Criminalizing Trivialities

My recent piece at The American Mind: Alvin Bragg’s indictment of Donald Trump abuses any definition of fraud.

Crimes like falsifying business records, forgery, filing false statements, impersonation, certain forms of obstruction of justice or of an official proceeding (such as by concealment, falsification, or false records), and conspiracies or rackets to do any of the foregoing are all instances of “fraud type” crimes. At their essence, they all require that there be a false statement or a misrepresentation—a lie.

Some crimes are frauds per se. These crimes are committed to deceive for some purpose, usually to obtain money or property. At the federal level, wire fraud, mail fraud, bank fraud, and health care fraud are quintessential examples of per se frauds. Prosecutors charge these per se frauds because obtaining money or property by deception is wrong in itself. But unscrupulous prosecutors can strain the wording and intended application of fraud statutes to bolster otherwise weak cases, obtain sentencing enhancements, or criminalize otherwise lawful conduct.

In the two federal indictments brought by Jack Smith, the Fulton County indictment brought by disgraced District Attorney Fani Willis and her lover Nathan Wade (now removed from the case for misconduct), and the indictment brought by Manhattan District Attorney Alvin Bragg, state and federal prosecutors have abused federal and state fraud-type criminal statutes. By my count, of the remaining 88 or so felony charges against Donald Trump, roughly 60 of them reveal egregious misuses of fraud-type criminal statutes. This essay analyzes the 34 counts in Bragg’s indictment, the trial of which is just underway.

You can read the rest here …

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