On Monday, the January 6 Select Committee revealed that former president of the United States Donald J. Trump may have committed wire and mail fraud, to the tune of $250 million. The committee alleged that Trump and his campaign sent out fundraising letters asking people to donate to the “Official Election Defense Fund.” But, as the committee’s chief investigative counsel, Amanda Wick, said in video testimony, “no such fund existed.” The money Trump raised was instead funneled to a Trump leadership PAC and other Trump-adjacent organizations, the committee claimed.
Mail fraud and wire fraud are both federal crimes, punishable by $1,000,000 fines or imprisonment for up to 30 years. A crime is considered to have been committed when a person knowingly devises a scheme to “obtain money” through “false or fraudulent pretenses, representations, or promises.” Telling people to send you money for a thing that does not exist is a textbook violation of the statute.
The January 6 committee subpoenaed documents from Salesforce, a giant vendor that the Trump campaign used to help manage its fundraising appeals, way back in February. Trump and the Republican National Committee have been preventing Salesforce from complying with the subpoena, and I guess we now know why. Those records could show how these fundraising letters were generated and who signed off on the final copy.
What Trump and his team are alleged to have done is a crime. It’s not a violation of “norms” or a questionable use of presidential power or an obstruction of an investigation. It’s theft. We have actual laws that explicitly prohibit this behavior. If I told people to send me money for “Elie’s Newsletter,” and that newsletter did not exist, and instead I repurposed the money for “Elie’s Vacation Defense Fund,” I would be forced to go to jail. If I enriched myself by $250 million that way, I’d be forced to go to Moscow.
And yet I have not seen headlines that read “Trump Campaign Committed Wire Fraud” or “Trump Implicated In Quarter Billion Dollar Scheme To Defraud Supporters” or “Merrick Garland, Awake, Working on Indictments for Trump and Cronies.” The January 6 committee revealed evidence that is far more damning than anything anybody had on Richard Nixon; you’d pretty much have to go back to the public trial of Boss William Tweed to find an equally basic scheme of public corruption and graft from a political leader. But the public and the media are so inured to Trump’s committing crimes and getting away with them that the assumption seems to be that he will not be held accountable for this even more obvious crime.
Instead of demanding accountability, most of the discussion since the committee’s revelation has focused on how Trump’s going to get away with it. The most prominent argument I’ve seen is that wire fraud is complicated. “Experts” have emerged out of the woodwork to tell people that fraud investigations are fact-intensive affairs, and point out that the government will have to prove that Trump both knew the Election Defense Fund did not exist and that he knew his campaign was sending out letters and e-mails touting it.
This is true: Intent to commit a crime is often a factor in proving the crime took place. If I, say, set fire to my house for the insurance money, the government would have to prove that I knew things like “fire is bad” and “drenching my house in gasoline and throwing matches at it” would be likely to induce a conflagration. I might argue that I was a drooling idiot who didn’t know these things, but a fact-intensive presentation by the government could well convince a jury of my peers that I was lying.
Indeed, society has come up with an entire profession to address the age-old problem of proving criminals committed crime. We call these people “prosecutors,” and we pay for them with our own tax dollars. Poor defendants, and black defendants, and especially poor black defendants know all too well that prosecutors will use every tool at their disposal, fair and unfair, to charge people with crimes. But, contrary to what some of them believe, prosecutors are not hired simply to bully those who cannot fight back. They are supposed to be there to punish criminals, even when the criminals are rich and powerful, even when their crimes are hard to prove.
Which brings us to Attorney General Merrick Garland, aka the nation’s top prosecutor. The January 6 committee lacks the authority to charge Trump and his campaign for crimes, but Garland has precisely that authority. The responsibility of enforcing the federal laws Trump appears to have violated falls on him. His job is not to be a judge or a Breitbart columnist and make the best possible case for Trump’s innocence; his job is to assess whether fraud occurred, and if so, prosecute the wrongdoers.
I have been tough on Garland in these pages, but I find it hard to believe that he first heard about Trump’s apparent wire and mail fraud from the January 6 committee on Monday. I simply must believe that the DOJ’s own 18-month investigation into the attack on the Capitol has already revealed indications that a fraud as basic as “give me money for a thing that does not exist” took place. The fraud here was neither subtle nor complicated. It would be an unconscionable display of incompetence for Garland and the DOJ to not know about this, so I choose to assume that the investigation into these allegations is already well under way, and we can expect charges soon.
I also choose to assume that Garland was just waiting for the public hearing before putting the full might of the Justice Department behind getting those records from Salesforce. If any communication from the campaign to Salesforce indicates that Trump “approved” the final copy, that’s the ballgame. I just refuse to live in a head space where the attorney general isn’t already prepared to seek these records.
But even if I’m wrong and Garland really did learn about the scheme from television like the rest of us, teeing up the investigations and subpoenas that lead to charges should happen comfortably before 2024. Congress has already interviewed many of the key witnesses, and it would appear Representative Zoe Lofgren has asked many of the right questions. Bringing in Trump and his former chief of staff Mark Meadows for a deposition to lock them into a story about whether they knew what their own campaign was selling is the next step to be taken—and if they refuse to sit for those depositions, they can be thrown in jail for contempt.
So either Garland is about to charge Trump for mail and wire fraud, and to subpoena Trump to explain his apparent mail and wire fraud, or he should be fired for failing to do either. The only unacceptable option is “Merrick Garland continues to draw a public paycheck while ignoring $250 million of alleged mail and wire fraud because it’s too hard.”
In the event that Garland does turn out to be unwilling to do his job, there’s still reason to believe that Trump will be held accountable. That’s because fraud is a crime that is also prosecutable under state law. Remember, the committee is essentially accusing Trump and his campaign of theft via fraud, and thievery (or grand larceny) is a crime everywhere.
New York Attorney General Tish James was watching the hearings. She tweeted: “The new details revealed tonight related to January 6 are disturbing. It’s my duty to investigate allegations of fraud or potential misconduct in New York. This incident is no exception.”
Every single state attorney general in the country now has cause to investigate Trump and his campaign for fraud. That includes Republican attorneys general in Trump-leaning states. I know they won’t, but it’s worth remembering that Trump’s apparent crime was to fleece Republican voters. He did this to his own people. If they weren’t so addled by a steady diet of Fox News and white supremacy, they might even be angry that their dear leader may have fraudulently induced them to donate money to a thing that did not exist. Convincing people who have been duped that they were the simpletons is always difficult, but if any one of these Republican AGs cared more about protecting the people in their states than running for governor one day, they’d sound a lot more like Tish James and a lot less like Rudy Giuliani.
Trump shouldn’t get away with this. If he does, it won’t be because Trump is the Houdini of escaping accountability. It will be because American law enforcement has failed.