Posted 8:28 AM by Robert

Surely You Jest, Mr. Safire!

In what might be a truly alarming column were it not (apparently) tongue in cheek, William Safire today opens with a quote from U.S. Criminal Code, Chapter 63, Section 1343 (wire and mail fraud) and suggests that the author and/or knowing disseminators of the forged Killian memos might well be guilty of federal felony under the quoted statute:

At the root of what is today treated as an embarrassing blunder by duped CBS journalists may turn out to be a felony by its faithless sources. Some person or persons conceived a scheme to create a series of false Texas Air National Guard documents and append a photocopied signature to one of them. The perpetrator then helped cause the fraudulent file to be transmitted by means of television communication to millions of voters for the purpose of influencing a federal election.

Whoever forged those documents is not a nice person and the political and career and reputational consequences to anyone involved in perpetrating this fraud should be severe. But, for example, Herr Doktorprofessor Paul Von Krugman commits a deliberate fraud in his column about twice a week with the specific intent that the fraudulent file (column) be transmitted by means of communication covered by the wire fraud statute (including the internet) to millions of voters for the purpose of perverting federal elections. So what? Does that mean the office down the hall from Mr. Safire's should be cleared out while its current gnomishishly-handsome occupant spends some time in Leavenworth? I hope not! And, of course, many people would passionately maintain that Mr. Safire is in the same business as Herr Doktorprofessor - and was in the business even deeper as a professional mind bender working for Richard Nixon.

It's not a crime under the federal wire fraud statute merely to disseminate even the worst fraudulent material - including the New York Times and other Big Mainstream Media - with the purpose of corruptly influencing a federal or other election, as the Department of Justice Criminal Resource Manual makes clear:

In McNally v. United States, 483 U.S. 350 (1987), the Supreme Court held that the mail fraud statute does not reach "schemes to defraud citizens of their intangible rights to honest and impartial government" . . . and that the statute is "limited in scope to the protection of property rights." See Carpenter v. United States, 484 U.S. 19, 25 (1987) (quoting McNally and extending it to wire fraud statute); see also Evans v. United States, 504 U.S. 255, 292 (1992) ("[I]n McNally . . . we rejected the Government's contention that the federal mail fraud statute . . . protected the citizenry's 'intangible right' to good government . . . . ") (Thomas, J., dissenting).

In response to McNally, Congress passed Section 1346 of Title 18, United States Code, which provides that "For the purposes of this Chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

Section 1346, which became effective November 18, 1988, seemed to resolve the intangible rights issue. See Madeoy, 912 F.2d 1486, 1492 (D.C. Cir. 1990) ("McNally has been overruled by legislation."), cert. denied, 498 U.S. 1105 and 498 U.S. 1110 (1991); cf. United States v. Bush, 888 F.2d 1145, 1145-46 (7th Cir. 1989) (ex post facto concerns bar the application of section 1346 to pre-1988 conduct). In United States v. Brumley, 79 F.3d 1430, 1440 (5th Cir. 1996), petition for rehearing en banc pending, however, the court concluded that the wording of § 1346, "simply does not effect a change in the portion of the McNally opinion which held that the mail fraud statute does not reach 'schemes to defraud citizens of their intangible rights to honest and impartial government.'"

As an aside, the "tangible/intangible" distinction is a distration which is not worth the bother in this case - the inapplicability of the federal mail and wire fraud laws to election rights does not turn on that distinction.

Of course, it is possible to transgress the mail and wire fraud statutes in the process of "corrupting" an election - and the Justice Department has guidelines for those instances, too. And there may be other federal criminal laws that turn on some aspect of the perpetrator's act other than its mere substantive fraudulence that were breached here, including (perhaps) this one that turns on impersonating an official:

United States Code, Title 18, Section 912: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both

Maybe such statutes apply, but I wouldn't bank on it. It's very hard to criminalize political activity - and that's a really, really good thing.