The “Lay Down Case” For Charging Trump (and many others) With Conspiracy To Defraud The United States

Today on Morning Joe, Bob Woodward and Bob Costa said a Republican former head of the Criminal Division at the Department of Justice told them that based on just what we already know, there is a “lay down case” under 18 U.S.C. § 371. That statute makes it an offense to conspire to defraud the United States. This article evaluates that assertion.

A conspiracy requires three things.

1. A plan or agreement by two or more people.

2. To commit a crime.

3. At least one overt act in furtherance of the conspiracy.

Starting with that first one, put simply a conspiracy requires conspirators. One cannot conspire by oneself. In this case Woodward mentions three names most prominently: Trump, Steve Bannon and John Eastman. However many more coconspirators are possible because those three were either at, or calling into the “War Room” at the Willard Hotel where efforts to overturn the results of the election were centralized. This leads to the possibility of charging people low on that food chain and flipping them to move up. In any event, a conspiracy requires only that there be at least two conspirators, we have that.

The second element deals with the question of what “defraud” means in the statute, which I will get to in a moment.

The third element of conspiracy is at least one act in furtherance of it. If you and I get drunk one night and plan to rob a bank, but never do anything else, there is no conspiracy. But if in furtherance of the plans we made I go out and “case” the bank there is.

Here there are likely dozens of such overt acts. The call to 300 state legislators trying to con them into convening special sessions to create substitute slates of electors. The browbeating of Pence to not certify the electoral votes of battleground states. Trump directly ordering his Attorney General and Assistant Attorney General to lie to state officials by falsely claiming the DOJ found evidence of widespread election fraud (add Jeff Clark to the conspiracy list as he was very much a part of that).

Back to the second element, “to commit a crime.” This goes to the intent to “defraud the United States.” What exactly is meant by that? The DOJ maintains a website advising its attorneys on exactly that and citing supreme court cases to do so. The language is highly encouraging.

“The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.” — Hass v. Henkel, 216 U.S. 462 (1910)

Suddenly this is really easy. The multiple conspiracies included efforts to use the DOJ, state legislatures and the Vice President to stop the counting of the certified electoral college votes. Counting the certified electoral college votes is most definitely required by law. That law being the 12th Amendment of the United States Constitution and (for the record) by statute at 3 U.S.C. § 15. https://www.law.cornell.edu/uscode/text/3/15

Fraud also requires deception, or dishonesty, or even (per the United States Supreme Court) something as mild as “overreaching.”

“To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.” — Hammerschmidt v. United States, 265 U.S. 182 (1924)

The means of attempting this included deception and overreaching. While there are probably many more, I can think of at least the following:

• Eastman’s false claim that seven states had put forth alternative slates of electors (none had).
• Trump’s attempt to get his Attorney General and Assistant Attorney General to tell state legislators the lie that the DOJ had found substantial evidence of widespread election fraud.
• Efforts by Trump, Eastman and others to convince Mike Pence of the falsity that he had the unilateral power to throw out certified electoral college votes from battleground states.
• Trump issuing a statement on the evening of January 5th falsely stating that Pence agrees with Trump that Pence can unilaterally toss out certified electoral college votes.
• Trump’s threatening Brad Raffensperger with criminal action against him if he didn’t “find” the exact number of votes Trump needed to win Georgia.

The corrupt intent of it, in Bannon’s words, were to “kill the Biden Presidency in its crib.”

Compared to a conspiracy to overthrow a lawful election many court cases seem trivial in comparison. Haas provided false reports on cotton production that interfered with the ability of the government to accurately report the same. In United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990), disguising contributions to evade the Federal Election Commission’s reporting requirements constituted fraud on the agency under Section 371.

Woodward and Costa present this as a “lay down case” under § 371. While I am not sure about that, it seems very strong.

It also presents another interesting point. Eastman would argue he can’t be compelled to testify about his conversations with Trump because of the Attorney/Client privilege. However, no such privilege can attach when related to the commission of a crime or fraud. A strong argument exists that the crime/fraud exception has gutted any attorney/client privilege Eastman or Trump might claim. On the other hand, Eastman could assert his own 5th Amendment right to be silent. However, that privilege is Eastman’s alone, and he could choose to waive it without regard for Trump.