One is to describe, to the best of your ability, what you believe the state of the law is, how and where courts might agree or disagree with you, and how your view of what the law should be differs from how courts currently interpret it.
uncertain
courts → describe → it
That’s what I aspire to.
asserted
I → ’ → what
I fall short all the time, I’m sure.
asserted
I → fall → ?
The other way to be a public legal commenter is to be an advocate pretending to be a fair reporter — to take what you think the law should be based on your sympathies or politics and present it deceitfully as what the law inarguably is.
asserted
law → pretend → it
I’ve often criticized Alan Dershowitz for doing this — for instance, for telling the public “you can’t convict someone of lying to the federal government if the federal government knew they were lying,” even though every modern court to consider that argument has rejected it.
asserted
court → criticize → it
Andrew C. McCarthy and the Editors of the National Review are choosing the Alan Dershowitz path of legal commentary.
asserted
McCarthy → choose → commentary
Well, at least it’s an ethos.
asserted
it → ’ → ?
Last Week: The National Review Misrepresented Federal Fraud Law
Last week I explained how the National Review was flat-out lying about the state of the law on the latest charges against Donald Trump.
asserted
Review → misrepresent → Trump
Among other things, the Editors claimed that the Supreme Court has recently ruled that “fraud in federal criminal law is a scheme to swindle victims out of money or tangible property” and that therefore the Special Counsel is wrong to charge Donald Trump with violation of 18 U.S.C. section 371.
asserted
Counsel → claim → section
I pointed out that this was a lie — the cases National Review is talking about recent cases interpreting the mail and wire fraud statutes, both of which have specific language in the statute requiring a scheme to take money and property.
asserted
both → point → money
By contrast, for the last hundred years courts from the Supreme Court down have repeatedly ruled that Section 371 makes it a crime to defraud the United States in a way to interfere with its operations, even without money and property as a goal.
asserted
it → rule → goal
This Week: The National Review Misrepresents Federal Fraud Law, But In New And Different Ways
The National Review, through Andrew C. McCarthy, has doubled down and lied some more.
asserted
Review → misrepresent → McCarthy
Would you like to hear how?
asserted
you → like → ?
Naturally Mr. McCarthy did not deign to respond to me.
asserted
McCarthy → deign → me
But he did respond to National Review writer Noah Rothman, who honorably (and much more politely than I) told the Editors they were wrong.
asserted
they → respond → Editors
His response is more dishonesty — more advocacy thinly disguised as neutral analysis — not less.
asserted
response → disguise → analysis
First, Mr. McCarthy again relies on this year’s decision in Ciminelli v. United States, quoting it for the proposition that “the federal fraud statutes criminalize only schemes to deprive people of traditional property interests.”
asserted
statutes → rely → interests
But Ciminelli is about federal mail and wire fraud statutes, both of which explicitly refer to schemes to defraud people of money or property.
asserted
both → refer → money
Ciminelli isn’t talking about Section 371 or any other fraud statute.
asserted
Ciminelli → talk → Section
The case doesn’t even mention Section 371.
asserted
case → mention → Section
Mr. McCarthy wants you to believe — even though the proposition is ridiculous on its face — that Justice Clarence Thomas was making a broad, sweeping ruling about every federal statute with “fraud” in it, even though only one statute was in front of the Court.
asserted
statute → want → Court
Mr. McCarthy knows he wasn’t.
asserted
he → know → ?
Second, Mr. McCarthy cites McNally v. United States, the 1987 case in which the Supreme Court said that the wire fraud statute covers schemes to defraud people of money or property, not an intangible “right to honest services,” a long-time theory popular in corruption prosecutions.
asserted
statute → cite → prosecutions
(Congress promptly passed a law saying you could prosecute people for depriving the public of the “right of honest services.”)
uncertain
you → pass → services
Mr. McCarthy points out that Justice Stevens, in dissent, cited cases about Section 371 — the same ones Mr. Rothman and I cited — for the proposition that fraud can be broader than depriving people of money or property.
asserted
fraud → point → money
They lost!
asserted
They → lose → ?
Mr. McCarthy tells his audience, shows that the Supreme Court has rejected a broad theory of fraud under Section 371.
asserted
Court → tell → Section
The problem with this argument is that it deceitfully omits a key part of the majority opinion in McNally.
asserted
it → omit → McNally
In a footnote — which, I regret, I must remind you to read — Justice White explains that Section 371 permits broader theories of fraud because it services different interests, and endorses the broader reading of Section 371.
asserted
it → regret → Section
The whole footnote explicitly contradicts McCarthy’s argument but here is the key part:
asserted
part → contradict → argument
Hammerschmidt concerned the scope of the predecessor of 18 U.S.C. § 371, which makes criminal any conspiracy "to defraud the United States, or any agency thereof in any manner or for any purpose."
asserted
conspiracy → concern → purpose
Hammerschmidt indicates, in regard to that statute, that while
"[t]o conspire to defraud the United States means primarily to cheat the Government out of property or money, . . . it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."
265 U.S. at 265 U. S. 188.
asserted
that → indicate → S.
Other cases have held that § 371 reaches conspiracies other than those directed at property interests.
asserted
§ → hold → interests
See, e.g., Haas v. Henkel, 216 U. S. 462, 216 U. S. 480 (1910) (predecessor of § 371 reaches conspiracy to defraud the Government by bribing a Government official to make an advance disclosure of a cotton crop report); Glasser v. United States, 315 U. S. 60 (1942) (predecessor of § 371 reaches conspiracy to defraud the United States by bribing a United States attorney).
asserted
predecessor → see → attorney
However, we believe that this broad construction of § 371 is based on a consideration not applicable to the mail fraud statute.
asserted
construction → believe → statute
Section 371 is a statute aimed at protecting the Federal Government alone; however, the mail fraud statute, as we have indicated, had its origin in the desire to protect individual property rights, and any benefit which the Government derives from the statute must be limited to the Government's interests as property holder.
asserted
Government → aim → holder
Put another way, in McNally the Supreme Court expressly said that Section 371 has a broader theory of fraud because it protects different interests than the mail fraud statute.
asserted
it → put → statute
Mr. McCarthy takes McNally and says that it shows that fraud is defined the same under the mail fraud statute and Section 371.
asserted
fraud → take → statute
That’s lying.
asserted
That → lie → ?
Third, McCarthy goes on to misrepresent yet another Supreme Court case, Skilling v. United States, in which the Court struck down the conviction of infamous Enron exec Jeffrey Skilling.
asserted
Court → go → Skilling
…and 42 more, not listed.
