(This is a revised version of an article that was originally released several days ago)
It was recently reported in the indictment of former President Donald J. Trump by the office of Special Counsel Jack Smith, that one of the charges filed against Trump referred to either "deprivation of rights under color of law" or "conspiracy against rights". Coverage briefly alternated between those two charges, and becuase the language of both charges is so similar, even trained lawyers often confuse the two and have to refer to Reference materials to remember which is which. This particular charge appears to have thrown many media personalities, including legal analysts, as to why it was included. In this article, I will offer a suggestion as to why Smith may have chosen this mode of proseuction: it is an act that Trump very clearly participated in, and where he has very publicly stated that he absolutely acted with criminal intent. This article will briefly describe the nature of the conspiracy and civil rights charges against Trump.
In an earlier version of this article, I referred to 18 U.S. Code § 242 - Deprivation of rights under color of law, which declares that "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 punished by up to one year in Federal prison. 18 U.S. Code § 241 - Conspiracy against rights declares that "If two or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State, Territory, Commonwealth, Possession,
or District in the free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United States..." shall be punished by up to ten years in prison. It appears that Jack Smith went back and forth as to which of these two charges best fit Trump's actions, and settled on the 241 charge. The resulting charge still constitutes a violation of the civil rights of voters. Article IV: Section 4 of the US Constitution declares that "The United States shall guarantee to every State in this Union a Republican Form of Government..." In this context, a "republican form of government" does not mean a government dominated by the Republican Party, but a government that is a democratic republic. The following passage from Federalist #39 is quoted on the Congress.gov website: "[W]e may define a republic to be, or at least may bestow that name on, a
government which derives all its powers directly or indirectly from the
great body of the people, and is administered by persons holding their
offices during pleasure, for a limited period, or during good behavior.
It is ESSENTIAL to such a government that it be derived from the great
body of the society, not from an inconsiderable proportion, or a favored
class of it; . . ." When Trump initiated his fake electors scheme, he willfully sought to violate the Constitution by denying the residents of those states where false electors were submitted of a republican form of government. Trump and his co-conspirators sought to deny the most essential component of choosing a leader, that said leader is chosen from the votes of the people. The Republican Party activists who created false slates of electors represented the "inconsiderable proportion" and "favored class" that is specifically warned against in Federalist #39.Trump and all of his co-conspirators willfully sought to violate the Constitutional rights of every citizen in those states where fake electors were submitted.
Furthermore, Trump has openly discussed his participation in this scheme, and repeatedly confirmed that he acted with criminal intent when he declared that Mike Pence "failed to do the right thing", when he refused to throw out electors that were certified by the states, and replace those electors with the slates of partisan activists who intended to vote for Trump. Not only did Trump repeatedly state that he fully intended for Mike Pence to throw out legitimately cast votes, but Trump is so certain of his criminal intent that he's even stated that investigators should "look into" Pence's reasons for refusing to certify the false slates of electors. Trump has repeated his intentions so many times over, and in such explicit terms, that there is absolutely no way that he can deny that he intended to throw out legitimately cast votes, thereby denying American voters of a republican form of government. The submission of fake electoral votes constituted a conspiracy to oppress voters by casting out votes certified by the states and substituting votes cast by a slate of partisan activists.
Republicans are sure to be irate over Smith's actions, becuase these charges mean that every single Republican who aided and abetted Trump to promote the fake electors conspiracy is guilty of the same Civil rights violation, as well as conspiracy to defraud the government. That includes every single person who participated in discussions about the fake electors scheme in the "war room" at the Willard hotel, as well as any members of Congress who were aware of Trump's intent to subvert the elections process and participated in discussions to promote that scheme. The Supreme Court's refusal to intervene in Lindsay Graham's court case against the Fulton County Special Grand Jury acts as a confirmation from the ruling in that case that investigators and courts may inquire about any "non-legislative conduct, including communications with the Trump Campaign [and] public statements on the 2020 election..." One of the controlling precedents for Conspiracy to defraud the United States that is cited in Department of Justice documentation comes from the case Hammerschmidt v. United States and declares: "To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention." There is no question that seeking to deny voters of a Republican form of government by casting out electors certified by the states and substituting electors chosen for their partisan political inclinations absolutely qualifies as interfering or obstructing a lawful government function by deceit, craft or trickery. Every single Republican who participated in Trump's scheme and who took concrete steps to try to promote the conspiracy is guilty.
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