Because there are good reasons for Congress not to write the kinds of penal laws Jack Smith needs to justify an indictment, he is in a bind.
Because there are good reasons for Congress not to write the kinds of penal laws Special Counsel Jack Smith needs to justify an indictment, he is in a bind.
I t was not really tongue-in-cheek of me to observe, in last week’s column on the Hunter Biden debacle in Delaware, that the Biden Justice Department’s next move was to file an indictment . . . of Donald Trump. Of course, we did instantly get a new indictment — a superseding instrument that added a new defendant and new charges against the former president in the Mar-a-Lago documents caper. But that didn’t really step on the Biden corruption story the way Democrats had hoped, and I was really thinking of a new indictment in connection with the scheme to undo President Biden’s 2020 election victory. It is widely believed, including in the Trump camp, that that indictment is imminent — perhaps as early as today.
Such an indictment — as opposed to an indictment of Hunter Biden, which, stunning as this may seem, the Biden Justice Department is in no hurry to bring in the investigation’s fifth year — would be the best way to drown out the bad Biden news. Biden’s ace in the hole is his predecessor. Trump plays the role with brio (because brio is a good look in contrast to Biden’s senescence, and for now, it also suits Trump’s interest in locking up the Republican nomination), and, unlike Biden scandals, criminal and civil lawsuits against Trump get intense media coverage. Meanwhile, Joe can go to the beach — which is to his presidency what the basement was to his campaign.
I thus want to make a few points about the latest creative legal theory that Smith is said to be noodling over in the ceaseless effort to pigeon-hole Trump’s post-2020 election misconduct into some kind of felony penal offense: the notion that his “stop the steal” shenanigans violated federal civil-rights laws.
First, some preliminaries. With the caveat that we must wait to see any indictment before fully assessing its merits, I’ve expressed skepticism about some of the charges it is anticipated Smith will file — in particular, the charges of conspiracy to defraud the United States and corrupt obstruction of an official proceeding (both involving Congress’s January 6 counting of state-certified electoral votes, which in this instance ratified then-president-elect Biden’s victory).
I have further noted, on the other hand, that Smith would be on firmer footing if he had evidence of a conventional fraud case along the lines of the House January 6 committee’s allegation that Trump and his campaign raised as much as $250 million on what the committee maintains was a false premise — i.e., that contributions would go to a fund that would be used to fight the election fraud by which the former president insisted (and continues to insist) his opponents stole the election. In fact, the committee concluded, no such fund actually existed and at least some of the money raised was diverted to purposes having nothing to do with investigating election fraud.
To repeat, I do not have enough information to evaluate whether Smith could prove that allegation. (As we’ve observed, the House January 6 committee addressed it in Appendix 3 of its final report, but that was a one-sided investigation.) Such a scheme, however, would undoubtedly be within the ambit of fraud as the Supreme Court has construed it in federal law — a scheme to bilk victims out of money or tangible property. This is in contrast to schemes designed to deceive for purposes of non-tangible gain, such as depriving people of honest government. There is no gainsaying that such conduct is reprehensible, but it is simply not actionable under fraud statutes as Congress has written them.
Again, we don’t know everything Smith is in a position to prove, yet it appears that the civil-rights theory of prosecution is akin to the honest-government fraud and corruption theories he is said to be contemplating. That is, it flies in the face of the Supreme Court’s admonition that prosecutors are not at liberty to stretch vague criminal-law concepts in order to reach conduct that Congress has not clearly criminalized in a penal statute.
It is a black-letter principle that criminal statutes must be sufficiently clear that a person of average intelligence can grasp exactly what conduct is forbidden. If prosecutors can make it up as they go along by gradually expanding the scope of criminal laws, then people cannot know what the law prohibits. Consequently, the High Court has been pushing back against (a) innovations by which prosecutors strain to apply long-standing rubrics (e.g., fraud) to behavior that flouts progressive notions of good government; and (b) the premise that the potential outer limits of vague statutory terms (e.g., corruption) need not be knowable in order for a criminal statute to be validly applied to behavior the wrongness of which is more apparent.
As to the first, the Court is not saying that there is unsavory conduct that is beyond the reach of the criminal law. Rather, the justices are saying that, in our constitutional separation-of-powers framework, it is for Congress to criminalize conduct by enacting clear penal laws that address the precise behavior; it is not for prosecutors to outlaw conduct by applying existing statutes to conduct that those statutes were not commonly understood to address when enacted.
As for the second, there is a three-way judicial divide (which we explored some months ago in connection with a deeply divided D.C. Circuit panel decision on the obstruction statute Smith may try to use against Trump). Originalist judges are inclined to rule that vague statutes should be invalidated in their entirety — the idea is that their presence on the books, coupled with their failure to put people on fair notice of exactly what conduct is forbidden, discourages free people from engaging in lawful activity. By contrast, “pragmatist” judges, who eschew consistent adherence to any particular interpretive philosophy, favor “limiting constructions” — i.e., not invalidating the vague laws but, instead, limiting their application to conduct commonly known to be unlawful (e.g., “honest services fraud” has been limited to bribery and kickbacks). Finally, progressive judges tend not to object to vague statutory terms that potentially (a) give the government more power and (b) create a fear of prosecution that induces people to refrain from activities disapproved of by progressives.
Now, let’s turn to civil rights.
The vagueness issues that plague the federal civil-rights statutes are longstanding. We had occasion to look at them, for example, in connection with the Biden Justice Department’s civil-rights prosecution of the former Minneapolis police officers involved in the killing of George Floyd — in particular, the three ex-cops who were subordinates of the main culprit, Derek Chauvin (see, e.g., this column as well as this one).
There are two relevant civil-rights statutes, Sections 241 and 242 of the federal penal law. The Floyd case involved Section 242, which addresses deprivation of federal rights under color of law — i.e., actions by public officials. Section 241 is broader, addressing conspiracies to prevent people from exercising their federal rights, and under it the conspirators need not be public officials. Common to both, however, is a demanding state-of-mind element (mens rea): Prosecutors must show that a defendant acted not only intentionally but with a purpose to deprive the victim of a “constitutional requirement which has been made specific and definite,” as the Court put it in Screws v. United States (1945).
That is, there has to be a recognized, specific, and definite federal right at stake, and the defendant must act with knowledge of that right, intending to deprive its exercise. As I pointed out in the above-cited columns, progressives in the Justice Department — in my view, unconstitutionally — distort Section 242 in police cases by ostensibly claiming cops have violated a well-known civil right (e.g., the Fourth Amendment’s prohibition against unreasonable searches and seizures) when the prosecutors’ real allegation is that the cops have failed to live up to the Left’s notions of acceptable police practices. However desirable such practices may be, they are not constitutional rights (e.g., failing to take protective action on behalf of vulnerable people, or being insufficiently attentive to a detainee’s medical needs).
According to the above-linked reporting, Smith contemplates indicting Trump under Section 241, the conspiracy to deprive civil rights. To elaborate, Smith theorizes that Trump conspired with others to undermine the right to vote — specifically, the voting rights of citizens in the handful of states he was contesting in which Biden won the popular vote and Trump sought to undo that result by objections that Smith will allege Trump knew were fraudulent.
To my mind, this is exactly the kind of overreach the Supreme Court has admonished prosecutors to avoid.
Start with the language of the statute. Section 241 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 to him by the Constitution or laws of the United States.” Two problems thus suggest themselves immediately.
First, this is a post-Civil War statute that was enacted for the purpose of protecting black Americans from the terrorism and other forcible attacks carried out by the Ku Klux Klan and other racists in the South — violence that was aimed at (among other things) preventing blacks from voting. Trump clearly took egregious actions in trying (without the slightest prospect of success) to pressure state courts, legislatures, and election officials to reverse Biden’s victory. But that was all after the voting, and patently, the former president neither used force nor intended others to do so in order to prevent anyone from voting.
Second, there is no federal right to vote. The Constitution leaves the manner of choosing a president to the states and does not require them to hold popular elections. Of course, for well over a century, all states have held popular elections (technically, not for the president but for electors who cast the states’ votes in the Electoral College — and who, in modern times, are typically pledged to vote for the candidate who won the state’s popular vote). And it is a fair enough point that if a state chooses to conduct a popular election (as all do), equal-protection principles require that voters be given equal access to the ballot box.
All that said, though, there is no federal right to vote, the administration of elections — including the availability of voting, even for federal offices — is left primarily to the states, and Section 241 was plainly meant to prohibit forcible intimidation.
The situation Section 241 was meant to address, then, is clearly far afield from the circumstances of the 2020 election. So why would Smith think Section 241 is somehow relevant? Because the free-wheeling Supreme Court of the Watergate era, relying on some lower-court rulings, upheld the application of Section 241 in election-fraud cases involving not violent intimidation, but the stuffing of ballot-boxes with fraudulent votes.
This construction of the statute hinges on distorting the word injure. In Section 241, injure is in a list of other conspiratorial objectives that includes oppress, threaten, and intimidate. Plainly, it was understood to connote forcible injury. But in Anderson v. United States (1974), Justice Thurgood Marshall’s majority opinion maintained that it had “long been settled that § 241 embraces a conspiracy to stuff the ballot box at an election for federal officers,” which was said to “injure” qualified voters by “dilut[ing] the value” of their ballots. (This reasoning from a legendary progressive jurist seems rather remarkable now: Try taking Donald Trump out of the equation and imagine explaining to today’s Democrats that “undocumented aliens” must not be permitted to vote because that would be tantamount to the civil-rights offense of “injuring” the voting rights of American citizens!)
To my mind, the ballot-box-stuffing cases do not support a civil-rights charge based on Trump’s conduct. I find it hard to believe the current Supreme Court would endorse the Anderson Court’s non-textualist approach to Section 241. But let’s imagine that the justices were willing, in the interest of not disturbing precedent, to assume that a conspiracy to injure the enjoyment of the right to vote included such non-forcible conduct as pouring fraudulent ballots into the vote-count. Trump’s conduct did not affect anyone’s act of voting, much less prevent it. Instead, after the fact of voting, he pressured state officials to discount all of the votes on the pretext that there had been material fraud — a pretext that Smith will allege Trump knew was false, but that Trump will counter he believed was true (regardless of how many well-informed people told him otherwise).
That is not ballot-box stuffing, even if it could theoretically have cancelled out all of the votes.
The problem here is that Trump should have been impeached, convicted, and disqualified, not on the ill-conceived incitement-of-insurrection article the Democrats pushed through, but on all the 2020 election machinations — after a thorough investigation similar to what the January 6 committee covered, but with true bipartisan participation. Since Congress did not do its job, it has been left to the criminal-justice process.
Yet, Smith is having a hard time coming up with a crime that fits Trump’s misconduct. That is not a bug in the system, it’s a feature. It is a dangerous thing for a free republic to invite the Justice Department into the electoral process — if 2016 and 2020 have taught us anything, they should have taught us that. If Congress enacted laws specifically addressing deceptive practices in connection with campaigning and ratifying election results, it would have the effect of chilling constitutionally protected political speech and legitimate challenges to election procedures.
It is better to let the political system take care of those. The 2020 experience proves that: Notwithstanding the Democrats’ “our democracy was hanging by a thread” hyperbole, none of Trump’s schemes had the remotest chance of reversing the election result. The conduct was more than serious enough to warrant impeachment (a process for stripping an unfit person of the privilege of public office), but it was not serious enough to be a real threat.
Because there are very good reasons for Congress not to write the kinds of penal laws that Smith needs to justify a 2020 election-interference prosecution, he is in a bind both legally and policy-wise. Legally, the Supreme Court has made clear that prosecutors may not manufacture crimes that Congress hasn’t codified. And as a matter of policy, since we don’t want the Justice Department intruding on elections, there should never be a prosecution in the absence of a clear and serious crime supported by very strong evidence — a standard that Smith’s Mar-a-Lago case meets but an election-interference case almost certainly would not.
Jack Smith is a special counsel. Unlike ordinary prosecutors, he is authorized to write a report summarizing what his investigation has uncovered about former president Trump’s appalling conduct in the months following Election Day, including on January 6. That would be a service to the country. By contrast, a prosecution that strains to indict Trump on dubiously applicable statutes — even as the Biden Justice Department refuses to investigate Biden family corruption or to indict Hunter Biden on years-old, notorious, straightforward felonies — would only exacerbate the nation’s divisions.