Krazy-Eyez Killa Jack Smith and his superiors have elicited an indictment of President Trump that leads with a charge of conspiracy to defraud the United States. Andrew McCarthy addresses the Supreme Court case law that belies this charge in “Anti-indictment and pro editorial” (supporting NR’s editorial “This Trump indictment shouldn’t stand,” both behind NRO’s paywall).
Not having followed Supreme Court cases beside the ones we have discussed on Power Line, I had missed this:
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[.]”
Discussing the relevant case law, McCarthy writes:
[O]n 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.
He comments: “Suffice it to say that Congress has not yet enacted newly expanded fraud statutes following these admonitions from the Court.” In short, “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.” He’s specifically referring to Killa, but the same applies to Attorney General Merrick Garland and Shufflin’ Joe Biden.
As for the other charges:
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.
If the charges don’t fit…