Jonathan P. Baird

As the January 6 Committee continues its investigation into the Capitol insurrection, there are some lesser-discussed aspects of the story that deserve more attention.

In their second hearing, the Committee showed that Donald Trump and his campaign raised $250 million dollars for a Trump “Official Election Defense Fund”. That fund did not exist and, in fact, it never existed. The scam began on November 4, the day after the election. By that point, Trump and his aides were well aware he had lost even though the election was not definitively called on TV until November 7. Trump sent out an email from the address contact@victory.donaldtrump.com:

“Friends, the Democrats are trying to STEAL THE ELECTION. I’ve activated the Official Election Defense Fund and I need EVERY PATRIOT, including YOU, to step up and make sure we have enough resources to PROTECT THE INTEGRITY OF OUR ELECTION.”

The Trump team followed with a fundraising email claiming that “President Trump will easily WIN the Presidency of the United States with only legal votes cast”. They asked for supporters to donate any dollar amount to the “Election Defense Task Force”. This was followed by a barrage of emails over a nine week period, as many as 25 a day, pleading with Trump supporters to contribute to prevent the “Radical Left from DESTROYING America” These emails continued until January 6.

In the first week after the election, the Trump campaign raised $100 million. They got donors to kick in $150 million more all supposedly for the goal of helping legal challenges to the election results. However, according to the video testimony of Amanda Wick, the January 6 Committee’s chief investigative counsel, the Trump “Official Election Defense Fund” never existed. This was corroborated by the Committee testimony of two Trump campaign aides Hannah Allred and Gary Coby.

The $250 million was diverted into a new Trump entity, Save America PAC. The PAC made contributions to Trump hotels, to a conservative organization employing former Trump staffers and to the company that organized the rally that preceded the attack on the Capitol on January 6.

Asking for money for election defense and then switching to using it to pay other debts sounds like a fraud. It is a deception and a misrepresentation, bilking your own supporters.

It is significant that many advisors, including Attorney General William Barr, had told Trump there was no voter fraud. According to the video testimony of Jason Miller, a Trump advisor, the campaign’s head of data told Trump “in pretty blunt terms that he was going to lose”. Yet, it did not stop Trump and his organization from aggressively dishing out fundraising emails even when they knew there was no evidence of voter fraud.

The January 6 Committee has subpoenaed the Republican National Committee’s digital marketing vendor, Salesforce, to obtain information about who initiated and signed off on the emails and about the whole fundraising scheme. The Republican National Committee is fighting the subpoena in court.

Paul Ryan, vice-president of policy and litigation with Common Cause has said,

“Donald Trump is a one-man scam PAC. Bait and switch is among his favorite fundraising tactics.”

Most of the public discussion about Trump’s crimes have focused on conspiracy to commit sedition as well as his efforts to intentionally obstruct Congress’s certification of Biden’s win. We never had a President attempt a coup before. Still, the scam fundraising should be considered too. It is not simply unethical – it is mail and wire fraud.

I would compare the crime to the Build the Wall fraud committed by Steve Bannon and his co-defendants. They advertised that fundraised money was going to build the wall between Mexico and the U.S. but it was actually used for other purposes like funding luxury lifestyles. Bannon pled not guilty to pocketing $1 million before he was pardoned by Trump. Two of Bannon’s co-defendants pled guilty and were sentenced to prison.

Mail fraud and wire fraud are both serious federal offenses. They are punishable by $1,000,000 fine or imprisonment up to 30 years. The crime is when a person knowingly devises a scheme to “obtain money” through “false or fraudulent pretenses, representation or promises”. The crimes must be committed through the U.S. mail system or a private delivery service or through phones or emails, among other means.

No doubt it is often difficult for prosecutors to prove criminal intent but a fraud case against Trump and his campaign has a very strong factual basis. As Elie Mystal has pointed out, the Department of Justice could pursue getting records from the RNC’s digital marketing vendor, Salesforce. Maybe Trump himself signed off on the plan for his election defense fund.

Many have pointed out that Trump learned lessons from Roy Cohn, who was his mentor. Trump has generally not been careless about leaving his finger prints at the scene. The Election Defense Fund scam is textbook fraud. It remains unclear if the will and prosecutorial zeal to pursue this case exists at the Department of Justice.

There is tremendous cynicism about our justice system. I think the public expects Big Fish to routinely commit crimes and get away with it. A long time ago, Eugene V. Debs captured the problem. He wrote:

“There is something wrong in this country; the judicial nets are so adjusted as to catch the minnows and let the whales slip through.”

Time will tell if the whale again slips through.