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Saturday, December 9, 2023
Courthouse News Service
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Donald Trump faces KKK-era law, tough judge after third criminal indictment

The former president will appear Thursday at a Washington federal courthouse just two blocks from the U.S. Capitol, where thousands of his supporters tried to subvert the 2020 election.

WASHINGTON (CN) — The newest set of criminal charges brought Tuesday against Donald Trump for his efforts to overturn the 2020 election and encourage thousands of his supporters to descend on the Capitol on January 6, 2021, accuse the former president of conspiring to undermine democracy and will likely become an era-defining moment in American history.

The charges are the result of a monthslong investigation led by special counsel Jack Smith — who was appointed by Attorney General Merrick Garland but operates independent of the Justice Department — and are the second set of federal charges levied against Trump, after he was charged in June for mishandling classified documents after leaving the White House.

Trump faces a third set of charges in the state criminal case in Manhattan that made him the first sitting or former United States president to be criminal charged, and has another looming indictment in Fulton County, Georgia. 

Even next to the former commander-in-chief’s other indictments, the charges against Trump in Washington represent a "watershed moment," said Frederick Lawrence, a professor at Georgetown Law and a former assistant U.S. attorney for the Southern District of New York.

“It is unique in American history that there is an indictment of a former president of the United States … to interfere with constitutional rights,” Lawrence said.

The special prosecutor's indictment outlines three criminal conspiracies used to subvert President Joe Biden’s victory in the 2020 election. Smith describes six co-conspirators, kept anonymous, but whose alleged actions match those attributed to figures close to Trump including Rudy Giuliani, John Eastman, Sidney Powell and Jeffrey Clark.

Three charges relate to the alleged conspiracies: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding and conspiracy against the right to vote and have one’s vote counted.

A fourth charge is for obstructing an official proceeding, which prosecutors claim Trump did by encouraging thousands of supporters to march on the Capitol to stop the certification.

The charge concerning voting rights stems from a Reconstruction-era law known as the Ku Klux Klan Act, which was designed to prosecute KKK members who used violence and intimidation tactics to keep Black Americans from exercising their newly gained rights. 

While it is rare for prosecutors to bring the conspiracy against voting rights charge, it was most recently used earlier this year against Douglas Mackey, a right-wing influencer who posted fake “Vote from Home” ads during the lead-up to the 2016 election. The flyers told Democrats to text a phone number with their vote and targeting Black and Spanish-speaking voters in particular. Mackey was convicted by a federal jury in Brooklyn in March

Sean Morales-Doyle, director of voting rights at the Brennan Center for Justice, sees a throughline between the statute’s original use against the KKK's efforts to stop Black people from voting and Trump’s alleged attempts to prevent votes from states with diverse populations like Arizona and Georgia.

“It’s not entirely a coincidence that the statute being used to prosecute Donald Trump is one that grew out of Reconstruction, because that was really another moment when our country was reckoning with what it really meant to have a democracy and an inclusive democracy,” Morales-Doyle said. 

It is unlikely the prosecution will argue Trump intentionally tried to disenfranchise voters of color due, to the high burden of proof that would require. More probable, Lawrence said, is a focus on proving that Trump knew his actions were illegal. 

Smith takes aim at that question throughout the indictment, listing interactions where then-Attorney General William Barr, then-Vice President Mike Pence and countless advisors told Trump that his claims of election fraud were baseless. 

In one meeting on the night of Jan. 3, 2021 — the same day Trump decided not to tap Jeffrey Clark as acting Attorney General after Justice Department officials warned of a mass resignation — advisors urged Trump not to make certain foreign policy decisions to avoid confusion before Inauguration Day. 

Trump agreed, seemingly acknowledging his time in the White House was coming to an end.

“You’re right, it’s too late for us, we’re going to give it to the next guy,” Trump said.

Trump's case was assigned to U.S. District Judge Tanya Chutkan, a Barack Obama appointee who has earned a track record as a tough sentencer in Jan. 6 cases. Chutkan has ordered prison time in each of the 38 Capitol riot sentencing hearings over which she has presided, ranging in length from 10 days to over five years.

In 19 of those cases judge the judge matched or exceeded the sentences prosecutors sought. In four cases, prosecutors weren’t seeking any jail time.  

Chutkan has also ruled against Trump previously in denying a request to block the release of documents to the House of Representatives Jan. 6 committee on the grounds of executive privilege. 

Trump will appear at the E. Barrett Prettyman federal courthouse in Washington, just two blocks from the site of the riot that spurred this investigation, on Thursday for his initial appearance before Magistrate Judge Moxila Upadhyaya.

While it may be a familiar process for the former president following his first federal indictment in the Mar-a-Lago case, the Jan. 6 case marks a turning point in our nation's history, Lawrence said.

“I think what’s at stake here is the question, 'Can the most powerful political officer in the country be held accountable by the laws of the country?'” Lawrence said. “In a democracy, the answer to that question should be yes.”

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Categories / Criminal, Law, National, Politics

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