Section 241 of Title 18 is MAGA Law's New Shiny Object
Previous posts cover the Heritage Foundation’s Project 2025 plan for another Trump Administration. The Project 2025 plan for the Department of Justice recommends using 18 U.S.C. § 241, an 1870 civil rights law, to prosecute state officials (maybe even judges) if DOJ disagrees with how they apply state election law. The recommendation is insane. It proposes using § 241 as a weapon against Pennsylvania officials who, during the 2020 election, accepted absentee ballots post-marked before election day even if they were received after election day. The state also allowed curing ballots with errors. Pennsylvania courts endorsed those actions. Trump blamed the absentee ballots for his loss. It became a MAGA bête noire. Members of congress rallied around criticisms of the state officials to justify undermining the certification of the election, even if unwilling to endorse Trump’s broader election lies. Indeed, that’s how now-Speaker Mike Johnson made his mark on the right.
It would be tempting to dismiss the recommendation as quackery, even among the fringe, if it weren’t included in a playbook vetted by an army of likely future Trump officials. Investigating state officials for allegedly misapplying state election laws, absent any corrupt motive, would blatantly violate federalism principles, not to mention DOJ and FBI policy. The recommendation is breathtakingly hypocritical. Conservatives selectively resist federal intervention in state affairs, usually to oppose civil rights. Now MAGA law suggests weaponizing a civil rights statute against state officials whose only purpose was to accommodate absentee voting during COVID.
This outlandish recommendation isn’t a one-off. We’re seeing § 241 invoked by other parts of the MAGA legal brain trust to threaten investigations and prosecutions of political opponents. The other day, MAGA lawyer Mike David (an ex-clerk to Justice Gorsuch and former Republican chief counsel on the Judiciary Committee, if you can believe that) posted this warning on X/Twitter:
“Dear Biden Democrats: Have fun now. Because you are going to face severe political, legal, and financial consequences after January 20, 2025. Conspiracy against rights. 18 U.S.C. § 241. Lawyer up.”
Section 241 is one of the counts against Trump in the Special Counsel’s January 6 criminal indictment. Flipping Trump critics’ accusations against them is typical MAGA. As Trump shot back at Hillary Clinton, “I’m no puppet, you’re the puppet!” But just as we should take the Project 2025 recommendation seriously, we should take this threat seriously. The Trump team is cataloging the laws Trump can use to retaliate and increase presidential authority, including the Insurrection Act. The Project 2025 playbook repeatedly advocates hiring “creative” and aggressive lawyers to carry out the agenda.
But how would a Trump administration pursue this outlandish idea? Analyzing that question illustrates how Trump 2.0 would seek to undermine established laws and institutional norms.
Section 241 makes it a crime for “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, or because of his having so exercised the same.” The law was a response to white supremacist violence in the south immediately after the Civil War. It was used to prosecute racist groups like the Ku Klux Klan that sought to suppress black voting. It has also been used to prosecute election-related crimes that involve corruption but do not target specific classes of voters, such as ballot stuffing, ballot destruction, and other types of election fraud. Courts have held that such actions injure voters in the enjoyment of their constitutional and statutory voting rights.
Under the MAGA theory, any decision by a state election official that DOJ thinks violates state law could be criminally investigated, even if the actions are pursuant to official authority, open, and reviewed by state courts. The MAGA lawyers view the Pennsylvania election decisions that they think harmed Trump as equivalent to ballot destruction or ballot fraud. Consistent with their conspiracy theory view of politics, they probably believe the officials took the actions not to maximize voting but to help Biden.
The Twitter threat to prosecute Democrats under § 241 probably rests on the view that the criminal cases against Trump purposefully injured him, and perhaps others, in the exercise of their rights around the election. The post responds to news of the suspension of John Eastman’s law license, so it must have in mind criminally investigating state bar licensing authorities as well. Section 241 is the weapon to retaliate against opponents who undermine Trump and his associates through illegitimate investigations and prosecutions. We can only guess at the other conduct MAGA lawyers might seek to target. They are all about victimization, so they’ll have a long list of violations.
Bringing such meritless politically motivated prosecutions would be hard. It would require convincing a grand jury to indict, a judge not to dismiss, a jury to convict, and a court of appeals to affirm. That couldn’t happen without gutting the criminal justice process. But recent actions by Trump judicial appointees and conservative justices—Alito, Cannon, and Kacsmaryk, to name a few—should raise concern about how far a pro-Trump judiciary might go.
The MAGA lawyers may be crazy, but they aren’t stupid. They probably have no intention of bringing such prosecutions. They want to threaten officials and political opponents. Even absent prosecution, investigations would chill political opponents targeted by DOJ. To investigate and threaten such prosecutions, however, would require trashing DOJ and FBI policies and norms. Those include the FBI’s Attorney General guidelines, which establish the thresholds for opening investigations, and DOJ’s principles of federal prosecution.
It is hard to image career agents or lawyers at DOJ, including FBI, participating in such a political vendetta. But that goes to the more fundamental Project 2025 plan to stack federal agencies with political appointees farther down into the organizations, convert career positions into political positions, and assert White House control over DOJ and FBI. DOJ leadership could also overcome institutional opposition by appointing a hack as an outside special counsel, reporting to a Trump Attorney General. The special counsel could staff his office with extremist lawyers hired from outside DOJ.
So next time you see Trump post about how he wants Special Counsel Jack Smith arrested and prosecuted, know that § 241 is the weapon the MAGA legal minds are lining up for the job.