The Three Reported Charges against Trump: 371, 1512, and (maybe) 242

I want to caution about the reports on the charges named in Trump’s target letter. Even after Jim Trusty got the summons for Trump’s Espionage Act indictment, reporting based on his representation of the charges turned out to be inaccurate — not least, because what was assumed to be one 18 USC 793 charge turned out to be 31.

All the more so here, where Trump’s team has even less information to work with.

That said, since comments on that other thread on the target letter have gotten so long, I’ll note that Rolling Stone says the target letter cites three charges.

The letter mentions three federal statutes: Conspiracy to commit offense or to defraud the United States; deprivation of rights under color of law; and tampering with a witness, victim, or an informant.

Once you’ve translated from the legalese, two of these are totally expected:

18 USC 371: Conspiracy to Defraud the US has generally been discussed in terms of the fake elector scheme — basically, an effort to get 16 electors in all the swing states to submit fraudulent certificates to NARA. That the scheme was fraudulent is easy to prove. What’s harder to prove is Trump’s personal involvement it, which will have required DOJ to breach several levels of privileged communication to prove (something they took steps to do on Lisa Monaco’s first day on the job). That said, we’ve seen that they’ve been doing that, most recently with proffers from both Boris Epshteyn and Rudy Giuliani, who implemented the scheme.

But this is a broad statute, and DOJ could also charge Trump with ConFraudUS for campaign finance crimes, among other known Trump acts.

18 USC 1512(c)(2): What is described as witness tampering here is almost certainly obstruction of an official proceeding, the same crime with which 300 other alleged January 6 criminals have been charged. The title for that crime is witness tampering. (Though Jack Smith could also charge Trump for attempting to tamper with Cassidy Hutchinson’s testimony.) I first started laying out how Trump might be charged for this in August 2021. More recently, I’ve recommended people read Royce Lamberth’s Findings of Fact in the Alan Hostetter case — a VIP, like Trump, who was prosecuted in part for inciting others to obstruct the vote certification — to see how judges are applying this law to January 6.

In summary, if my assumptions that this would be charged in conjunction with January 6 are correct, it would require the government to prove that:

  • Trump took steps to obstruct the certification of the votes. I would expect this to consist both of his pressure on Mike Pence, but also on his support for the mob, including for the threats the mob made on Congress.
  • Trump intended to obstruct the vote certification. This would require proving that he knew the significance of the event, which DOJ will prove with the weeks of plotting he put in before the event.
  • Trump had corrupt purpose in doing so. The standard for corrupt purpose as regards this statute is still being decided by the DC Circuit, but it will end up being some combination of “otherwise illegal activity” and “corrupt benefit.” The former might be proven by showing that Trump knowingly gave an illegal order to Mike Pence. The latter would easily be proven by showing that Trump wanted to retain an office he didn’t win.

Note that DOJ has been charging conspiracy tied to this statute under 18 USC 1512(k) and I would be unsurprised to see that happen with Trump.

The last of these statutes is more of a surprise.

[See correction below] 18 USC 242: It prohibits someone from impeding someone’s rights “under color of law,” which can mean “beyond the scope of one’s official duties.” Charging Trump with 242 may be a way to charge him for attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely. Charging him under 242 would eliminate any dodge Trump might make — for example on the call to Brad Raffensberger — that he was simply acting within his official role as President.

This charge may be why, since last year and increasingly in recent weeks, Jack Smith has focused on the harassment of election officials. Just today, AJC reported that Smith subpoenaed footage from the State Farm arena counting center, suggesting Ruby Freeman might be treated as a victim here as well, which would be well, well deserved.

Two other potential implications of this. When January 6 defendants have argued that Trump authorized them to attack the Capitol, DOJ has always responded that the President has no role in the vote certification. So if DOJ were to include January 6 in such a charge, it would be an area — one of the most clear cut areas in the Constitution — where the President literally has no authority, and so easy to show that Trump was exceeding his authority.

Additionally, as noted above, the standard for corrupt purpose on obstruction is not yet settled. The DC Circuit might yet require “corrupt purpose” to be shown via some “otherwise illegal activity.” If that happens, DOJ may want to have several other crimes charged that will prove that prong of the offense, of which 242 could be one.

In other words, the thinking may be, in part, that it’s clear the President has no authority in the Electoral vote certification. Trump tried to deprive Biden voters of their franchise with his efforts on January 6. And that is one of a number of other crimes he committed in his efforts to obstruct the vote certification.

All that said, note my caution about the giant game of telephone this discussion relies on. Ultimately, we’ll learn what the charges are soon enough.

Update: Both the NYT and Guardian have reported that the third charge is 18 USC 241, not 242. Jack Smith is going to accuse Donald Trump of voting fraud.

109 replies
    • thisoldhaus says:

      That caught my eye last night, too. Obviously it won’t come to that, but a thought to conjure with.

    • Thomas C. says:

      Respectfully, re-read the penalty section as it would hypothetically apply to the crime(s) being discussed:

      “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;”

      I think we all can appreciate the idea of strong punishment, but it says quite the opposite of what you suggested. See: “fined under this title or imprisoned not more than one year.”

      The life imprisonment, and/or sentenced to death only applies to bodily harm, injury, and or death.

      “…and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”

      • M..Smith says:

        On Jan 6. many Police Officers etc. had their rights deprived by “bodily harm, injury, and or death.”

        • Overshire says:

          Seems to a layman that Ashli Babbitt’s death might be enough to invoke the maximum sentence. That’s one death that can certainly be traced directly to the conspiracy.

        • Marc in Denver says:

          There was at least one other rioter who died (i.e., got trampled on the Capitol steps) in that group of deaths arguably resulting from acts in violation of section 242. Although it feels kind of like charging felony murder when the bank robber’s co-robber gets killed in a shootout.

        • Purple Martin says:

          For accuracy, although Roseanne Boyland was carrying a Gadson Flag (“Don’t Tread on me”), she was not trampled to death. Per The Washington Post April 7, 2021 article titled D.C. medical examiner releases cause of death for four people who died during Capitol riot:

          Two civilians who died during the violent Jan. 6 insurrection at the U.S. Capitol died of natural causes, and a third succumbed to amphetamine intoxication, according to the D.C. medical examiner’s office.

          That statement said autopsies concluded that Kevin Greeson, 55, of Athens, Ala., and Benjamin Philips, 50, of Ringtown, Pa., died of natural causes due to cardiovascular disease. The medical examiner ruled that Rosanne Boyland, 34, of Kennesaw, Ga., died of accidental acute amphetamine intoxication.

          … The drug cited in Boyland’s death is addictive and can be prescribed to treat attention-deficit disorder and narcolepsy.

        • Marc in Denver says:

          Thanks for the clarification. My memory was foggy, and I hadn’t managed to keep using with any updates (like ME reports).

        • BrokenPromises says:

          That dead co criminal charge does result in murder charges for the co conspirator in the robbery in countless jurisdictions across this country. These of course are brought by local District Attorneys and sometimes under state statutes.
          My thought on J6 is that the assault on the Capitol is part of the commission of the crime to prevent Joseph A Biden the right to ascend to the presidency entitled due to being the elected. The result of that assault being multiple deaths with at least two right there at the Capitol during the commission could apply. Personally I think it should. After all prosecuting crimes is meant at one level as deterrence to the crime being committed in the future. In our current political state it seems appropriate to indicate just how wrong such behavior is since it’s success would negate the constitution voiding the rule of law. From there it’s a small jump to tanks in the street to take down a president, rule by force and/or retain or gain power via violence.

      • bcgister says:

        “…if such acts include kidnapping or an attempt to kidnap,…”
        I’m wondering if this part reflects on the insurrectionists’ plans for members of Congress and whether Donald would liable for that.

      • paulka123 says:

        So, with possible life in prison or the death penalty, at what point is Trump denied bail?

        • earlofhuntingdon says:

          LOL, too. And wtf did you come up with either sentence?

          A defendant needs to be a danger to himself or others, or an imminent flight risk. The length of any sentence is only indirectly relevant, by way of its effect on the required criteria to hold Trump in custody.

  1. Clare Kelly says:

    Thank you.

    This has been a 10 on my egregious scale.

    Marcy wrote:

    “ Charging Trump with 242 may be a way to charge him for attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely. Charging him under 242 would eliminate any dodge Trump might make — for example on the call to Brad Raffensberger — that he was simply acting within his official role as President.”

    • James Hudson says:

      As a longtime election worker and a Biden voter If this is correct that alone will make me extremely happy. I realized long ago the thing that made me angriest about this entire Jan 6 episode was that this person directly attempted to take away my rights and the rights of almost everyone I know. I have never been the victim of a crime before, but this is what it was to me and it seems to be an ongoing victimization on his part.

    • howerdgadswrothe says:

      There has been so much to focus on with all the different criminal investigations, that I’d not even thought about how what was done by the J6 mob + TFG & cronies at it’s core was a complete disenfranchisement of the right to vote for 81 million individual Biden voters.

      I didn’t foresee any charges relating to “me” directly coming (so to speak).

      Get em’ Jack! Thank you Marcy!

  2. Unabogie says:

    Who would the witness tampering be referring to? I’ve seen speculation that it’s Cassidy Hutchinson, but it could also be one of the coup-plotters who was contacted by Trump and told to keep quiet? What’s your guess, Marcy?

    • Scott_in_MI says:

      “What is described as witness tampering here is almost certainly obstruction of an official proceeding, the same crime with which 300 other alleged January 6 criminals have been charged. The title for that crime is witness tampering.”

      • Unabogie says:

        Ugh, totally spaced on that, thanks. In my defense, we have Covid right now and “brain no work” is real.

        • BirdGardener says:

          I hope you get better soon! Please get lots of rest. From my family’s experience, trying to keep on working is more likely to put one at risk for long-Covid than resting until you’re actually better.

        • David F. Snyder says:

          I had it back in April and it took me about 6 weeks to get near normal. I still have short bouts of brain fog (but that may be normal for me? :-D). Get well soon!

        • Kevin Bullough says:

          My wife and I got off a week-long Alaskan cruise here in Vancouver on June 10th. She tested positive six hours later and was sick for a week, ironically feeling better the day I tested positive. I was off work for three weeks, and two more after that to feel normal.
          As for brain fog… it must be noted that I do live in the home of BC Bud, so that’s harder to pin down.

        • Mike from NY says:

          The one thing I can tell you that might help: keep eating. You may not be hungry, but you can get yourself into big trouble if you don’t eat.

  3. Kevin_16AUG2022_0601h says:

    Do you think 242 can be used to fold in the violence from the actual insurrectionists?

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    • PieIsDamnGood says:

      I think that would come in through conspiracy to obstruct an official proceeding. The violence on Jan 6th would be an overt act of the conspiracy.

    • emptywheel says:

      Possibly, yeah. I’ve argued that DOJ had laid the groundwork to hold Trump and Rudy accountable for the near-murder of Michael Fanone. So via an aid and abet logic, yeah.

  4. Tien Le says:

    This is by far the best analysis of what might be in that letter. I’m pretty stoked about the possibility of the 242 charge since it feels like direct consequences to TFG for attempting to deprive me of my agency as one of the 81 million voters for Biden. I’ve had quite enough of being deprived of my vote for President in 2020 by the faithless elector who represented my district in WA.

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  5. vinniegambone says:

    As referenced repeatedly by pundits, Trump’s alleged crimes were often committed in “plain sight”.

    I assume DOJ would have extreme trepidation about using wiretaps or undercover agents against him. Just the same, one might think at many points along the way there was sufficient evidence of probable cause to submit a sealed affadavit to obtain a warrant to employ such tactics against people plotting to defraud the government, and or, to continue hiding stolen documents.

    President or not, once he gave Kislak and Lavorov classified information, one would hope DOJ would train every legal resource they could against Trump and his people just like they would against any other gangster (s).

    Exploiting phones is not going to divulge the kinds of evidence as obtaining transcripts of actual calls.

    At least Rothenberger was astute enough to record Trump’s entreatys.

    Seems like we relied heavily on text and emails for J6 convictions, but no wiretaps.
    Do they not use them anymore ? Over the line to wiretap sitting president, but after he’s replaced seems fair if there is probable cause.

    These questions are rhetorical, obviously.
    Equally obvious, IANL.
    Glaringly obvious is Trump and his comrades (Stone) are enemies of democracy.

    • Tech Support says:

      I suspect there are people far better versed than I to dispute both the value and the legal grounds for wiretapping TFG as part if the J6 investigation (or the docs investigation for that matter).

      But on a purely functional level, your cell phone is a 24x7x365 high quality multi-channel surveillance device that you willingly take with you almost everywhere you go. Every other computing device you use that connects to the same cloud services your phone does is an extension of that web of surveillance. There’s a LOT of juice to squeeze from that fruit.

      • JohnJJSchmidt says:

        When I am asked if I think someone is somehow “chipping” people to track them, I always laugh and point to their phone and ask why someone would bother since you are doing it to yourself willingly.

    • Fraud Guy says:

      The problem is, sharing classified information is a decision the President can make, so his sharing with Lavorov and Kislak was within his powers as President. However, there were many stories and leaks afterwards about how various agencies would provide the bare necessary information after that meeting in order to protect sources and methods from further dissemination to an active rival.

      • P J Evans says:

        The problem is his choices of what to share and with whom. And taking away the translator’s notes was a sign of intent.

  6. drhester says:

    Thank you so much for the clarity. For non-lawyers like me, it’s very succinct and enlightening.

  7. Savage Librarian says:

    I also am surprised about the mention of 18 USC 242 as a potential possibility in an indictment. The thought of that actually made me feel quite emotional.

    When I think of my own challenging experiences from many years ago, I sometimes ask myself, ‘How would things have been different if all that happened today, instead of then?’

    And now, I feel hopeful that if 242 is used successfully, it can help deter some future egregious behavior of public officials who have a penchant for overstepping their authority. But even if it does not deter some of that behavior, it could still be employed to reinforce the rule of law.

    So, I will be very grateful if DOJ actually is considering this.

  8. Buzzkill Stickinthemud says:

    Trump took steps to obstruct the certification of the votes. I would expect this to consist both of his pressure on Mike Pence, but also on his support for the mob, including for the threats the mob made on Congress.

    Also, his “support for the mob” could include his hours-long inaction once the Capitol had been stormed.

      • AngieM says:

        To quote a song: If you choose not to decide, you still have made a choice.

        The President has a duty to respond to a danger to the nation.

        An armed physical assault on the US Capitol building by hundreds or thousands of people while the Congress is in session to fulfill their Constitutional duty of “[12th Amendment]–The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed” certainly seems to be a sufficient example of something a sitting president would be expected to do something about – besides sitting in front of a television (as has been reported by multiple sources, noted in the US House hearings on the matter) and just watching it happen.
        Especially after the news that he was contacted by various members of Congress to get on television and tell the Mob to leave the Capitol building and grounds – for the safety of the members of Congress and the staff (security and maintenance personnel).

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      • Rugger_9 says:

        I would expect the real lawyers to chime in when I get this wrong, but as I understand the situation, mere incompetence (which includes ‘judgment calls’) isn’t charge-worthy but criminal actions (especially outside of the job duties) would be.

        Defendant-1’s defense here is that he was ‘monitoring’ the situation and in his ‘judgment’ there was nothing to see there. I would opine that unless and until there is a smoking gun communication ordering a stand-down or a prohibition during the riot, he’s got a way out on this particular rap.

        • BrokenPromises says:

          That ‘judgement’ is no better than a lifeguard saying “Well I could see him bobbing up above the surface of the water his arms flailing about and even taking a few swim strokes toward the beach before going under again. I was monitoring it and since he was no more than a hundred feet out and would be at shallow water in fifty or sixty feet I saw no reason to go to his rescue. I’m so sad he drowned.”

          And if I were a prosecuting attorney that story would make it into my closing argument against the FG.

        • xyxyxyxy says:

          From left field, so how about inaction on covid that killed over a million in the US?
          From interview with Woodward, he knew there was a crisis and did almost, if not, zero.

        • CovariantTensor says:

          Yeah, pretty far left. The only remedy for his handling of covid would have been impeachment. And good luck with that, if we can’t even get a senate conviction for inciting a riot as part of a plot to stay in power, or for using US foreign policy and congressionally allocated funds to advance his own personal reelection campaign. Trying to prosecute Citizen Trump criminally for his *policies* as POTUS is banana republic territory.

  9. says:

    It seems like poetic justice if Trump were to be charged with 242 — the criminal sister to 42 USC 1983 that President Grant insisted be written by Congress to have an enforcement tool for his brand new “Department of Justice” to help quell violence being inflicted on the newly freedmen in the South. The perpetrators of violence were often those in positions of authority, who, acting CORRUPTLY — under color of law and cloak of the badge and uniform — asserted UNawful power, that their office did NOT bestow on them.

    If Lindsey Graham got pissed off that Trump was being charged under the Espionage Act, what’s he going to say if Trump’s charged with violating the Klu Klux Klan Act?

    I guess we could just say Trump’s being charged for his carrying out the Cluck’s Coup Plan Pact.

  10. howerdgadswrothe says:

    while evidence looms
    his orange spray-tans flakes off
    we hope for jail time

    [Moderator’s note: The IP address from which you’ve published this comment is in the same range as another commenter. Sockpuppeting isn’t permitted here. /~Rayne]

    • howerdgadswrothe says:

      Sorry for any confusion… I’m not sure of what account that is, but this is my first time posting! Rayne, How can I rectify this issue? Thank you!!

        • Howerd Gadswrothe says:

          Thank you! Sent from my cellular. Hope I did this right.

          [Thanks — you can resume posting from your desk. I will try to narrow down a fix regarding the problematic username in the same range. /~Rayne]

        • howerdgadswrothe says:

          Is it incorrect if I try to post comments from my work computer as well as my cellular? Not sure what I may have done wrong but hoping to chime in from time to time behind my desk. Thank you Rayne!

        • Rayne says:

          Your IP address shows a static IP (like at a desk or a fixed location like a coffee shop or library) through a Florida ISP. The other username has used an address in the same range. Using your cellphone will show as a dynamic address, possibly from another ISP. Try that once and we’ll see what happens.

          I run into this problem with a particular ISP in the Los Angeles CA area once in a while. The additional challenge with your Florida ISP IP address is that the other username/identity has changed usernames numerous times.

        • howerdgadswrothe says:

          Understood. I’m commenting again, testing this time from my at-work computer, which isn’t my own personal property, and we’re using FL ISP Consumer Cellular on this work device, perhaps that is where the conflict is? I’m almost 1000% certain I’m the only employee here who reads Emptywheel, let alone is commenting. If I am connected to work-provided wifi using my iPhone, will I get the same issue? Sorry for continuing the off topic subthread, and thank you for your replies!

        • Rayne says:

          It’s likely the FL ISP Consumer Cellular on your work device. Sorry you’re the lone emptywheeler at work. No worries, just stick to your username and email address each time you comment and you should be fine going forward.

        • howerdgadswrothe says:

          Sorry Rayne, one last comment…. if there is somewhere more appropriate to discuss tech support, please let me know!

  11. vigetnovus says:

    I think, Marcy, you aren’t thinking broadly enough.

    The Secret Service testified.

    The one person who *does* have a Constitutional duty on January 6th is the VP.

    There is speculation that Pence refused to go with the USSS detail that day, because he was fearful of what might have happened to him. At the very least, taking him to an undisclosed location against his will to prevent him from presiding over the joint session would certainly have obstructed the official proceeding, and could be construed as kidnapping, especially if Trump ordered the USSS to do so, under color of his authority.

    Now go back and look at 18 USC 242….

  12. Fiendish Thingy says:

    Sorry to go off topic, but multiple sources are reporting that Judge Cannon has denied DOJ’s motion for a protective order governing the use of classified documents.

    I eagerly await EW’s analysis of this ruling…

    • Scott_in_MI says:

      From what I heard yesterday on Lawfare Live, Cannon dismissed the motion without prejudice (meaning that DOJ can resubmit) because she didn’t feel that DOJ’s attempts at conversation with the Trump team on the topic prior to filing met the Florida standard for “meaningful conferral.” (That topic is covered from 13:30-15:15 and from 20:00-23:40 at https:// www. lawfaremedia. org /article/the-lawfare-podcast-a-big-day-in-trump-accountability)

      • Ewan Woodsend says:

        Thanks! I keep hitting refresh on EW to see if a new post will come on that trial (it fascinates me for some reason). While I’ll patiently wait until Judge Cannon issues a written ruling to read Marcy’s explanations of what is going on, your post gave me some news to chew.

      • Rugger_9 says:

        Can the defense team torpedo ‘meaningful conferral’ by the cheesy delaying tactics we’ve seen already? How long can that continue?

        • Scott_in_MI says:

          I wondered that as well. Here’s some more context on that piece from Anna Bower’s write-up of the hearing:

          Judge Cannon observes that she hasn’t yet seen any objections from defense counsel with respect to the proposed terms of the protective order filed on Monday by the special counsel’s office. Did the government make meaningful efforts to confer with defense counsel, as required under the local rules?

          Bratt explains that prosecutors provided defense attorneys with the proposed order last week. They made efforts to discuss the proposal with defense counsel on Friday but were told that defense counsel would be unavailable until the following week, he says.

          Judge Cannon, apparently unsatisfied by this answer, snaps at Bratt in response: “Alright, so you tried conferring on a Friday before filing on a Monday on something that’s quite important,” she says.

          (Source: https:// www. lawfaremedia. org/article/judge-cannon-holds-a-hearing)

          That doesn’t seem (to me, anyway) like an unreasonable response from Cannon under these circumstances; whether the Trump team tries to push her limits on this point, and to what degree she permits it, remains to be seen.

        • RitaRita says:

          If Trump didn’t have a track record of delaying tactics, I would agree that her response wouldn’t be unreasonable.

        • earlofhuntingdon says:

          That’s normally an argument defense counsel should make, not the court.

          Cannon spent a lot of time on her first Trump case making arguments for Trump his defense counsel didn’t or weren’t competent to make. Let’s hope she’s not going there again. A purported billionaire, even a guy with a few hundred million, can hire all the fucking defense lawyers he wants.

  13. WhiteTiger says:

    I think it is helpful to see the whole statue as the DOJ posts it:

    TITLE 18, U.S.C., SECTION 242

    Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;

    ***attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely.

    and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;

    ***114 Capitol police officers injured; Michael Fanone, the DC Metropolitan Police officer who almost died defending the U.S. Capitol on Jan. 6, 2021, suffered burns, a heart attack and traumatic brain injuries after insurrectionists assaulted him that day. He got an electrical shock on his neck, and was beaten with a flagpole.

    and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

    ***at least 7 people died as a result of Jan. 6th — Of course the legal status of those deaths remains murky as but it defies logic to assume that Siznick would have died less than 24 hours later of multiple strokes had he not been physically attacked and the other officers who committed suicide within days sustained injuries. Jeffrey Smith was hit on the head with a metal pole and immediately ‘slipped into a deep depression’ according to his wife. In any event, a concussion can damage the brain in many different ways. Officer Howard “Liebengood had to work lengthy shifts for the next three days after the Jan. 6 riot, his wife said in her letter [asking for death benefits] , and became “severely sleep-deprived.” After the third shift, she said, he returned home and killed himself.”

    I would appreciate help in parsing the legal implications of the above. How can 81 MILLION deprived violations result in 1 year of prison? Ten years for the over a hundred injured makes some sense but Fanone’s injuries forced him to leave his job. And how can the deaths of at least 7 people be ignored and passed off as incidental? How can a co-defendant in a robbery who was unaware of the robbery and a subsequent death caused by another co-defendant be convicted of murder? I have read many reports of instances described in this previous sentence.

    I am a literary scholar. Consequences are at the heart of interpreting narrative. I simply do not understand how the law does not address logical consequences. Some consequences are tenuous but those listed above seem like it is easy to see a direct line. Siznick’s death seems absolutely obvious.

    That being said, if Trump goes to prison for even a relatively short while, that would be a tremendous victory although too short a sentence might catapult him back into the presidency if he manages to live long enough.

    I fear that avoiding a fascist takeover of the Republic will require an unambiguous conviction leading to a substantial sentence. Even then, all the wanna be fascists will try to follow in Trump’s footsteps.

    note: I really don’t understand how to format inside this blog. Sorry. Some hints would be appreciated.

    • Scott_in_MI says:

      “How can 81 MILLION deprived violations result in 1 year of prison?”

      (Disclaimer: IANAL.)

      It seems clear to me that the statute as written contemplates violations of *an individual’s* rights. The explanatory text from that Civil Rights Division page seems to support that: “Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials.” These examples suggest offenses by public officials against specific individuals with whom they are immediately presented – persons being questioned or detained by law enforcement, prisoners, defendants at trial, patients.

      The bigger issue here is that US law as we have it does not really contemplate the specific situation of “outgoing president incites a riot to obstruct the certification of the election of his successor,” and so prosecutors have to try to fit that conduct to existing elements of the criminal code.

      • WhiteTiger says:

        Yes, I see that we do not have laws contemplating this circumstance. Has the whole transfer of power simply been a gentleman’s agreement since Washington? The founders were worried about someone installing himself as king. It kind of boggles the mind to think there is no applicable law.

        • Fraud Guy says:

          You make it sound like the founders were of the mold of the Five Families in The Godfather:
          James Madison: “I hoped that we would come here and reason together. And as a reasonable man, I’m willing to do whatever’s necessary to find a peaceful solution to these problems.”
          Alexander Hamilton: “Look, we are all reasonable men here. We don’t have to give assurances as if we were lawyers.”

        • Marinela says:

          It is worst than that.

          Back in April 2017, I was talking with a Trump voter. We were arguing about Trump lies and undemocratic ideas he was putting out as trial balloons. In that period, Trump was floating ideas about being elected for more than two terms. So I asked the Trump voter if he was ok with that idea. To my surprise, he was actually embracing the idea, he was like “I cannot fault Trump thinking like that, he’s got my vote if he wants to do it”. Then I said, what about if Hillary was the president, and she would lobby to be elected for life?
          His response, that would be illegal, he didn’t want Hillary to do anything illegal. This was April 2017.
          So by now, after the frog boiling concept, anything Trump says is going to be ok for Trump base.

          So we are in big trouble. There are way too many magats that are supporting Trump now after all of these indictments.

        • earlofhuntingdon says:

          Trump and the GOP are attempting to institutionalize personal autocracy and a coup and make them a permanent part of the political landscape. That’s what’s at stake now and for the 2024 election.

        • WhiteTiger says:

          Of course, and if the Rs get back in power in 2024, I don’t see how our democracy survives.

          It is becoming more and more clear that our Constitution and laws do not provide a legal bulwark against autocracy, even after a failed coup attempt.

          As I read the various statutes Trump faces or potentially faces, they seem far from sufficient.
          Maybe it is impossible to write such protection into law.

          If a culture is ripe for autocracy, it just rolls on into it? Pinochet used the military. At least, we have clear laws about the use of the military.

          Or do we? Because some of the things I have read about Posse Comitatus recently were concerning when read in the light of what Trump might do.

        • Matt___B says:

          While Pinochet certainly had the Chilean military to draw upon, don’t forget he had massive mostly covert support from the CIA and Nixon’s national security apparatus (Kissinger etc.)

        • earlofhuntingdon says:

          The law sets the floor and upper limit for behavior. People collectively set the standards for what’s inside those limits.

        • CoffaeBreak says:

          That is quite a low and high water mark. A fine and up to one year – all the way to life and possible death penalty. I would imagine that Jan 6th would fall in the upper levels of this particular standard logically speaking.

        • bmaz says:

          Welp, you are never going to get that. I remember when liberals were against outrageous over sentencing. But, hey, Trump I guess.

        • earlofhuntingdon says:

          No, thanks. The US already has the most outsized prison sentences among industrialized countries.

          A bigger problem is that regardless of sentence, Trump’s conduct has the backing of one of two principal political parties and tens of millions of people. His illegal behavior becomes theirs. That’s a cause of upheaval no sentence will fix.

        • paulka123 says:

          The cure begins with holding Trump accountable, once shown to be human, many of his cult will no longer see him as the god emporer.

        • bmaz says:

          No “the cure” is letting the legal process play out. NOT demanding any particular result therefrom.

        • CovariantTensor says:

          Personally I’d be OK with zero years in prison and conviction of a crime that legally precludes him from holding high office, such as attempting to overthrow the government. We all know that’s exactly what he did, but I appreciate it’s a tough nut to crack legally.

    • vigetnovus says:

      The one problem I have with looking at 18 USC 242 and applying the physical force, bodily harm or death enhancements of the penalty is that Trump, HIMSELF, did not commit these violent acts. And supposedly the letter mentioned 18 USC 242, not 241, which is the conspiracy statute for civil rights violations, which of course Trump would be liable under conspiracy law if there was a tacit agreement with others to use physical force to deprive citizens of their franchise.

      But no one who was convicted of any of these violent actions was charged with conspiracy to deprive civil rights or even the simple deprivation of civil rights charges. So, I’m not sure how there can be a conspiracy here, with regards to civil rights violations at least.

      I cannot believe that Smith would go through all the trouble it would take to prove a civil rights violation charge IF the maximum punishment were only 1 year and a misdemeanor on your record. Certainly the obstruction of justice charge is very serious, but I can hear Trump now whining about process crimes and a misdemeanor charge. I think he’s using 242 specifically because of the serious felony enhancements, and that brings me back to kidnapping Pence. Trump DEFINITELY was the one pushing the Pence angle. If he truly had ordered the USSS to detain Pence against his will, to me that’s almost a slam dunk for the 242 charge. And that opens up the sentencing to basically ANY amount of time the judge wishes to proscribe.

      • BirdGardener says:

        Yes, I usually have to google for the html code I need. In this case, I suspect s/he/they wanted;

        [.blockquote.> Contents… <./blockquote.]

        …but without the periods I inserted because I don’t know what terms to google for showing the code without applying it. (And I hope what I did comes through correctly, hah.)

        Argh, not working. I tried the wrong brackets, but what good will that do anyone?! Use the < signs, folks.

    • Rayne says:

      I don’t want to get into the habit of providing basic HTML lessons here but this once I will provide a brief cheat sheet. HTML is very limited in comments for security reasons. These are the tags most commenters will want to know; replace [ ] brackets with right and left carets:

      italics/emphasis: [em] text [/em]

      boldface/strong: [strong] text [/strong]

      offset paragraph excerpt/indented quotes: [blockquote] paragraph [/blockquote]

      embedded active links: [a href=”https:// url . here”] text [/a]

      Active links are likely to trigger auto-moderation to prevent phishing attacks. Be patient and allow time for moderators to respond. You can proof your HTML at


      • BirdGardener says:

        Thank you, Rayne! I bookmarked the linked site; that’s vastly better than anything I stumbled across.

  14. Thomas Paine says:

    Well done, Marcy. After reading Section 242, I had the same thoughts about its application to Trump’s bad behavior that you have stated here. Past Presidents have been deferential to the Electoral College and the Congress in the matter of certifying the vote of We the People. Trump’s unlawful interference in the 2020 election certification seemed so wrong from so many angles. This statute seems to me to be a good fit to describing the essence of this crime.

    He attempted to deprive We the People of our right to self-governance. His trial will become a great lesson on the sanctity of the right to vote.

  15. howerdgadswrothe says:

    I am so grateful for this blog and all who participate here. After lurking for a long few years on the sidelines, I just want to say thank you!!!

    My perspective on the many swirling and connected stories is kept diverse and well educated thanks to your efforts.

    Keep up the good work!

  16. P’villain says:

    While there is undeniably poetic justice in the concept of holding Trump criminally liable for attempting to disenfranchise eighty-one million voters, so far Jack Smith has not shown himself to be inclined toward grand gestures (which is a good thing).

    Dr. Wheeler’s mention of this theory in her post has launched a veritable 99 Luftballons of grandiose speculation in the comments. I propose we all sit back instead, and wait for the indictment to cross our desks. If it’s anywhere as good as the last, it will be gripping and illuminating reading.

    • Fran of the North says:

      Nena FTW! From the somewhat sanitized English lyrics:

      “99 Luft Balloons, Floating in the summer sky; Panic bells, it’s red alert.”

      I’d bet their might be some psychosis bordering on panic in Bedminster lately.

  17. CaptainCondorcet says:

    First time commenting after five-ish years lurking (bmaz-phobia). For those interested in a reasonably accessible interpretation of 242 that isn’t driven by current events, the Congressional Research Service produced a memo concerning the “color of law” statute in response to the proposed Justice in Policing Act that would necessarily have had to change that law (for reference, 242 is how the Feds hit Chauvin and Company after the murder of George Floyd).

    Link here hopefully (my apologies if I’ve done it wrong):

    My takeaways, though like many here IANAL:

    1) it is not sufficiently tested whether the acts of others may be applied for determining which sentencing clause of 242 applies. The indictment of Thao and Kueng for violation of 242 alleged that the willful failure to act in the face of Floyd’s medical need “resulted in the bodily injury to and death of George Floyd”, a clear indication that the DOJ perceived they could seek life sentence for these offenses despite neither officer ever touching Floyd. But both officers pleaded guilty, so we were unable to observe legal challenges to this assertion.
    2) the willfulness standard has remained contested across cases, because of the complexity of interpreting constitutional rights. But I would be shocked to see that matter in this case, because as Marcy notes, the Constitution is pretty clear in how the process plays out. The numerous comments about and towards Pence (“do the right thing”) make it clear that well in advance of January 6th, Trump was aware this wasn’t within his scope of duties but pressed forwards anyways under guise that it was his duty.

  18. Badger Robert says:

    Attorney Smith and his team want to align the known facts with the elements of the statutes.
    I think they will need identifiable victims. Some may be the MAGA convicts. Ms. Hutchinson might be a compelling victim. Some victims might be politicians, or capital law enforcement officers. And some victims may be the subject of testimony of their widows or surviving children. Its one thing to nail down the elements. Then the next step is to have experts explain how the facts show crimes and not just politics as usual. But its going to be necessary to make Trump appear like a gangster whose orders and requests kill people.
    Its a tall order to get members of the conspiracy to testify against the boss, but to me it seems necessary.

  19. StillHopeful says:

    We Emptywheel followers, might think we are reaching the promised land of justice for the crimes of Donald John Trump.

    In this case, potentially being indicted for 3 charged crimes.

    But the legal system, thankfully, is not black and white; there are many areas where previous judgements affect how the law is interpreted.

    We have a resident lawyer, bmaz, who, I like to think, mainly looks at cases from the viewpoint of the defense.

    I am wondering if our resident lawyer could give us some of the pluses and minuses of the charges against TFG, so that we can set our expectations to a reasonable level. I think we hope that justice will prevail, but, based upon available information, what is justice?

    • bmaz says:

      No, not yet. Anybody who reads here often knows I prefer things simple and straightforward, not serially strung out. So we shall see how it plays out.

      • StillHopeful says:

        Thank you,

        I have my wishes, but if anything TFG remembers, it’s Roy Cohn; how to manipulate a system (for their benefit) that is designed to provide justice to us all.

Comments are closed.