I had been waiting for Andy McCarthy to weigh on Donald Trump’s announcement that he is about to be indicted again by special counsel Jack Smith for something or another. Now he has (behind NRO’s pay wall, unfortunately), and, as usual, he shines light into murky corners. In particular, he suggests a possible basis for the indictment that, unlike charges stemming from the ex-President’s alleged role in the Capitol rioting, makes sense and raises no Constitutional issues.
It is said that the Trump campaign raised tens of millions of dollars on the representations that the money would go to a legal fund that would fight the election fraud by which Trump claimed the election was being stolen. Yet, at least according to the January 6 committee (see, e.g., final report at p. 770 & ff.), there was no such fund and at least some of the money was diverted to other purposes (such as, the New York Times reports, more than $200,000 spent at Trump hotel properties).
If Smith can prove that, then he is in the ballpark of traditional fraud.
“In the ballpark” rather understates the case. If this accusation is true, Mr. Trump’s conduct is unconscionable, a betrayal of his most loyal supporters that was evidently motivated by simple greed. Exposing it and sending the perpetrator to prison would be an act of justice and would also, as Mr. McCarthy goes on to note, have other beneficial effects:
To be sure, if [Smith] has decided to go down that road, the next Republican Justice Department is going to be spending a great deal of time scrutinizing what Democrats and their allied outfits such as Black Lives Matter actually do with the goo-gobs of money they raise for this or that stated cause. But if past is prologue, progressives and other anti-Trumpers do not concern themselves with the unintended consequences. What matters is nailing Trump – especially if you can get Republicans to nominate him in the process.
It’s possible, though, that the special counsel will shy away from taking this clear and direct course and will instead rely on dubious theories of “obstruction of Congress” and “fraud on the government” that have fared poorly in the courts on other occasions. Alleging financial fraud has two potential drawbacks from the Democratic Party’s point of view:
First, the January 6th committee’s claims about Trump’s conduct may be false. Nothing about that body (to call it a “kangaroo court” insults marsupials) inspires confidence in the accuracy of its findings. If Trump really did establish a legal fund and pursue bona fide efforts to expose election fraud, not even the most Javert-like prosecutor in the most favorable of venues will have much chance of securing a conviction.
Second and more important, supposing that the fraud charges are true and their truth becomes manifest, a key element of the Democratic strategy for the 2024 Presidential electinn, namely, ensuring that Donald Trump is the Republican Party’s nominee, is likely to fail. It’s hard to believe that even the most fervent forever-Trumper will retain his admiration for a grifter who tried to cheat him out of his money.
Perhaps the special counsel can maneuver around these pitfalls. Until the trial begins, the existence vel non of the alleged fraud will be uncertain. The accusation can be kept in front of the public, and Trump zealots can continue to portray their hero as a martyr to the Deep State.
What the health of our country’s politics most demands (and, alas, is not too likely to get) is not the imposition of criminal liability but an immediate presentation of the evidence of fraud. If Donald Trump is demonstrably a liar and thief, it is more important that the public know that as soon as possible, so that he can be exiled from political life, than that he undergo legal punishment. The same is true, of course, of the Democratic Party’s prospective 2024 candidate. Both parties’ slates need thorough disinfection.