NRPLUS MEMBER ARTICLE A fter all the Capitol riot dust settled, did former President Donald Trump commit a plain old financial fraud — i.e., pocket a pile of dough that he raised on false pretenses?

We have to ask the question because, otherwise, the Biden Justice Department’s chosen special counsel Jack Smith is likely to run headlong into the Supreme Court’s admonition that prosecutors refrain from invoking fraud and other vague statutes to criminalize malign behavior by public officials — as I explained back in May, when the justices reversed the convictions of two Andrew Cuomo cronies.

Before passing judgment, we must obviously wait for the public filing of the latest and apparently imminent Trump indictment by the feds. That could come as early as today, but more likely within the next week. The timing is worth noting, as is the venue.

Trump announced on his Truth Social platform that he received a “target” letter from Smith on Sunday evening, giving him four days (so presumably until Thursday) to decide whether he’d like to testify before the federal grand jury in Washington, D.C., that has been investigating Trump’s efforts to undo his loss in the 2020 presidential election.

There is no requirement in federal law for prosecutors to invite suspects to testify in a grand-jury investigation, but the Justice Department will often do it in nonviolent crime cases where the suspect is aware that he’s under scrutiny and there’s no risk that the suspect will flee. The invitation is almost always a non-event except in its implication that the investigation is at its end. Such suspects routinely decline to testify. The Fifth Amendment gives them that right, and if one has been advised that he is a target, that essentially means the decision to indict has already been made, so one might as well wait to see what the government has (what the charges are, what the discovery shows) before making statements that can be used by the prosecutors.

So what’s interesting about the timing? Trump was correct in his post to observe that it is unusual for a suspect’s counsel to be given a target notification on a Sunday, with just four days to decide whether to testify. Since Smith well knows that Trump will decline to testify, his sudden urgency indicates that he intends to have the grand jurors vote to approve the indictment in the next few days (if they haven’t done so already).

Once the indictment is announced, arrangements will be made — just as in the New York State criminal case in Manhattan, and then in Smith’s other federal indictment of Trump in Florida — for the former president to surrender, be processed, and be arraigned by a judge. Again, because of Trump’s status, that will be coordinated by the Secret Service, the Justice Department (the special counsel, in conjunction with the U.S. marshals and the FBI), and the court.

What’s the rush, though? Clearly, Smith doesn’t want to find himself behind Fulton County prosecutor Fani Willis in the growing Trump-indictment queue. Smith is already behind Manhattan district attorney Alvin Bragg, whose hush-money prosecution against Trump is set for pretrial hearings starting in December, with a trial on March 25, 2024. Smith, moreover, has been frustrated in his Florida prosecution. He wants to rush the case to trial — Democrats believe that the indictments in all these cases will get Trump nominated thanks to his outraged, animated base, but that trials would then assure his defeat in the November 2024 election. Yet Smith may not be able to get the Mar-a-Lago documents case to trial prior to the election, mainly because of the complications of classified evidence that I outlined a few days ago (and partly because other cases against Trump make scheduling yet another trial tough). By indicting a new case in Washington — one that is (presumably) not teeming with classified evidence — odds are good (though it’s no lock) that this January 6 case will assigned to a Democratic-appointed judge apt to be more sympathetic to prosecutors than Judge Aileen Cannon, the Trump-appointee who drew the Mar-a-Lago documents case.

In the more favorable forum of D.C. and with a less complicated case, Smith figures he can beat back Trump’s strategy of delay. The former president’s best shot at escaping the federal criminal jeopardy he is in is to have trials postponed beyond November 2024, on the calculation that a new Republican administration (one Trump presumes will be run by him) would dismiss the cases. Smith’s best shot at getting to trial in the next few months is to convince an accommodating judge that a suitable schedule can be navigated around Trump’s other criminal and civil prosecutions — and that the court should just ignore the 2024 campaign as if Trump weren’t a candidate because, after all, “no one is above the law.”

If Smith waited, however, until after Willis indicts Trump in Atlanta (which is supposed to happen in the next month), then his window would close. There is a good chance it’s closed already. Even a Washington judge sympathetic to Smith would probably not wish to be accused of running roughshod over Trump’s civil rights.

Let’s imagine for a moment that Trump had no other litigation on his plate besides the coming January 6 case. It would still be reasonable for him to argue that (a) it’s unfair to expect him to be ready for trial in a few months when the government has taken two-and-a-half years to investigate; (b) he is the leading GOP presidential candidate, and the legal system should avoid unnecessary intrusion into electoral politics; and (c) there would be no harm in delaying the trial until after the electoral process is concluded.

Now let’s factor in the many other cases Trump has to contend with. In seeking to delay a January 6 trial, he can further argue that (1) he already faces complex criminal cases with extensive discovery and novel legal issues in New York and Florida; (2) he also faces trial in a complex state civil fraud case less than three months from now (in New York on October 3); (3) the Georgia indictment is coming, soon; (4) it is especially offensive for Smith, having tactically indicted Trump in Florida, knowing it would deplete his time and resources, to now pressure the court to subject Trump to a trial on a tight schedule in D.C. (even as Smith continues pushing for a trial on a tight schedule in Florida); and (5) Smith was chosen as a special counsel by the Biden Justice Department — even though there was no conflict of interest (which there must be, to justify the appointment of a special counsel), and even though President Biden’s attorney general, Merrick Garland, has refused to appoint a special counsel in the Biden corruption investigation, where there is a neon-flashing conflict of interest — in order to camouflage the fact that Trump, who is currently Biden’s main competition in the presidential campaign, is being charged under Biden’s authority by a prosecutor who answers to Biden’s attorney general. This must be considered in conjunction with the fact that Trump’s state tormentors — New York attorney general Letitia James, Manhattan district attorney Bragg, and Fulton County district attorney Willis — are elected Democrats who are contributing the prosecutorial resources of their offices to the Democrats’ electoral strategy (namely, that Biden is a weak president whose best hope for reelection is to have Trump as the Republican nominee).

For all these reasons, Trump will argue to the federal judge in D.C. that fundamental fairness and the court’s own integrity — i.e., the judiciary’s vital interest in not appearing to be a used as a political weapon by the incumbent administration — demand that any trial be adjourned until after the 2024 election.

This is a good legal argument for Trump under the circumstances. For the country . . . not so much. It would turn the 2024 campaign into a referendum on Trump’s federal indictments. I’m not suggesting that those indictments are insignificant — he’s a former president and current candidate, and we spend lots of time covering these developments because their newsworthiness is patent. But the country faces challenges of far greater significance than whether Trump is guilty of federal crimes. To have his legal jeopardy — rather than, say, China, our appalling lack of military readiness, the war in Ukraine, the Iranian nuclear program and the growing possibility of war in the Middle East, the continuing jihadist threat, the economy, the debt, the unsustainability of so-called entitlement programs, etc. — be the centerpiece of a highly consequential election would be a travesty.

As for the January 6 case itself, I go back to where I started.

It is reported that Trump is likely to face charges of corruptly obstructing a congressional proceeding (the January 6 counting of state-certified electoral votes, ratifying Biden’s victory), conspiring to defraud the government, and a related federal fraud scheme. As I elaborated on in the column cited above, the Supreme Court was emphatic in its Percoco and Ciminelli rulings that fraud in federal law essentially means financial fraud — schemes to obtain money or traditional forms of tangible property. When Congress tried to extend the concept of fraud to schemes to deprive the unwitting of “honest services,” the Court rightly found this term too vague; rather than hold the statute unconstitutional, the justices gave “honest services” a narrower construction: Only kickbacks and bribery — the commonly understood kinds of political corruption — are prohibited.

The justices could not have been clearer in admonishing prosecutors not to get creative by attempting to criminalize patterns of deception that Congress has not clearly codified in penal statutes. I do not believe the charge of conspiracy to defraud the United States — a favorite go-to of aggressive prosecutors — can survive this admonition unless the government can prove a defendant was trying to bilk the government out of money or tangible assets.

Nor do I think a charge of corruptly obstructing Congress can survive if the alleged corruption does not involve patently lawless behavior, such as evidence tampering, or threats to use force against witnesses or Congress itself. Since Trump has not been implicated criminally in the violence of the Capitol riot, Smith would almost certainly have to argue that the corruption lay in Trump’s (a) awareness that he lost the election and (b) reliance on John Eastman’s nonsensical legal theory that then–Vice President Mike Pence had authority to discount electoral votes. I’d be surprised if prosecutors can prove beyond a reasonable doubt that Trump knew he’d lost the election (Trump may well believe his own BS), and I do not believe reliance on a frivolous legal theory would meet the standard of patently lawless behavior necessary to constitute corruption.

All that said, keep your eye on an episode that appears to have gotten a lot of Smith’s attention (and that got a good deal of attention from the Democrat-controlled House January 6 committee). It is said that the Trump campaign raised tens of millions of dollars on the representations that the money would go to a legal fund that would fight the election fraud by which Trump claimed the election was being stolen. Yet, at least according to the January 6 committee (see, e.g., final report at p. 770 & ff.), there was no such fund and at least some of the money was diverted to other purposes (such as, the New York Times reports, more than $200,000 spent at Trump hotel properties).

If Smith can prove that, then he is in the ballpark of traditional fraud. To be sure, if he has decided to go down that road, the next Republican Justice Department is going to be spending a great deal of time scrutinizing what Democrats and their allied outfits such as Black Lives Matter actually do with the goo-gobs of money they raise for this or that stated cause. But if past is prologue, progressives and other anti-Trumpers do not concern themselves with the unintended consequences. What matters is nailing Trump — especially if you can get Republicans to nominate him in the process.