Jack Smith Appears To Be Getting Creative in Push To Charge Trump, Undeterred by First Amendment

The report that the special counsel, Jack Smith, is contemplating handing up charges of wire fraud against President Trump suggests that the Manhattan district attorney is not the only prosecutor pursuing exotic charges against the former president. Instead, creative charging appears to be the name of the game against the man who could be the highest-profile defendant America has ever seen, as the law’s long arm stretches to reach the country’s 45th president. As District Attorney Alvin Bragg works on transforming misdemeanors into felonies and the Fulton County district attorney, Fani Willis, considers using anti-racketeering law meant for mobsters against Mr. Trump — having already deployed it against teachers and rappers — Mr. Smith, who once tried war crimes, is getting in on the action. Mr. Smith, who has been tasked by Attorney General Garland with investigating both the trove of documents at Mar-a-Lago and Mr. Trump’s possible culpability for the events of January 6, 2021, is according to the Washington Post investigating whether Mr. Trump used “false claims about voter fraud to raise money.” Subpoenas issued to alumni of Mr. Trump’s presidential campaign appear to show that Mr. Smith is zeroing in on the period between the election of November 2020 and the end of Mr. Trump’s time in office in January 2021. Mr. Trump raised more than $200 million during that span.The federal wire fraud statute makes it illegal to make false representations over email for fiduciary gain. It is rooted in mail fraud laws, but according to the Department of Justice requires “the use of an interstate telephone call or electronic communication made in furtherance of the scheme.” To be convicted, a defendant must intend to defraud, not merely end up doing so. The question, then, is whether Mr. Trump’s claims of a stolen election constituted a “scheme or artifice” that endeavored by “means of false or fraudulent pretenses, representations, or promises” to “obtain money or property.” In the event of a conviction, the statute carries a maximum 20-year prison sentence.Mr. Smith could, though, run into a significant roadblock in his pursuit of Mr. Trump; the First Amendment. A warning can be found in the Alien and Sedition Acts of 1798, which banned, among other things, false, “scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.”Those notorious acts, though, were repealed before they faced judicial scrutiny. More than a century and a half later, the Supreme Court held, in New York Times Co. v. Sullivan, “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”That case also prevented a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false.”The issue here, though — unlike Governor Palin’s suit against the Times, for which the riders of the United States Second Appeals Circuit will eventually have to bestir themselves — is not things said about Mr. Trump, but the claims he himself has made about the validity of the 2020 election.Mr. Trump used those claims to raise funds, which means they fell under the category of a solicitation of money, albeit for politics not for commerce. While commercial speech was historically not protected by the First Amendment, the 1970’s saw a sea change. In 1975, Justice Harry Blackmun ordained, “The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment.” In a post Monday on Truth Social, Mr. Trump appeared undeterred in his efforts to cast doubt on the last presidential election. He addressed the chief executive officer of News Corporation, Rupert Murdoch, in respect of another defamation case, this one being pushed by Dominion Voting Systems, saying, “THE ELECTION OF 2020 WAS RIGGED AND STOLLEN…YOU KNOW IT, & SO DOES EVERYONE ELSE.”

Jack Smith Appears To Be Getting Creative in Push To Charge Trump, Undeterred by First Amendment

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