1/ With due respect to National Review Editors - who've been good and strong on MAL indictment etc - this Editorial on #TrumpIndictment is very flawed.
Their thesis is on legal basis of the indictment.
@NRO gets the law wrong and the wrong law.
<thread>
nationalreview.com/2023/08/this-t…
2/ NRO gets wrong federal fraud statute, and thus wrong Supreme Court precedent.
NRO claims DOJ fraud charge must involve deprivation of money/tangible property👇
Sure, if Smith charged Trump for wire fraud (18 USC §1343)
But Smith charged Trump for defrauding US (18 USC §371)
3. On left:
Supreme Court case NRO cites - which addressed wire fraud statute §1343 (a law that includes "obtaining money or property")
On right:
Supreme Court case NRO does not cite - which addressed conspiracy to defraud §371 (and held it is NOT limited to money/property)
4. Next up.
NRO says Smith's §241 charge "bears no relation to what the statute covers" saying §241 is "designed to punish violent intimidation and forcible attacks."
Flatly wrong.
Over 100 years of Supreme Court cases and DOJ charging §241 for not counting ballots properly.👇
5. That long excerpt is from a recent article @AWeissmann_ and I wrote @just_security.
justsecurity.org/87435/an-overl…
@AWeissmann_ @just_security 6. Back to NRO Editorial
On left:
NRO claims §241 is designed for violence and attacks.
On right:
Department of Justice Manual on Election Offenses - listing off exemplary §241 cases, several of which are direct match for Trump Indictment allegation of not counting ballots.
@AWeissmann_ @just_security 7. NRO asserts indictment based on "flimsy legal theories."
Opposite is true.
Federal court already held Trump-Eastman engaged in criminal conspiracy under the two main statutes. 👇
That was a civil suit.
Smith is saying he can prove it beyond reasonable doubt. Which he can.
8. As former U.S. Attorney @BarbMcQuade notes 👇- her "model prosecution memo" using these same twin statutes closely matched actual #TrumpIndictment.
Her memo was also close match for J6 committee brief in that civil case and for Judge Carter's opinion.
@BarbMcQuade 9. A more recent model prosecution memo - like @BarbMcQuade's in its rigor and meticulousness - came to same legal conclusion.
with bipartisan group of authors
@DonaldAyer6, Deputy A.G., G HW Bush
Ambassador @NormEisen
@NoahBookbinder
@Edanyaperry
et al
justsecurity.org/87236/trump-on…
10. I also recommend the latter model prosecution memo's section discussing, in good detail, how §371 does not require depriving victims of money or tangible property.
Including how Supreme Court and courts have interpreted §371 "for more than 100 years."
https://t.co/bBuaZPbaqCjustsecurity.org/87236/trump-on…
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