a whole range of conduct involving efforts to derail some sort of proceeding or investigation. But I think besides it being just a rhetorical trope at this point by the defense counsel, the financial-crimes origin of it is largely beside the point.
The case concerned a fisherman who was convicted of obstructing an investigation for throwing a fish overboard so that it couldn’t be used as evidence that he was violating fishing regulations. The Court ruled that a fish cannot be considered a “tangible object” under the law.
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