Reconstruction Era

Subterms

    Latest story

    100 Shares169 Views

    Jan. 6 Cannot Go Down the Memory Hole

    by

    Following the passage of the first Enforcement Acts, written to protect the civil rights of the formerly enslaved, Congress created a bipartisan committee in 1871 to investigate reports of vigilante violence against freed people and their white allies in the states of the former Confederacy. The next year, the Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States released its report, a 13-volume collection of testimony from 600 witnesses, totaling more than 8,000 pages.The men and women who spoke to the committee attested to pervasive violence and intimidation. There were innumerable reports of whippings and beatings and killings. “Tom Roundtree, alias Black, a negro, murdered by a Ku-Klux mob of some fifty or sixty persons, who came to his house at night on the 3rd of December last, took him out, shot him, and cut his throat,” reads a typical entry in the volume devoted to Klan activity in South Carolina. “James Williams,” reads another entry in the same volume, “taken from his home at night and hung, by Ku-Klux numbering about forty or fifty.”There were also, as the historian Kidada E. Williams shows in “I Saw Death Coming: A History of Terror and Survival in the War Against Reconstruction,” accounts of terrible sexual violence. Williams describes one attack in which a group of vigilantes whipped their victim, Frances Gilmore of Chatham County, N.C., “set fire to her pubic hair, and cut her genitals.”Because of these reports and others collected by lawyers, journalists and other investigators, the American public had “access to more information about the Ku-Klux than about almost any other person, event, phenomenon, or movement in the nation,” the historian Elaine Frantz Parsons observes in “Ku-Klux: The Birth of the Klan during Reconstruction.” Between government reports, testimony from witnesses, the confessions of actual Klansmen and the physical evidence of violence and destruction, it would seem impossible to deny the awful scope of Klan terror, much less the existence of the Klan itself.Yet that is exactly what happened.“Despite massive and productive public and private efforts to gather, circulate and evaluate information about the Ku-Klux Klan,” Parsons writes, “the national debate over the Ku-Klux failed to move beyond the simple question of whether the Ku-Klux existed.”In fact, as the historian Stephen A. West points out in The Washington Post in a 2022 piece on the committee’s report, “for much of the last 150 years, Reconstruction’s critics trivialized Black witnesses’ testimony in the Klan report and used it instead to discredit the period’s democratic possibilities.”It is difficult to look at this episode, which transpired a little more than 150 years ago, and not think of the House Select Committee on Jan. 6, which compiled a similarly painstaking record of fact on the effort to subvert the 2020 presidential election. Thousands of pages of testimony. Tens of thousands of hours of video footage. The words, under oath, of men and women who participated. The physical evidence. The broken bodies and lost lives.We know, as much as we can know anything, that Donald Trump led a conspiracy to overturn the results of an election that he lost. We know that this involved an attempt to derail the certification of electoral votes. We know that he assembled a crowd of thousands to protest that process. We know that he told that crowd, soon a mob, to “fight like hell” to try to seize the victory they could not win at the ballot box.But despite this unambiguous evidence of insurrection, there is a concerted effort — either out of skepticism or denial — to present the events of Jan. 6, including the schemes that led up to the attack on the Capitol, as something else. The legitimate protest of an exuberantly disappointed group of ordinary American voters, perhaps, or — in the rendering of Trump’s most devoted apologists — a last-ditch effort to save the Republic itself from the illegitimate grasp of Joe Biden and the Democratic Party.It is tempting to say that the facts contained in the Jan. 6 committee report will stand on their own, that the body of evidence is simply too great to sustain a posture of skepticism and denial. But facts are mediated to us through our beliefs, experiences and interests. Most people do not and will not believe facts that cut against those beliefs, experiences and interests.In the case of the Ku Klux Klan testimony, it was in the political, social or ideological interests of many Americans — from partisans of the Democratic Party to leading members of the national press — to downplay the significance of the testimony. The same is true today of the facts gathered by the Jan. 6 committee.Those facts will not speak for themselves. The struggle for the meaning of Jan. 6 will, like the struggle over the significance of the Reconstruction-era Ku Klux Klan, resolve itself only through politics. And in much the same way that the collapse of Reconstruction and the political victory of so-called Redeemers heralded the ideological victory of the Klan’s defenders, sympathizers and apologists, it is Trump’s ultimate fate that will shape and determine our lasting memory of what happened on Jan. 6.In other words, the world in which the attack on the Capitol of the United States by the vengeful followers of a defeated president is just ordinary politics gone a little wild is a world in which Trump and his rioters eventually won.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

    More stories

    • 63 Shares99 Views

      in Elections

      History Argues for Disqualifying Trump

      by

      One of the most difficult things to ask a judge to do is issue a ruling that he or she believes is actually dangerous. Even if you can make a strong case that the letter of the law is on your side, judges are tempted to narrow the reach of disfavored laws or sometimes virtually rewrite them in order to avoid outcomes that are deemed too radical or disruptive.Thus, it’s incumbent on good lawyers to argue not merely in favor of the letter of the law but also for the underlying merit of the law itself. My newsletter two weeks ago focused mainly on the legal argument for disqualifying Donald Trump from the presidency on the basis of the text and history of Section 3 of the 14th Amendment. I made the case that the plain language of the amendment should disqualify Trump regardless of the consequences, which many observers — including some strongly opposed to Trump — believe would be dire and violent.Today, by contrast, I will make the case that even the consequences argue for Trump’s disqualification. Or, put more directly, that the consequences of not disqualifying the former president are likely to be worse than those of disqualifying him. This is the lesson of history both recent — the Trump era and Jan. 6, 2021 — and more distant. The profound mistakes of the Reconstruction-era Congress, just years after the Civil War and the ratification of the 14th Amendment, teach us about the high cost of welcoming insurrectionists back into high office.I addressed these points briefly in a short post for our new Opinion blog, but they deserve more attention. Critics of applying Section 3 to Trump have correctly and eloquently argued that removing him from the race could trigger a convulsive and potentially violent backlash in the American body politic. Millions of Americans would feel as if their choice was taken from them and that scheming elites were destroying American democracy.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

    • 113 Shares99 Views

      in Elections

      The 14th Amendment Disqualification Was Not Meant for Trump

      by

      Challenges to disqualify Donald Trump from the office of president under Section 3 of the 14th Amendment are popping up all over the country. On Thursday, the secretary of state of Maine ruled that Mr. Trump would be ineligible for the state’s primary ballot, a decision that can be appealed to the state’s Supreme Court. On Wednesday, the Michigan Supreme Court ruled narrowly that the state will allow Mr. Trump to stay on the primary ballot — but left open a potential future challenge to his inclusion on a general-election ballot.But so far only one — the Colorado Supreme Court’s ruling that bars Mr. Trump from the primary ballot — has reached the doorstep of the U.S. Supreme Court.The Supreme Court should take the case and reverse the Colorado Supreme Court ruling, and do so for the very reason cited by the Colorado judges. According to the Colorado court (itself quoting an earlier, unrelated case), Section 3 should be interpreted “in light of the objective sought to be achieved and the mischief to be avoided.”That is exactly right. The Colorado court failed, however, to follow its own advice.When Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president. Instead, Republicans feared that the leaders of the late rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president.To date, much of the debate over Section 3 has focused on whether the president is an “officer” who takes an “oath.” This is an issue in the second part of the provision. What neither scholars nor courts have yet focused on is first part of Section 3. The threshold issue is whether the framers and ratifiers thought that the president holds a “civil” office “under the United States.” This is a much more specific and historically difficult question.Here are the key opening words of Section 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State …”The text begins by expressly naming offices that rebel leaders might conceivably secure for themselves on the basis of their local popularity. The greatest fear was that these rebels would return to Congress and join Northern Democrats in thwarting Republican Reconstruction policy.As Representative Thaddeus Stevens warned his colleagues, without a properly worded Section 3, “that side of the House will be filled with yelling secessionists and hissing copperheads” — a reference to Northern Democrats who had opposed the Civil War. It was possible that a coalition of Southern and Northern Democratic presidential electors would nominate a “hissing copperhead.”Congressional Republicans were so concerned about mischief in the Electoral College that they delayed the passage of the 14th Amendment in order to make sure the issue was properly addressed. The Joint Committee’s draft of Section 3 prohibited rebels from voting for presidential electors, but this left open an enormous loophole. As Representative John Longyear pointed out, this prohibition would be “easily evaded by appointing electors of President and Vice President through their legislatures.”Senator Jacob Howard agreed that Section 3 would not “prevent state legislatures from choosing rebels as presidential electors,” and he led the effort to rewrite Section 3 in a manner that closed the loophole. The result is the final version that prohibits leading rebels from serving as presidential electors, whether elected or appointed.The only reason to secure a trustworthy Electoral College is in order to secure a trustworthy president. So Section 3 focuses on state-level decision making. It expressly addresses three key positions where leading rebels might use their remaining popularity to disrupt Republican Reconstruction: the Senate, the House of Representatives and state-selected presidential electors.Radical Republicans like Thaddeus Stevens would have gone further and completely disenfranchised anyone who had participated in the rebellion, leader or not. Moderate Republicans, however, were more optimistic. As Senator Daniel Clark noted, once leading rebels were removed, “those who have moved in humble spheres [would] return to their loyalty and to the Government.”The strategy worked. In 1868, despite the scattered participation of former rebel soldiers as presidential electors, Southern Black voters helped elect the Republican Ulysses S. Grant over the Democrat Horatio Seymour.It is possible to read Section 3 as impliedly including the office of president as one of the “civil” offices “under the United States” covered by the general catchall provision. It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers, but the text is ambiguous enough to make this a possible reading.However, if the framers meant the catchall provision to include both presidents and postmasters, they were remarkably negligent. According to longstanding congressional precedent and legal authority, the phrase “civil office under the United States” did not include the office of president of the United States. As Joseph Story explained in his influential “Commentaries on the Constitution of the United States,” the congressional precedent known as “Blount’s Case” established that the offices of president, senator and representative were not civil offices under the government of the United States — they were the government of the United States. The phrase “civil office under the United States” referred to appointed offices.In addition to legal authority, there is also common sense to guide us. The text of Section 3 is structured in a manner that moves from high federal office to low state office, and the apex federal political offices are expressly named. As the former Attorney General Reverdy Johnson explained, “the specific exclusion in the case of Senators and Representatives” led him to initially presume that the framers excluded the office of president. Johnson accepted a colleague’s suggestion to the contrary, but if the text created such a presumption in the mind of a former attorney general, it is reasonable to think it may have created the same presumption in the minds of ratifiers.Actually, we have no idea whether the ratifiers shared Johnson’s initial presumption. This is because no one has discovered a single example of any ratifier discussing whether Section 3 included the office of president of the United States. Despite extraordinary efforts by researchers, no one has yet found evidence that any ratifier even considered the possibility that Section 3 abridged the people’s right to choose their president.The silence of the ratifiers on this point is important. Those favoring the disqualification of Mr. Trump insist that there is nothing “anti-democratic” about constraining the presidential choices of the national electorate. The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish. Article II, Section One, for example, prevents the people from electing anyone who is under age 35 or who is a foreign-born candidate.Those qualifications are expressly declared in the text and they received robust vetting and debate in the ratifying conventions. In the case of Section 3, the Supreme Court is being asked to impose new constraints on the democratic process by way of textual implication and in the absence of any public debate whatsoever.Such a reading is neither democratically appropriate nor textually necessary. And it was most certainly not “the objective sought to be achieved [or] the mischief to be avoided” by Section 3.At best, the text of Section 3 is ambiguous regarding the office of president. The Supreme Court should limit the clause to its historically verifiable meaning and scope.Let the people make their own decision about Donald Trump.Kurt Lash, a professor at the University of Richmond School of Law, is the author of, most recently, “The Reconstruction Amendments: Essential Documents” and the forthcoming “A Troubled Birth of Freedom: The Struggle to Amend the Constitution in the Aftermath of the Civil War.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

    • 138 Shares169 Views

      in Elections

      Is Trump Disqualified From Holding Office? The Question Matters, Beyond Him.

      by

      State courts in Colorado, Michigan, Minnesota and elsewhere have so far declined to rule in favor of challenges asserting that Donald Trump should be disqualified from holding the presidency again under Section 3 of the 14th Amendment. (Cases in Michigan and Colorado have been appealed.)Challengers assert that Mr. Trump is barred because, as stated in Section 3, he was an officer of the United States who, after taking an oath to support the Constitution, “engaged in insurrection or rebellion against” the country, or gave “aid or comfort to the enemies thereof,” before and during the Jan. 6, 2021, attack on the Capitol.Mr. Trump and his campaign have called this claim an “absurd conspiracy theory” and efforts to bar him “election interference.” Some election officials and legal scholars — many of them otherwise opposed to the former president — have also been critical of the efforts.The Georgia secretary of state, Brad Raffensperger, writes that invoking Section 3 “is merely the newest way of attempting to short-circuit the ballot box.” Michael McConnell, a former judge and professor at Stanford Law School, claims that keeping Mr. Trump off the ballot on grounds that are “debatable at best is not something that will be regarded as legitimate.”We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.We are confirming your access to this article, this will take just a moment. However, if you are using Reader mode please log in, subscribe, or exit Reader mode since we are unable to verify access in that state.Confirming article access.If you are a subscriber, please  More

    • 138 Shares119 Views

      in Elections

      With the Latest Trump Indictment, Mind These Lessons From the South

      by

      With her sweeping indictment of former President Donald Trump and over a dozen co-conspirators, the Fulton County, Ga., district attorney Fani Willis is now set to prosecute her case in a court of law. Just as important, it is essential that she and others continue to explain to the American public why the decision serves a critical purpose beyond the courts and for the health of our constitutional order.The indictment should be situated in the broader arc of American political development, particularly in the South. That history justifies using the criminal justice system to protect the democratic process in Georgia — a critical swing state — for elections now and in the future.We have the benefit of hindsight to heed the great lesson of the Reconstruction era and the period of redemption that followed: When authoritarians attack democracy and lawbreakers are allowed to walk away from those attacks with impunity, they will try again, believing there are no repercussions.We should not make those mistakes again.The period after the American Civil War entrenched many of America’s political ills. Ex-confederates were welcomed back into the body politic without meaningful penance. There were vanishingly few arrests, trials and lengthy punishments. Suffering minimal political disabilities, they could muster enough power to “redeem” Southern governments from biracial coalitions that had considerable sway to remake the South.Examples of democratic decay were regrettably abundant. An early sign occurred in Louisiana. With a multiracial electorate, Reconstruction Louisiana held great promise. During contentious state elections in 1872, Louisiana Democrats intimidated Black voters from casting ballots and corruptly claimed victory. The disputed election spurred political violence to assert white supremacy, including the Colfax Massacre in 1873, where as many as 150 Black citizens were killed in Grant Parish when a white mob sought to take control of the local government.Federal prosecutors brought charges against a number of the perpetrators. But in 1876, the Supreme Court held in United States v. Cruikshank that the federal government could not prosecute private violence under the 14th Amendment because it could only protect citizens against constitutional rights violations by state actors. By its decision, the court gave license to mobs to disrupt the peaceful transition of power with grave consequences.South Carolina could have been a Reconstruction success story. Its state constitution and government reflected the values and priorities of its Black majority. The planter elite attacked the Reconstruction government as a socialist rabble and baselessly mocked elected officials as incompetent. In the lead-up to elections in 1876, political violence brewed across the state, and Democrats secured a narrow victory. But democratic decay was precipitous. Over time, South Carolina imposed new limits on voting, moving precincts into white neighborhoods and creating a confusing system. Legislators passed the Eight Box Law, which required voters to submit a separate ballot for each elected office in a different box and invalidated any votes submitted in the wrong box. This created a barrier to voting for people who could not read.The lack of repercussions for political violence and voter suppression did little to curb the impulse to crush biracial democracy by mob rule. The backsliding spread like cancer to Mississippi, Virginia and North Carolina.In Georgia, just before the state was initially readmitted to the Union, Georgians elected a Republican to the governorship and a Republican majority to the state senate. Yet the promise of a strong Republican showing was a mirage. Conservative Republicans and Democrats joined forces to expel more than two dozen Black legislators from the Georgia General Assembly in September 1868. From there, tensions only grew. Political violence erupted throughout the state as elections drew closer that fall, most tragically in Camilla, where white supremacists killed about a dozen Black Georgians at a Republican political rally.The democratic failures of that era shared three common attributes. The political process was neither free nor fair, as citizens were prevented from voting and lawful votes were discounted. The Southern Redeemers refused to recognize their opponents as legitimate electoral players. And conservatives abandoned the rule of law, engaging in intimidation and political violence to extinguish the power of multiracial political coalitions.At bottom, the theory behind the Fulton County indictment accuses Mr. Trump and his allies of some of these same offenses.The phone call between Mr. Trump and the Georgia secretary of state Brad Raffensperger (“Fellas, I need 11,000 votes,” Mr. Trump demanded) is crucial evidence backing for a charge relating to soliciting a public officer to violate his oath of office. Mr. Trump’s coercive tactics persisted even though he should have known that Joe Biden fairly won the state’s Electoral College votes. But facts never seemed to matter. Mr. Trump’s false allegation of a rigged contest — a claim he and others made well before voting began — was grounded in a belief that opposition to his re-election was never legitimate.Mr. Trump and his allies could not accept that an emerging multiracial coalition of voters across the state rejected him. Election deniers focused on Atlanta, a city whose Black residents total about half the population, as the place where Georgia’s election was purportedly stolen. The dangerous mix of racial grievance and authoritarian impulses left Trump loyalists feeling justified to concoct the fake electors scheme and imploring the General Assembly to go into a special session to arbitrarily undo the will of Georgians.Political violence and intimidation are some of the most obvious symptoms of democratic decay. The charges in Fulton County are an attempt to use the criminal justice system to repudiate political violence.The sprawling case is stronger because the conspiracy to overturn Georgia’s presidential election results was replete with acts of intimidation by numerous people. Mr. Trump and Rudy Giuliani engaged in a full-scale harassment campaign against Fulton County election workers when they baselessly alleged that two individuals added fake votes to Mr. Biden’s tally. Mr. Trump threatened Mr. Raffensperger and a state employee with “a criminal offense” if they declined to join his corruption, warning them they were taking “a big risk.” A healthy democracy cannot tolerate this behavior.Democracy is not guaranteed, and democratic backsliding is never inevitable. The country avoided the worst, but the past few years have still been profoundly destabilizing for the constitutional order in ways akin to some of the nation’s darker moments.Indeed, the case by Ms. Willis can be seen as an effort to avoid darker moments in the future, especially for a critical swing state like Georgia. We should remember the words in 1871 of Georgia’s first Black congressman, Jefferson Franklin Long, who spoke out when Congress debated relaxing the requirements for restoring certain rights to ex-Confederates without meaningful contrition: “If this House removes the disabilities of disloyal men … I venture to prophesy you will again have trouble from the very same men who gave you trouble before.”His prediction proved all too accurate. It now may be up to the people of Fulton County to stop election denialism’s widening gyre.Anthony Michael Kreis is an assistant professor of law at Georgia State University, where he teaches and studies constitutional law and the history of American politics.Source photographs by Bettmann, Buyenlarge, and Corbis Historical, via Getty.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 163 Shares169 Views

      in Elections

      It’s No Surprise That Donald Trump Is Being Charged Under a Reconstruction-Era Law

      by

      Of the four charges included in the latest federal indictment of Donald Trump, one — violating Section 241 of Title 18 of the United States Code — seemed to surprise many. It shouldn’t have.That statute dates back to Reconstruction, as Congress responded to the Confederacy’s white-power insurrection against the United States. Reconstruction sought not only to restore the Union after the Civil War, but also to build guardrails against such an authoritarian faction ever again being able to subvert the Republic.It’s therefore appropriate that Section 241 and other Reconstruction-era laws are precisely those that the American legal system is turning to in response to a former president who stoked the flames of an insurrection in which a violent mob stormed the Capitol in an effort to undermine the democratic process. One of the rioters, later sentenced to three years in prison, carried a Confederate flag into the Capitol, an indelible image captured in photographs and widely circulated.Congress enacted Section 241 as part of the Civil Rights Act of 1870 (also known as the Enforcement Act for its role in enforcing the terms of the 13th, 14th and 15th Amendments, crucial to providing Black people with the rights and protections of citizenship). The law addressed the rise of white supremacist groups after the Civil War, especially the Ku Klux Klan, which organized citizens and public officials to intimidate freed Black people to suppress their participation in the political process. It empowered federal agents to stop these conspirators from depriving any Americans, in particular Black Americans, of the right to have a say in their government.The Justice Department has charged Mr. Trump with doing exactly that: the government asserts in its detailed 45-page indictment that through his attempts “to overturn the legitimate results of the 2020 presidential election,” Mr. Trump conspired to “injure, oppress, threaten and intimidate” voters in exercising their “right to vote, and to have one’s vote counted.”Bringing civil rights charges against the former president is not overreach by the Justice Department, as some have suggested. By enforcing the Civil Rights Act of 1870, the department is doing the very thing the law was designed to do by prosecuting a political leader who, while in office and after, sought to cancel the votes of millions to hold power.In 1871, with Klan violence continuing, Congress passed two more bills to enforce the 13th, 14th and 15th Amendments, known as the Ku Klux Klan acts. Among other things, these laws empowered citizens to sue anyone who conspired to intimidate or retaliate against them for exercising their political rights.Armed with these laws, the Justice Department oversaw the arrest and conviction of hundreds of Klansmen, and by 1873 the group had been effectively (though temporarily) crushed. While Section 241 has regularly been used ever since to police civil rights violations, with the end of Reconstruction in 1877, Klan Act litigation brought by private parties declined precipitously, according to our research, until in recent years.In July 2017, our organization, Protect Democracy, filed a Klan Act lawsuit against the 2016 Trump campaign over what we asserted was its role in Russian efforts to compromise the political rights of Americans. While that suit did not succeed, it was the beginning of a spate of private Klan Act litigation unseen in more than 100 years.Several lawsuits have been filed by our group and others. Among the results: A restraining order was issued against armed groups that surrounded ballot drop boxes in ways that intimidated voters; the Proud Boys were ordered to pay more than $1 million in damages for desecrating the property of a Black church; and a jury ordered 17 white nationalist leaders and organizations to pay more than $26 million in damages to nine people who suffered physical or emotional injuries at the Charlottesville Unite the Right rally in 2017. Still pending are lawsuits seeking damages against those responsible for Jan. 6, against those who organized a car caravan that threatened to drive a campaign bus off the highway and against Mr. Trump and others for seeking to deprive Black voters from having their votes counted in the 2020 election.Other Reconstruction-era laws are also in the center of debates today. Congress recently reformed the Electoral Count Act, passed in response to the contested presidential election of 1876, after Mr. Trump and his allies sought to use the law’s ambiguities to overturn the 2020 election. The former president has also pledged, if re-elected, to abolish the 14th Amendment’s guarantee of birthright citizenship. That guarantee was ratified in 1868 to reverse the Supreme Court’s Dred Scott decision holding that African Americans were not citizens.Yet another 14th Amendment provision, Section 3’s prohibition on those who have engaged in insurrection against the United States from holding power again, was recently applied for the first time since Reconstruction to bar from office a New Mexico county commissioner who breached the barricades outside the Capitol on Jan. 6. And recently, our organization filed a voting rights lawsuit under the 1870 law that readmitted Virginia to the Union. The Virginia Readmission Act limited the circumstances in which the state could disenfranchise its citizens, and our lawsuit argues that the state’s lifetime ban on voting by anyone convicted of any felony violates that law.These battles are the newest iterations of the Reconstruction-era clashes. Just as the integration of freed Black people into our democracy in the 1870s was met with fierce resistance, so too did the election of the nation’s first Black president give rise to a revival of open bigotry. And just as the enactment of laws in the 1870s to enforce equal citizenship were met with intransigence, so too today should we expect to see their enforcement resisted.The outcome of these legal clashes will determine the future of the country’s experiment in self-government. Either these laws will finally be fully realized and usher in a true multiracial democracy or the 150-year resistance to Reconstruction will prevail and white Americans reluctant to share power will reinforce their dominance over a diversifying nation. Authoritarianism rather than democracy would then be the order of the day.Ian Bassin is a co-founder and the executive director of the group Protect Democracy and a former associate White House counsel. Kristy Parker is counsel at Protect Democracy and the former deputy chief of the criminal section of the Justice Department’s Civil Rights Division.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 138 Shares119 Views

      in Elections

      Potential Trump Jan. 6 Charges Include a Civil Rights Law Violation

      by

      A target letter sent by the special counsel investigating Donald Trump’s efforts to reverse his election loss cited three statutes that could be the basis for a prosecution.Federal prosecutors have introduced a new twist in the Jan. 6 investigation by suggesting in a target letter that they could charge former President Donald J. Trump with violating a civil rights statute that dates back to the post-Civil War Reconstruction era, according to three people familiar with the matter.The letter to Mr. Trump from the special counsel, Jack Smith, referred to three criminal statutes as part of the grand jury investigation into Mr. Trump’s efforts to reverse his 2020 election loss, according to two people with knowledge of its contents. Two of the statutes were familiar from the criminal referral by the House Jan. 6 committee and months of discussion by legal experts: conspiracy to defraud the government and obstruction of an official proceeding.But the third criminal law cited in the letter was a surprise: Section 241 of Title 18 of the United States Code, which makes it a crime for people to “conspire to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”Congress enacted that statute after the Civil War to provide a tool for federal agents to go after Southern whites, including Ku Klux Klan members, who engaged in terrorism to prevent formerly enslaved African Americans from voting. But in the modern era, it has been used more broadly, including in cases of voting fraud conspiracies.A Justice Department spokesman declined to discuss the target letter and Mr. Smith’s theory for bringing the Section 241 statute into the Jan. 6 investigation. But the modern usage of the law raised the possibility that Mr. Trump, who baselessly declared the election he lost to have been rigged, could face prosecution on accusations of trying to rig the election himself.A series of 20th-century cases upheld application of the law in cases involving alleged tampering with ballot boxes by casting false votes or falsely tabulating votes after the election was over, even if no specific voter could be considered the victim.In a 1950 opinion by the Court of Appeals for the Sixth Circuit, for example, Judge Charles C. Simons wrote of applying Section 241 in a ballot box-stuffing case that the right to an honest count “is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.”In a 1974 Supreme Court opinion upholding the use of Section 241 to charge West Virginians who cast fake votes on a voting machine, Justice Thurgood Marshall cited Judge Simons and added that every voter “has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.”The line of 20th-century cases raised the prospect that Mr. Smith and his team could be weighing using that law to cover efforts by Mr. Trump and his associates to flip the outcome of states he lost. Those efforts included the recorded phone conversation in which Mr. Trump tried to bully Georgia’s secretary of state to “find” enough additional votes to overcome Mr. Biden’s win in that state and promoting a plan to use so-called fake electors — self-appointed slates of pro-Trump electors from states won by Mr. Biden — to help block or delay congressional certification of Mr. Trump’s defeat.“It seems like under 241 there’s at least a right to an honest counting of the votes,” said Norman Eisen, who worked for the House Judiciary Committee during Mr. Trump’s first impeachment. “Submitting an alternate electoral certificate to Congress (as opposed to casting false votes or counting wrong) is a novel scenario, but it seems like it would violate this right.”The prospect of charging Mr. Trump under the other two statutes cited in the target letter is less novel, if not without hurdles. Among other things, in its final report last year, the House committee that investigated the events that culminated in the Jan. 6 attack on the Capitol had recommended that the Justice Department charge the former president under both of them.One, Section 371 of Title 18, makes it a crime to conspire to defraud the United States. The other, Section 1512, includes a provision that makes it a crime to corruptly obstruct an official proceeding.A spokesman for Mr. Trump declined requests to clarify what was in the letter.Citing the statutes in the letter, which Mr. Trump has said he received on Sunday, does not necessarily mean that any charges brought by Mr. Smith would have to be based on them. But the letter’s contents provide a road map to investigators’ thinking.The conspiracy to defraud the United States statute, if used, raises the question of who Mr. Trump’s co-conspirators would be.Some of those who worked most closely with Mr. Trump in promoting the lie that Mr. Trump had been robbed of a victory by widespread fraud, including lawyers like Rudolph W. Giuliani and John Eastman, had not received target letters, their lawyers said on Tuesday.The corrupt obstruction of a proceeding charge has been used against hundreds of Jan. 6 rioters and has served as the Justice Department’s go-to count in describing the central event that day: the disruption of the Electoral College certification process that was taking place inside the Capitol during a joint session of Congress.The law was originally passed as part of the Sarbanes-Oxley Act, a measure meant to curb corporate malfeasance. Defense lawyers for several rioters have challenged its use against their client, saying it was meant to stop crimes like witness tampering or document destruction and had been unfairly stretched to include the chaos at the Capitol.But in April, a federal appeals court upheld the viability of applying that charge to participants in the Capitol attack. Still, unlike ordinary rioters, Mr. Trump did not physically participate in the storming of the Capitol, although he had summoned supporters to Washington that day and railed about the unwillingness of Vice President Mike Pence, who was presiding over the proceedings in Congress, to stop them.A second attempt to invalidate the obstruction count in the federal appeals court in Washington has focused specifically on a provision of the law dictating that defendants must act “corruptly” in committing the obstructive act.Defense lawyers have argued that this provision does not apply to many ordinary Jan. 6 rioters who did not act corruptly because they stood to gain nothing personally by entering the Capitol. It could, however, be applied more easily to Mr. Trump, who stood to gain an election victory by obstructing the certification process.William K. Rashbaum More

    • 88 Shares189 Views

      in Elections

      Why I Keep Coming Back to Reconstruction

      by

      I write frequently about the Reconstruction period after the Civil War not to make predictions or analogies but to show how a previous generation of Americans grappled with their own set of questions about the scope and reach of our Constitution, our government and our democracy.The scholarship on Reconstruction is vast and comprehensive. But my touchstone for thinking about the period continues to be W.E.B. Du Bois’s “Black Reconstruction,” published in 1935 after years of painstaking research, often inhibited by segregation and the racism of Southern institutions of higher education.I return to Du Bois, even as I read more recent work, because he offers a framework that is useful, I think, for analyzing the struggle for democracy in our own time.The central conceit of Du Bois’s landmark study — whose full title is “Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860-1880” — is that the period was a grand struggle between “two theories of the future of America,” rooted in the relationship of American labor to American democracy.“What were to be the limits of democratic control in the United States?” Du Bois asks. “Was the rule of the mass of Americans to be unlimited, and the right to rule extended to all men regardless of race and color?” And if not, he continues, “How would property and privilege be protected?”On one side in the conflict over these questions was “an autocracy determined at any price to amass wealth and power”; on the other was an “abolition-democracy based on freedom, intelligence and power for all men.”The term “abolition-democracy” began with Du Bois and is worth further exploration.Abolition-democracy, Du Bois writes, was the “liberal movement among both laborers and small capitalists” who saw “the danger of slavery to both capital and labor.” Its standard-bearers were abolitionists like Wendell Phillips and radical antislavery politicians like Charles Sumner and Thaddeus Stephens, and in its eyes, “the only real object” of the Civil War was the abolition of slavery and “it was convinced that this could be thoroughly accomplished only if the emancipated Negroes became free citizens and voters.”It was also clear, to some within abolition-democracy, that “freedom in order to be free required a minimum of capital in addition to political rights.” In this way, abolition-democracy was an anticipation of social democratic ideology, although few of its proponents, in Du Bois’s view, grasped the full significance of their analysis of the relationship between political freedom, civil rights and economic security.Opposing abolition-democracy, in Du Bois’s telling, were the reactionaries of the former Confederate South who sought to “reestablish slavery by force.” The South, he writes, “opposed Negro education, opposed land and capital for Negroes, and violently and bitterly opposed any political power. It fought every conception inch by inch: no real emancipation, limited civil rights, no Negro schools, no votes for Negroes.”Between these two sides lay Northern industry and capital. It wanted profits and it would join whichever force enabled it to expand its power and reach. Initially, this meant abolition-democracy, as Northern industry feared the return of a South that might threaten its political and economic dominance. It “swung inevitably toward democracy” rather than allow the “continuation of Southern oligarchy,” Du Bois writes.It’s here that we see the contradiction inherent in the alliance between Northern industry and abolition-democracy. The machinery of democracy in the South “put such power in the hands of Southern labor that, with intelligent and unselfish leadership and a clarifying ideal, it could have rebuilt the economic foundations of Southern society, confiscated and redistributed wealth, and built a real democracy of industry for the masses of men.”This — the extent to which democracy in the South threatened to undermine the imperatives of capital — was simply too much for Northern industry to bear. And so it turned against the abolition-democracy, already faltering as it was in the face of Southern reaction. “Brute force was allowed to use its unchecked power,” Du Bois writes, “to destroy the possibility of democracy in the South, and thereby make the transition from democracy to plutocracy all the easier and more inevitable.”In the end, “it was not race and culture calling out of the South in 1876; it was property and privilege, shrieking to its kind, and privilege and property heard and recognized the voice of its own.” What killed Reconstruction — beyond the ideological limitations of its champions and the vehemence of its opponents — was a “counterrevolution of property,” North and South.Why is this still a useful framework for understanding the United States, close to a century after Du Bois conceived and developed this argument? As a concept, abolition-democracy captures something vital and important: that democratic life cannot flourish as long as it is bound by and shaped around hierarchies of status. The fight for political equality cannot be separated from the fight for equality more broadly.In other words, the reason I keep coming back to “Black Reconstruction” is that Du Bois’s mode of analysis can help us (or, at least, me) look past so much of the ephemera of our politics to focus on what matters most: the roles of power, privilege and, most important, capital in shaping our political order and structuring our conflicts with one another.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More