State and federal prosecutors have charged former President Donald Trump and his allies with a host of felonies for their actions leading up to January 6, 2021. The charges range from the crimes of pressuring state officials to illegally overturn the 2020 election, to fabricating fake electors, to interfering with Congress’s electoral count. But one category of charges is conspicuously absent from the indictments: any charge of fraud related to the Save America PAC for fundraising off of the Big Lie (that Trump was the true victor of the 2020 election) and for the Big Rip Off (raising money for an election defense fund that did not exist). 

For Special Counsel Jack Smith, the charge could be a federal wire fraud. 18 U. S. C. § 1343. For Fulton County, Georgia, District Attorney Fani Willis, it would be Ga. Code § 23-2-52 or common law fraud. There’s reason to believe these charges could still be coming. Subsequent to issuing the federal indictment earlier this month, Smith’s office reportedly conducted at least one interview focused on the Save America PAC’s fundraising between November of 2020 and January of 2021.

Wire Fraud and Scam PACs

Federal prosecutors have long relied on wire fraud when charging individuals with sundry campaign finance related crimes.  These prosecutions are bipartisan, charging Republicans and Democrats alike. For example, in 2023, the Department of Justice indicted Republican Congressman George Santos (NY-03). He was charged with seven counts of wire fraud, three counts of money laundering, one count of theft of public funds, and two counts of making materially false statements to the House of Representatives. In 2022, a Democratic ex-congressman was hit with wire fraud charges. As the DOJ stated, “[a] 28-count indictment was unsealed … charging a former member of Congress with multiple fraud schemes and campaign contribution fraud. Terrance John ‘TJ’ Cox, … is charged with 15 counts of wire fraud … and one count of campaign contribution fraud.”

The closest analogy to the fundraising between Nov. 9, 2020, and Jan. 6, 2021, by the Save America PAC are the activities of so-called scam PACs. A scam PAC is one that pretends to be raising money for a cause and then never gives the money to the designated recipient. This can happen when a famous person is not a candidate for any public office and yet a scam PAC pops up to raise money for their nonexistent campaign. Another version of this scam is raising money for an actual candidate but then never turning the money over to that candidate’s campaign committee and absconding with the funds.

Individuals running so-called “scam PACs” have been convicted of wire fraud violations. For example, in 2020, “[a] Maryland political consultant was sentenced to three years in prison … for fraudulently soliciting hundreds of thousands of dollars in political contributions through several scam political actions committees (PACs) that he founded and advertised as supporting candidates for office and other political causes.” In another example, in 2022, “[a] California man pleaded guilty …to conspiracy to solicit millions of dollars in contributions to two political action committees based on false and misleading representation that the funds would be used to support presidential candidates during and after the 2016 election cycle.” Additionally, former Republican candidate for the U.S. House of Representatives Robert Cannon Hayes pleaded guilty and was sentenced for “wire fraud and willfully violating the Federal Election Campaign Act (FECA) by operating fraudulent and unregistered political action committees.” And in 2023, Jack Daly and Nathanael Pendley pleaded guilty to “conspiring to (i) commit mail fraud and (ii) lie to the Federal Election Commission[]” because of their actions related to a scam PAC called the Draft PAC which used the name of Sheriff David Clarke, Jr. to defraud victims of money.

Fraud and the First Amendment

Trump’s lawyers have already been relying on the argument in the press that the various criminal prosecutions he is facing are attempts to criminalize free speech in violation of the First Amendment. Campaign finance is an area shot through with First Amendment concerns, especially after the U.S. Supreme Court, led by Chief Justice John Roberts, has significantly weakened campaign finance law.

However, the Roberts Court has reiterated that fraud is outside of the First Amendment’s protections, including in a new case, U.S. v. Hansen. As I explained in more detail here, in Hansen, the Supreme Court refused to throw out the conviction of a man who was defrauding immigrants with the lie that they could become U.S. citizens through a bogus pathway of adult adoption. 

In Hansen, the Court reaffirmed a case from the Rehnquist Court, Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003) that “the First Amendment does not shield fraud.”  In Madigan, the Supreme Court noted that “[c]onsistent with our precedent and the First Amendment, States may maintain fraud actions when fundraisers make false or misleading representations designed to deceive donors about how their donations will be used.” Id. at 623–24. In Madigan, the fraud involved fundraising for charity. But presumably, the same logic should apply to fraudulent political fundraising too. 

The Roberts Court has also said that “[f]rom 1791 to the present … the First Amendment has permitted restrictions upon the content of speech in a few limited areas…. [The punishment of these] historic and traditional categories long familiar to the bar[,] including … fraud … and speech integral to criminal conduct …. have never been thought to raise any Constitutional problem.” United States v. Stevens, (2010) (citations and internal quotation marks omitted)).

What else have the other courts said about fraud and the First Amendment? There aren’t very many fraud cases where the defendant is bold enough to raise a First Amendment defense. But in a case against Philip Morris (U.S. v. Philip Morris Inc., (D.D.C. 2004)) where the government was prosecuting the company over its use of Joe Camel to market cigarettes to kids, the district court rejected Philip Morris’ First Amendment arguments stating: “[i]f the Government successfully establishes that the Defendants disseminated their advertising in furtherance of an overall scheme to defraud, the First Amendment will not present an obstacle to appropriate injunctive and equitable relief to remedy the fraud.” 

In another case, United States v. Carson, (2d Cir. 1995), involving a RICO charge against a union officer accused of helping organized crime, the defendant argued that an injunction that prevented him from future racketeering and participation in the affairs of any labor organization violated his First Amendment rights. The Second Circuit rejected this argument stating, “Carson’s argument that the injunction interferes with his First Amendment freedom of association is meritless. ‘[A]n individual’s right to freedom of association may be curtailed to further’ the public’s ‘compelling interest in eliminating the public evils of crime, corruption, and racketeering in union activity.’”

The Ninth’s Circuit made a similar finding in a case called U.S. v. Harkonen, (9th Cir. 2013). A jury convicted W. Scott Harkonen, the CEO of InterMune Inc., of wire fraud for issuing a fraudulent press release about clinical trial results for an InterMune drug. The district court sentenced Harkonen to three years probation and a $20,000 fine. He raised First Amendment arguments in his appeal. The Ninth Circuit, citing the Supreme Court case U.S. v. Alvarez, rejected Harkonen’s argument because “[t]he First Amendment does not protect fraudulent speech.” Harkonen was pardoned by President Trump.

In a case called U.S. v. Smith, Malcom Smith, a New York Democratic State Senator and Vincent Tabone, the Queens County Republican Party Vice Chairman, entered into a complicated scheme to allow Democrat Smith to run for the Mayor of New York City as a Republican. They were both convicted of bribery and honest services wire fraud, and Tabone raised First Amendment defenses during his prosecution. The district court for the Southern District of New York, in U.S. v. Smith, (S.D.N.Y. 2014) predictably rejected this argument:

[If] Tabone is attempting to raise an as-applied or facial First Amendment challenge to the statute, he fundamentally misconstrues the statute’s thrust. The statute does not criminalize mere association with a political party, or advocacy for certain political candidates. In fact, in this case, the statute is being applied to alleged bribes offered and received in return for certain conduct. Just because this alleged quid pro quo arrangement involved political-party officials, they are not entitled to immunity for their actions under the guise of protected speech. 

These appeals failed and both men went to prison.

So far, Special Counsel Jack Smith has not charged any actions related to fundraising using the Big Lie or the Big Rip Off. But that is not because these avenues are legally foreclosed. Indeed, the DOJ frequently charges similar campaign finance cases with wire fraud. For their part, courts, from district courts to the Supreme Court, have been clear that fraud is not protected by the First Amendment.

IMAGE: Special Counsel Jack Smith arrives to remarks on an unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Photo by Drew Angerer/Getty Images)