Anti-Indictment and Pro-Editorial

I’m sure you’ll be shocked to hear that I support our editorial. I thus respectfully disagree with Noah. I don’t have a quarrel with his assessment about how indefensible Donald Trump’s conduct was. But I do strongly disagree with his defense of the conspiracy to defraud the United States charge that is the framework for the other charges in the indictment. That will take a bit of explaining, so I’ll try to keep my other observations (at the end) brief.

Less than three months ago, Justice Clarence Thomas wrote for a unanimous Supreme Court in Ciminelli v. United States that “the federal fraud statutes criminalize only schemes to deprive people of traditional property interests,” citing its 2000 decision in Cleveland v. United States. Justice Thomas elaborated that this means (my italics):

scheme[s] or artifice[s] to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” §1343 [the wire fraud statute]. Although the statute is phrased in the disjunctive, we have consistently understood the “money or property” requirement to limit the “scheme or artifice to defraud” element because the “common understanding” of the words “to defraud” when the statute was enacted referred “to wronging one in his property rights.” [Citing Cleveland.] This understanding reflects not only the original meaning of the text, but also that the fraud statutes do not vest a general power in “the Federal Government . . . to enforce (its view of) integrity in broad swaths of state and local policymaking.” [Citing Kelly v. United States (2020), the New Jersey “Bridgegate” case.]  Instead, these statutes “protec[t] property rights only.” [Citing Cleveland]. Accordingly, the Government must prove not only that wire fraud defendants “engaged in deception,” but also that money or property was “an object of their fraud.” [Citing Kelly].

In Ciminelli and another unanimous ruling issued the same day, Percoco v. United States, the Court observed that in decades prior to the 1980s, courts and prosecutors had endeavored to extend the concept of fraud beyond schemes to bilk victims out of money or tangible property. One such theory purported to expand fraud to reach schemes to deprive people out of their so-called right to honest services. In its 1987 decision in McNally v. United States, the Court rejected the honest-services theory and reaffirmed that, to be actionable, fraud had to be a deceptive scheme to obtain money or tangible property.

This 7-2 majority decision in McNally caused consternation for Justice John Paul Stevens, who was joined in dissent by Justice Sandra Day O’Connor. Justice Stevens relied on the very precedents Noah invokes, Hammerschmidt v. United States (1924) and Haas v. Henkel (1910), to argue that the majority’s decision could not be squared with their conclusion that fraud could also mean “to interfere with or obstruct one of [the nation’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Stevens was right: There is no way to reconcile McNally and Hammerschmidt/Henkel; but the problem for Stevens is he was in the minority — McNally is the law. And, as Stevens conceded, there is no principled reason to construe the concept of fraud differently based on whether the victim is the United States or a different party.

The McNally case involved a self-dealing scam by government insiders and their cronies. Though legally correct, the ruling was unpopular because it made political corruption harder to prosecute. Congress thus attempted to reverse it. But in so doing, as Justice Antonin Scalia later related in Skilling v. United States (2010), lawmakers engaged in some telling omissions.

In the decades preceding McNally, courts and prosecutors had egged each other on to create all kinds of crimes that Congress had never codified by distorting the common understanding of fraud. Yet, when Congress decided to react to McNally, it had only revived — or, at least, endeavored to revive — one of these, the right to honest services. Implicitly then, given the clarity of the Court’s ruling in McNally and Congress’s decision to codify only honest-services fraud, these other excrescences were invalidated. To be more specific: Especially in light of Justice Stevens’s reliance in dissent on the Hammerschmidt/Henkel strand of fraud-on-the-U.S. jurisprudence, Congress could easily have redefined fraud, or even written a new statute, to make it a crime “to interfere with or obstruct one of [the nation’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” But Congress did not do that.

And what they did do, in trying to resuscitate honest-services fraud, was constitutionally infirm. As the Court concluded in Skilling, the concept of honest-services fraud as enacted — with no explanation of whom it applied to (only government officials or others?) or of where the fiduciary duty producing an honest-services obligation supposedly derived — was hopelessly vague. That is to say, to quote Justice Scalia again, it failed the basic constitutional requirement pertaining to penal laws: “A criminal statute must clearly define the conduct it proscribes”; it must “provide a person of ordinary intelligence fair notice of what is prohibited” because laws without standards invite “seriously discriminatory enforcement” (I daresay what one might even call a “two-tiered justice system”).

Because the honest-services concept did not pass muster, the Skilling Court had two choices: It could invalidate the law in toto (consistent with the originalist position that it is not the justices’ job to rewrite statutes), or it could give the law a narrowing construction. A majority of the Court chose the latter. Consequently, Congress’s honest-services statute now applies only to bribery and kickback schemes.

This divide continues on the Court (as I explained in my May column, and as the Court elucidated in the Percoco majority and concurring opinions). Some justices favor limiting constructions, others would reject wayward fraud statutes in their entirety. But on two propositions, the Court is in unanimous agreement: First, fraud in federal criminal law is confined to deceptive schemes to obtain money or tangible property, and to bribery and kickbacks; second, the concept of fraud could be expanded consistent with the Constitution, but (a) that could only be done by Congress, not by creative prosecutors and judges, and (b) if it tries such an expansion, Congress must articulate the new law with sufficient clarity that the average person can reasonably be expected to understand the scope of what is prohibited.

Suffice it to say that Congress has not yet enacted newly expanded fraud statutes following these admonitions from the Court.

As I’ve made clear, I have no problem with the government’s prosecuting Donald Trump, per se. What’s more, I do not believe the status of either former president or current candidate confers immunity from prosecution.

That said, however, prosecutors exercise discretion not to bring charges for many legitimate reasons that are of far less consequence than the public interest in avoiding unnecessary intrusion by the incumbent administration’s law-enforcement authority into electoral politics — particularly when the incumbent president is running against the target of law enforcement. To my mind, former attorney general Bill Barr was right to posit that law enforcement should steer clear of electoral politics in the absence of a meat-and-potatoes crime — i.e., a clear, serious criminal offense that is supported by convincing evidence. Special counsel Jack Smith’s Mar-a-Lago documents indictment meets that test. His new election-interference indictment does not.

Indeed, it is worse than that. The election-interference indictment, obviously, is about elections. Smith is setting standards to enable the Justice Department to put its thumb on the scale of all future political campaigns — to the point that he is not only filing charges but expects to force (as he put it yesterday) speedy trials that will occur in the 2024 campaign stretch run. Yet, he is indicting into the teeth of fresh Supreme Court precedents that cannot be squared with the cases Noah cites — cases that McNally gutted (to the McNally dissent’s express chagrin), that Congress did not revive by statute when it tried to re-erect the honest-services doctrine, and that are even more dubious following the Court’s reaffirmation of the common understanding of fraud as a financial crime.

With the Supreme Court sending those signals, a responsible prosecutor would avoid indicting on an extravagant, nonfinancial theory of fraud in any case. To indict on such a theory in a manner that quite willfully intrudes into a presidential election is worse than irresponsible. Given how FBI and DOJ interference in presidential elections has gone since 2016, I would have thought we’d want less of it going forward, not to normalize it.

And as I explained yet again earlier this week, I don’t want Trump to be the Republican nominee because I think he’d cause Biden to be reelected and the Democrats to take both chambers of Congress. But I don’t believe any presidential candidate should be harpooned over tenuous legal theories.

Besides the infirmity of the fraud charge, Smith here brings obstruction charges that largely hinge on criminalizing a cockamamie legal theory, and a civil-rights charge that is night-and-day removed from the purpose for which the post–Civil War Congress enacted the civil-rights statute at issue — namely, Ku Klux Klan violence against black Americans seeking to exercise their right to vote.

You can say what Trump committed were crimes. I certainly thought they were high crimes and misdemeanors for which he should have been impeached and disqualified (removed too, but he was out of office by the time of the Senate trial). But there are many crimes that prosecutors do not charge because doing so could interfere with higher public interests. I believe Smith should have refrained in this instance.