The National Review Is Still Lying To You About The Fraud Charge Against Trump

Yes It Vexes Me. This Is Just How God Made Me.

There are two ways to be a public legal commentator. One is to describe, to the best of your ability, what you believe the state of the law is, how and where courts might agree or disagree with you, and how your view of what the law should be differs from how courts currently interpret it. That’s what I aspire to. I fall short all the time, I’m sure.

The other way to be a public legal commenter is to be an advocate pretending to be a fair reporter — to take what you think the law should be based on your sympathies or politics and present it deceitfully as what the law inarguably is. I’ve often criticized Alan Dershowitz for doing this — for instance, for telling the public “you can’t convict someone of lying to the federal government if the federal government knew they were lying,” even though every modern court to consider that argument has rejected it.

Andrew C. McCarthy and the Editors of the National Review are choosing the Alan Dershowitz path of legal commentary. Well, at least it’s an ethos.

Last Week: The National Review Misrepresented Federal Fraud Law

Last week I explained how the National Review was flat-out lying about the state of the law on the latest charges against Donald Trump. Among other things, the Editors claimed that the Supreme Court has recently ruled that “fraud in federal criminal law is a scheme to swindle victims out of money or tangible property” and that therefore the Special Counsel is wrong to charge Donald Trump with violation of 18 U.S.C. section 371. I pointed out that this was a lie — the cases National Review is talking about recent cases interpreting the mail and wire fraud statutes, both of which have specific language in the statute requiring a scheme to take money and property. By contrast, for the last hundred years courts from the Supreme Court down have repeatedly ruled that Section 371 makes it a crime to defraud the United States in a way to interfere with its operations, even without money and property as a goal.

This Week: The National Review Misrepresents Federal Fraud Law, But In New And Different Ways

The National Review, through Andrew C. McCarthy, has doubled down and lied some more. Would you like to hear how? Of course you would.

Naturally Mr. McCarthy did not deign to respond to me. But he did respond to National Review writer Noah Rothman, who honorably (and much more politely than I) told the Editors they were wrong. His response is more dishonesty — more advocacy thinly disguised as neutral analysis — not less.

First, Mr. McCarthy again relies on this year’s decision in Ciminelli v. United States, quoting it for the proposition that “the federal fraud statutes criminalize only schemes to deprive people of traditional property interests.” But Ciminelli is about federal mail and wire fraud statutes, both of which explicitly refer to schemes to defraud people of money or property. Ciminelli isn’t talking about Section 371 or any other fraud statute. The case doesn’t even mention Section 371. Mr. McCarthy wants you to believe — even though the proposition is ridiculous on its face — that Justice Clarence Thomas was making a broad, sweeping ruling about every federal statute with “fraud” in it, even though only one statute was in front of the Court. He wasn’t. Mr. McCarthy knows he wasn’t.

Second, Mr. McCarthy cites McNally v. United States, the 1987 case in which the Supreme Court said that the wire fraud statute covers schemes to defraud people of money or property, not an intangible “right to honest services,” a long-time theory popular in corruption prosecutions. (Congress promptly passed a law saying you could prosecute people for depriving the public of the “right of honest services.”) Mr. McCarthy points out that Justice Stevens, in dissent, cited cases about Section 371 — the same ones Mr. Rothman and I cited — for the proposition that fraud can be broader than depriving people of money or property. But they were the dissent! They lost! Mr. McCarthy tells his audience, shows that the Supreme Court has rejected a broad theory of fraud under Section 371.

The problem with this argument is that it deceitfully omits a key part of the majority opinion in McNally. In a footnote — which, I regret, I must remind you to read — Justice White explains that Section 371 permits broader theories of fraud because it services different interests, and endorses the broader reading of Section 371. The whole footnote explicitly contradicts McCarthy’s argument but here is the key part:

Hammerschmidt concerned the scope of the predecessor of 18 U.S.C. § 371, which makes criminal any conspiracy "to defraud the United States, or any agency thereof in any manner or for any purpose." Hammerschmidt indicates, in regard to that statute, that while

"[t]o conspire to defraud the United States means primarily to cheat the Government out of property or money, . . . it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."

265 U.S. at 265 U. S. 188. Other cases have held that § 371 reaches conspiracies other than those directed at property interests. See, e.g., Haas v. Henkel, 216 U. S. 462, 216 U. S. 480 (1910) (predecessor of § 371 reaches conspiracy to defraud the Government by bribing a Government official to make an advance disclosure of a cotton crop report); Glasser v. United States, 315 U. S. 60 (1942) (predecessor of § 371 reaches conspiracy to defraud the United States by bribing a United States attorney). However, we believe that this broad construction of § 371 is based on a consideration not applicable to the mail fraud statute.

. . .

Section 371 is a statute aimed at protecting the Federal Government alone; however, the mail fraud statute, as we have indicated, had its origin in the desire to protect individual property rights, and any benefit which the Government derives from the statute must be limited to the Government's interests as property holder.

Put another way, in McNally the Supreme Court expressly said that Section 371 has a broader theory of fraud because it protects different interests than the mail fraud statute. Mr. McCarthy takes McNally and says that it shows that fraud is defined the same under the mail fraud statute and Section 371. That’s lying.

Third, McCarthy goes on to misrepresent yet another Supreme Court case, Skilling v. United States, in which the Court struck down the conviction of infamous Enron exec Jeffrey Skilling. Once again, Mr. McCarthy suggests that Skilling applies to Section 371; once again, the case doesn’t mention that statute.

Fourth, let me ask you a question. Do you think that it’s relevant that courts have specifically rejected the very argument you’re making? I do. I do think that thing. So you should know — as Mr. McCarthy knows, or should know if he honestly researched his point — that the only federal appellate court to consider his argument rejected it entirely. The case is United States v. Morosco, a 2016 First Circuit case. Mr. Morosco was convicted of conspiring to defraud the United States under Section 371. He made Mr. McCarthy’s argument. Pay attention to the First Circuit’s less-than-impressed tone completely rejecting it, for the same reasons Noah Rothman and I have outlined:

Start with Fitzpatrick's and Morosco's most loudly trumpeted point. As they tell it, section 371's “defraud” clause only bans conspiracies to deprive the government of property and money by dishonest schemes, a reading (they add) that jibes with the common-law understanding of “defraud.” And such a reading would help them (they continue) because they never scammed the government out of property or money. Unhappily for them, years' worth of Supreme Court precedent holds that section 371 “is not confined to fraud as that term has been defined in the common law,” see Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) ; that defrauding the government under section 371 means obstructing the operation of any government agency by any “deceit, craft or trickery, or at least by means that are dishonest,” see Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 68 L.Ed. 968 (1924) ; and that the conspiracies need not aim to deprive the government of property or money, see id., because the act is written “broad enough ... to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any” government “department,” see Haas v. Henkel, 216 U.S. 462, 479, 30 S.Ct. 249, 54 L.Ed. 569 (1910). Ever faithful to high-Court holding, our caselaw rejects the idea that section 371 only bars conspiracies to defraud the government out of property or money. See United States v. Barker Steel Co., 985 F.2d 1123, 1136 (1st Cir.1993) (relying on Supreme–Court cases interpreting section 371 and its basically “similar predecessors”); Curley v. United States, 130 F. 1, 6–10 (1st Cir.1904) (explaining that “defraud” in section 371's forerunner has a broader meaning than the common-law definition—and justifiably so because the statute's aim is to protect the government, and deceit can impair the workings of government even if the conspiracy does not take the government's property or money). Obviously then, this facet of Fitzpatrick's and Morosco's vagueness thesis goes nowhere.

Dude, I think that court just said you’re full of shit.

But wait, Mr. McCarthy might say. What about the new Supreme Court cases I talked about? They undermine those precedents! (Of course, for the reasons set forth above, they don’t, but let the man make his arguments.) Sorry — no joy, says the First Circuit, again with a dismissive tone.

In what is basically a Hail Mary pass, Morosco argues that two fairly recent cases signal a new willingness on the high Court's part to entertain vagueness challenges—a willingness (the argument goes) that we must emulate. The two cases are (1) Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), limiting “honest services” fraud so that it only applies to defendants involved in either bribery or kickback schemes, and (2) Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), declaring the Armed Career Criminal Act's residual clause—a provision dealing with crimes that “involve[ ] conduct that presents a serious potential risk of physical injury”—too vague to be enforced. His pass falls incomplete, however, and for a simple reason. Neither Skilling nor Johnson overruled the Haas/Hammerschmidt line of section–371 cases. And because overruling Supreme Court precedent is the Court's job, not ours, we must follow Haas/Hammerschmidt, etc. until the Court specifically tells us not to—something that is true even if these long-on-the-books cases are in tension with Skilling and Johnson (and we do not suggest that they are).

In other words, the First Circuit said it’s up to the Supreme Court if it wants to adopt McCarthy’s arguments; they are bound by prior Supreme Court precedent.

Defendant Morosco had an excuse to reach so far; he was in federal prison. Mr. McCarthy is in Basking Ridge, New Jersey.

Be An Advocate, Or Be A Legal Commentator

So. Could the Supreme Court eventually overturn a century of its own law and find that Section 371 is actually restricted to schemes to defraud the government of money or property? Sure. It could. But saying “this is obviously the law and the prosecutor is breaking it” is not the same as saying “I think this should be the law and I think the Supreme Court might eventually agree.”

Here’s how Mr. McCarthy could make his point honestly: “Jack Smith has charged Donald Trump with conspiring to defraud the United States in violation of 18 U.S.C. section 371. I think that charge is unsound because Smith doesn’t claim, nor could he, that Trump was trying to defraud the government out of money or property. Though the Supreme Court and other courts historically said that’s not a requirement under Section 371, I think that rule is undermined by more recent Supreme Court cases interpreting the mail and wire fraud statutes. No court has agreed with me — indeed, the First Circuit rejected my argument! — but I think my argument is the better one and the Supreme Court should eventually adopt it. Let me explain why.”

That would be honesty to National Review’s audience, instead of being an advocate with pretenses to honest legal commentary.

But that’s not what Andrew C. McCarthy said. Why not? He’s not pro-Trump. But he’s anti-anti-Trump. He’s anti-Biden, anti-the-Department-of-Justice-pursuing-Republicans, anti-”deep state”) (well sort of), anti any application of the rule of law that might benefit Democrats. Plus, he’s very pro- the National Review being kept alive and relevant. The National Review is under siege from a frothingly crazy pro-Trump right, and if it’s not entirely willing to join the crowd, it’s certainly willing to indulge in deceitful critiques of anyone criticizing Trump.

Once again — it’s an ethos, I guess.