At the heart of the Justice Department’s twin cases against former President Trump lay two obscure statutes so rarely used that one had only been invoked by federal prosecutors roughly a dozen times in the last 20 years.
A target letter sent to Mr. Trump this week from federal prosecutors investigating the Jan. 6, 2021, attack at the U.S. Capitol suggested that the former president could be charged with violating a federal law enacted to crack down on post-Civil War voting intimidation.
It is not the first time special counsel Jack Smith has invoked an arcane law in a Trump case. In a separate case alleging the ex-president illegally mishandled classified documents, Mr. Smith accused Mr. Trump of violating the Espionage Act, a law from World War I that was aimed at spies.
University of California, Berkeley law professor John Yoo said these arcane laws are being used in Trump cases because a former president has never before been prosecuted in the U.S.
“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. “The 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.
The letter from special counsel Jack Smith referred to three criminal statutes, including conspiracy to defraud the government and obstruction of an official proceeding.
It was the third criminal law cited in the letter that caught legal analysts by surprise. The charge was under a statute that makes it illegal to deprive citizens of the “free exercise” of constitutional rights, like voting.
The statute, Title 18, Section 241 of the U.S. Criminal Code, was drafted during Reconstruction to crack down on Southern Whites, including Ku Klux Klan members, from stopping formerly enslaved Black people from voting. It carries up to 10 years in prison.
Just because Section 241 was referenced in the target letter does not necessarily mean Mr. Trump will be charged with violating the law or even that he could face criminal charges.
Still, legal scholars said they were surprised to see Section 241 referenced in the target letter.
Mr. Yoo said he believes it is the first time the case was 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 for a person 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 potential sedition or insurrection charge raised eyebrows. Mr. Trump was widely expected to face either of those charges in the Jan. 6 case, the target letter does not list either as a possible charge.
It’s unclear how Mr. Smith intends to argue that Mr. Trump violated the statute. One theory would be by citing 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 votes on a voting machine violated Section 241 because it distorted fairly counted votes.
Mr. Smith could argue the law applies to Mr. Trump’s pressing the Georgia secretary of state to find enough additional votes to overcome President Biden’s win there. 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 election win.
Josh Blackman, a constitutional law professor at South Texas College of Law, said both applications 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 blocked votes from being counted, Mr. Blackman said. At the time of the phone call to Georgia’s Secretary of State or the fake elector scheme, votes had been fairly counted.
“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.
The use of a fairly obscure statute seems to be part of Mr. Smith’s playbook in the Trump investigations. He also surprised legal watchers by charging Mr. Trump under the Espionage Act in the classified documents case.
In the past 20 years, only a little more than a dozen people, including Mr. Trump, have been charged with the willful retention of classified documents. Most of the charges were brought against little-known defendants in cases that rarely made headlines.
Historically, 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.
The use of obscure laws to target Mr. Trump and his associates is not a recent phenomenon. Special counsel Robert Mueller wielded the little-used Foreign Agents Registration Act to charge some of Mr. Trump’s associates, including former campaign chairman Paul Manafort, his deputy Rick Gates, and Mr. Trump’s first national security adviser, retired Army Lt. Gen. Michael Flynn.
The Foreign Agents Registration Act had sat dormant until Mr. Mueller revived it. Between 1966 and 2015, the Justice Department had only initiated seven cases, two of which ended with the charges dismissed.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.