A lot of people have claimed that Attorney General Merrick Garland is a 98-pound weakling due to the fact that Donald Trump hasn’t been charged yet. Well, they should have long since been disabused of those concerns by the approach that special counsel Jack Smith has taken since he was handed control of the investigations into the Jan. 6 insurrection and Trump’s decision to squirrel classified documents to Mar-a-Lago.
Remember, Smith persuaded a judge to force Evan Corcoran, the lawyer who initially certified there were no more classified documents in Mar-a-Lago, to give further testimony after arguing that Trump used Corcoran to commit a crime. I believed in March, and I still believe now, that there’s no way Smith would have taken the extraordinary step of piercing attorney-client privilege unless he was building a case against Trump himself. We also know that Smith wants to know if Trump illegally attempted to use the pretext of national security to hang on to the presidency.
Well, over the weekend, we got more insight into just how much legal peril Trump faces. Former federal prosecutor Glenn Kirschner told MSNBC that he believes Smith is seriously thinking about hitting Trump on charges of wire fraud.
Kirschner was reacting to a report in Saturday’s edition of The New York Times that revealed Smith and his team are taking a long, hard look at Trump’s fundraising. Specifically, whether Trump was wringing his supporters for money to help “Stop the Steal” despite being very much aware that he had lost.
As they investigate former President Donald J. Trump’s efforts to overturn the 2020 election, federal prosecutors have also been drilling down on whether Mr. Trump and a range of political aides knew that he had lost the race but still raised money off claims that they were fighting widespread fraud in the vote results, according to three people familiar with the matter.
Led by the special counsel Jack Smith, prosecutors are trying to determine whether Mr. Trump and his aides violated federal wire fraud statutes as they raised as much as $250 million through a political action committee by saying they needed the money to fight to reverse election fraud even though they had been told repeatedly that there was no evidence to back up those fraud claims.
According to the Old Grey Lady, prosecutors have churned out a tranche of subpoenas in an effort to peer into the guts of that PAC, Save America. Those subpoenas have gone out to a number of Republican operatives and vendors who received money from Save America.
When Kirschner saw this, his ears perked up. He told MSNBC’s Jonathan Capehart that this is a sign Smith is at least thinking about charging Trump with wire fraud. Watch here, via Raw Story.
Kirschner told Capehart that wire fraud is “the stock and trade of federal prosecutors.” He should know. He spent 24 years as an assistant U. S. Attorney for the District of Columbia, the second-most prestigious U. S. Attorney’s Office in the country. He reminded us that “the wires” has expanded beyond phones, radio and TV to encompass the Internet.
According to Kirschner, wire fraud is “fairly easy” to prove. He believes that Smith is garnering evidence for “a series of wire fraud charges” as part of a larger indictment for conspiracy to defraud. Last year, Kirschner recalled, when a federal judge ordered Trump lawyer John Eastman to turn over emails to the Jan. 6 Committee, he found that Trump “more likely than not” engaged in a criminal attempt to stop Congress from counting the votes in the 2020 election—and in so doing “committed the crime of conspiracy to defraud the United States.”
I had hoped for some time that prosecutors could prove that Trump was wailing about fraud when he damned well knew he had lost. Such proof would take a battering ram to any claims of free speech from the Trump camp. If Smith is looking at claims of wire fraud, it looks like he’s getting close to that proof. Wire fraud carries a maximum of 20 years in prison upon conviction—per count. Depending on how much Trump is deemed to have fraudulently wangled from his supporters, a wire fraud conviction could potentially be enough to put him behind bars for life. Remember, one big reason reason Bernie Madoff got the maximum of 150 years in prison is that federal guidelines for fraud only go as far as $400 million; Madoff stole anywhere from 32 to 162 times that threshold.
A wire fraud indictment would be a big hit in the wallet for Trump. Politico reported in 2021 that at least some of Trump’s business loans include a standard provision giving the bank the right to call the loan in if the borrower is indicted. But when I saw this story roll across my Facebook feed on Saturday, I thought there might be another way for Smith to really put the screws to Trump—an indictment under the Racketeer Influenced and Corrupt Organizations Act (RICO). For those who don’t know, if a person commits two of 27 federal crimes or eight state crimes within a 10-year period in order to further a “criminal enterprise,” that person can be charged with racketeering—which carries up to 20 years in prison and $25,000 in fines per count. Fraud is a predicate offense under RICO, so if Smith were so inclined, any two of those fundraising appeals—ANY two of them—would be enough to slap Trump with racketeering charges.
If Smith were to take the route of RICO charges, the real pinch for Trump would be economic. I was reminded of how Drexel Burnham Lambert was forced to surrender in 1989 when the feds threatened it with a RICO indictment for Michael Milken’s misdeeds. According to April Fools, a book written by former Drexel executive Dan Stone, Drexel had little choice but to take an Alford plea to charges of stock manipulation and stock parking because over 96 percent of its capital came from loans—by far the most of any Wall Street firm at the time. Had Drexel been indicted, it would have had to post a bond of up to $1 billion to avoid having its assets frozen. That performance bond would have taken precedence over its other debts—meaning that a RICO indictment would have been enough by itself to put Drexel out of business.
Trump would face a similar financial squeeze under a RICO indictment. As we all know, his real estate empire survives almost entirely on loans. According to a Forbes estimate in 2021, he was at least $1 billion in debt. That would take second place to any performance bond he would have to post under a RICO indictment. If Trump were hit with a RICO indictment, he’d be cut off from any bank still willing to do business with him in the wake of both Jan. 6 and the Trump Organization’s conviction last year for tax fraud.
To be sure, a RICO indictment would be unprecedented, since it would have the effect of declaring that at some point, a presidential campaign effectively became a criminal enterprise. But considering that said campaign engineered a self-coup, it would be more than warranted. Still, even without RICO, the fact that Smith is even thinking about hitting Trump with a 20-year felony is a BFD. It shows just how much peril Trump is in—and that the GOP is in for a whopper of a reckoning for lashing itself to him.