Opinion: What history tells us about the laws Trump is charged with breaking

Editor’s Note: John Avlon is a CNN senior political analyst and anchor. He is the author of “Lincoln and the Fight for Peace.” The views expressed in this commentary are his own. View more opinion at CNN.

There’s a tendency to view former President Donald Trump’s latest damning indictment through a political horserace prism — will it help or hurt him in the 2024 Republican presidential primary?

This is a mistake. It distracts from the gravity of the charges when seen with any sense of historic perspective. Trump is charged with a crime that would have been the founders’ worst nightmare: an attempt by a sitting president to overturn an election on the basis of a self-serving lie, resulting in an attack on our Capitol by a deluded mob of followers. (The former president denies any wrongdoing.)

That’s why it’s helpful to understand the history behind the headlines — particularly as it relates to the specific crimes Trump is accused of committing.

On the surface, these charges deliberately sidestep more obvious violations, like seditious conspiracy, which was successfully used against members of the far-right groups Oath-Keepers and Proud Boys.

Two of the four charges carry forward the most ubiquitous charge post January 6 — conspiracy to obstruct an official proceeding — an anodyne term that carries all the moral weight of a manila envelope. It is the minimum explanation of what occurred in the attack on the Capitol.

But Trump has been charged with two more unusual violations, both heavy with history.

“Conspiracy to Defraud the United States” does not sound on the surface like it has to do with an attempt to overturn an election. Historically, this charge had to do with cheating the US government out of money. But as former President and Chief Justice of the Supreme Court William Howard Taft explained in a landmark 1924 opinion, the full meaning of the statute almost anticipates our current surreal scenario:  “It also means to interfere with or obstruct one of its [the country’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”

Trump’s election lies certainly appear calculated to obstruct a lawful government function — a presidential election — by deceit and means that were dishonest. The indictment methodically lays out the case that Trump knew he was lying because he was told time and again that the election had been lost on legitimate grounds by staffers, advisers and members of his Cabinet. The lies were his desperate attempt to hold on to power, understood even by most cronies to be “conspiracy shit beamed down from the mothership” — in the indelible words of Trump’s 2020 campaign adviser Jason Miller.

The Trump true believers were — and are still — the ones being played for fools. But Trump’s lies impacted Americans’ faith in the integrity of our elections. That’s defrauding the United States.

The “Conspiracy Against Rights” charge might raise even more eyebrows. Understanding the history of this law —Section 241 of Title 18 of the US Code — helps clear up the mystery.

It dates to the first Enforcement Act passed by Congress under former President Ulysses S. Grant in 1870 to push back efforts by the Ku Klux Klan during Reconstruction to deprive Black citizens from exercising their full constitutional rights — especially the 15th Amendment, which granted them the right to vote.

A core part of the attempt to roll back those rights in the South was through voter intimidation, voter suppression and election subversion. Over time, the law came to be applied to any attempt that would disrupt people’s right to vote — not just casting a ballot, but having the ballot be counted fairly.

Trump’s attempts to overturn the election, including the fake electors scheme, had the intent of disenfranchising voters in seven swing states. Attempting to overturn election results has the fundamental effect of denying the right of individuals to have their votes counted fairly.

The historic context of these laws helps us appreciate the gravity of the crime, which Trump allegedly attempted to perpetrate on our democracy. While we’ve experienced nothing like this civic stress test to date, the fact that key charges relate to alleged dishonest attempts to obstruct a core government function — or date back to violent attempts to suppress voting rights in the wake of the Civil War — should be a wake-up call. We are all custodians of a precious heritage — a republic, if we can keep it.

The cautionary tale of this case is what happens when ego and partisan self-interest outweigh the deeper principles of our democracy. It is a danger that will not end without accountability.

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