IN BIDEN JUSTICE DEPARTMENT, DONALD TRUMP, LAW
There must be a good answer to the challenge raised by Kim Strassel in her weekly Wall Street Journal column this past Friday. Addressing the indictment of President Trump elicited by Krazy-Eyez Killa Jack Smith, Strassel seeks to understand how far the charge of conspiring to defraud the government — the charge brought under 18 U.S.C. § 371 — can be extended (link omitted):
A politician can lie to the public, Mr. Smith concedes. Yet if that politician is advised by others that his comments are untruthful and nonetheless uses them to justify acts that undermine government “function,” he is guilty of a conspiracy to defraud the country…
And why limit the theory to election claims? In 2014 the justices held unanimously that President Barack Obama had violated the Constitution by decreeing that the Senate was in recess so that he could install several appointees without confirmation. It was an outrageous move, one that Mr. Obama’s legal counselors certainly warned was a loser, yet the White House vocally insisted the president had total “constitutional authority” to do it. Under Mr. Smith’s standard, that was a lie that Mr. Obama used to defraud the public by jerry-rigging the function of a labor board with illegal appointments.
What’s the betting someone told President Biden he didn’t have the power to erase $430 billion in student loan debt. Oh, wait! That’s right. He told himself. “I don’t think I have the authority to do it by signing with a pen,” he said in 2021. The House speaker advised him it was illegal: “People think that the president of the United States has the power for debt forgiveness. He does not,” Nancy Pelosi said. Yet Mr. Biden later adopted the lie that he did, and took action to defraud taxpayers by obstructing the federal function of loan processing—until the Supreme Court made him stop.
The numerous enthusiasts of the indictment at Lawfare have expounded on section 371 here. “From a legal perspective,” they opine, “the § 371 charge is not particularly complicated given the breadth of the statute and how commonly it’s used.” As I say, I’m sure there is a good answer to the challenge Strassel poses, but I can’t think of it offhand.
James Freeman reminded me of Strassel’s column and of this passage in particular in “If the Justice Department Is Going to Prosecute Political ‘Frauds’…”
https://www.powerlineblog.com/archives/2023/08/strassel-stumps-me.php
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