Colloquially, Donald Trump is often called a con man or a grifter. A con man (short for confidence man) attempts to defraud a person or group “using their credulity, naïveté, compassion, vanity, irresponsibility, and greed”. (Wikipedia)
This is an apt description of Trump, although his attempted fraud is usually much simpler than most confidence tricks. It may just involve Trump, or an organization that represents him, deceiving the public to get people to send the perpetrators money. An example would be Trump’s claim that he won the November 2020 presidential election. This is demonstrably false, and yet Trump has reportedly received millions of dollars in contributions based on solicitations using this claim.
The Department of Justice should investigate these reports to determine if Trump or his organizations have conducted wire fraud. Wire fraud involves these elements:
- The defendant created or participated in a scheme to defraud another out of money or property;
- The defendant did so with intent to defraud;
- It was reasonably foreseeable that the defendant would use wire communications; and
- The defendant did in fact use interstate wire communications.
[Wire Fraud on FindLaw]
For our purposes, using e-mail, websites, television shows, or radio shows in an attempt to defraud contributors would qualify. Immediately after the election, it is very possible there is no proof of intent to defraud, because recounts were continuing and challenges were pursued in the courts. But certainly after the Electoral College met, any further solicitations in the face of those reported results would be evidence of intent to defraud.
There are four important elements of fraud:
- A purposeful misrepresentation of an important ("material") fact;
- With knowledge that it is false;
- To a victim who justifiably relies on the misrepresentation; and
- Who suffers actual loss as a result.
[Everything You Need to Know About Fraud Crimes and Fraud Law on FindLaw]
Again, once the Electoral College met, Trump’s people knew or should have known that his claim he won the election was false. The contributors should be able to rely on a President of the United states to tell the truth. Especially in the cocoon of the right-wing media universe they would be likely to rely on what one of their leaders—believed by so many around them—told them. Their monetary contributions represent a material loss. They gave money. And, because they never received (and could never receive) anything they might expect in return, this is a pure, uncompensated loss. Their contribution was never going to make Trump President for a second term. I claim, and I think it is certain, that these people were defrauded for their money.
While this case may be hard to argue in court, I think the DOJ at least should investigate. It appears that millions of American citizens were deceived into parting with their money. On the face of it, this looks like a clear violation of federal law. Perhaps 18 USC 1343:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice…
...is guilty of wire fraud. Telling people that you won the election to get them to give you money looks like a scheme or artifice to defraud. The claim Trump won is a false representation.
There’s another way in which some people suffered an actual loss. They were arrested for invading the Capitol Building. These people should have been able to rely on Trump’s statements, but he lied to them that he won the election. As a result of believing him, they took actions that endangered themselves (and others), actions that probably will result in the material losses of money and liberty attendant to being arrested. Not to mention whatever they spent to go to Washington, D.C., and participate in the insurrection.
Seeing Trump go down for fraud would be nice, but I think the real power of this can come not from the criminal side of the law but from the civil side. A civil suit could result in restitution. That means the Trump organization might have to give back the money it collected to the people who originally contributed it. In doing so, Trump would be admitting he did not win the election. This could be a very powerful way of demonstrating to millions of people that Trump lied to them, deceiving them with the intent to get money from them.
We need to weaken Trump and his supporters. They attacked our government. Forcing his followers to see that they are being deceived is a powerful way to weaken Trump.
We should also pursue another remedy, one that would prevent Trump and other Republican candidates from using the lie that Trump could not be impeached because he was out of office. This is important not just to undermine the semi-legitimacy he got from acquittal in the trial, but also to undermine the fundraising needed by Republicans running for Congress.
We know this is a lie because (1) the people who wrote the impeachment clause knew England and many existing states had used impeachment against officials no longer in office—and so would have specifically mentioned if they didn’t intend this to be used for former officials, and (2) the Senate determined it had the power to conduct Trump’s trial.
The DOJ should caution campaigns and the Trump organization that they will be looking closely at claims Trump shouldn’t have been convicted because he was out of office. They should not be allowed to use this false claim to raise money.
Even if these efforts fail they will provide a very important benefit. They will inform millions of Americans that Trump and his backers have been deceiving them. The truth is that Trump lost the presidential election, and the truth is that many Republican Senators voted to acquit him based on a lie. The more thoroughly we can drive these points home to his followers, the fewer followers he’s likely to have.