The Trump administration has introduced the country to a colorful troupe of liars like none other in memory. Starting with the president himself, the past two years have brought to the national stage a phenomenal array of promiscuous fabricators. It therefore stands to reason that so many of the offenses ferreted out by Special Counsel Robert Mueller are crimes of dishonesty. Prosecutors take their crimes where they find them, particularly as they work their way up the ladder to the most important targets.
Defenders of the president lately have taken to disparaging Mueller’s charges as mere “process crimes.” Senator Lindsey Graham called Michael Cohen’s Friday plea a “process crime,” and Rush Limbaugh chimed in that “every one of Mueller’s indictments is a process crime.” Presumably, Graham and Limbaugh would also apply that term to the case against Michael Flynn, who in December 2017 pleaded guilty to one charge of making materially false statements to the FBI. That case moved toward its conclusion Tuesday night with Mueller’s sentencing memorandum recommending no time in prison.
Although the “process” criticism is not precise, the basic idea is that many of the charges, including those against Cohen and Flynn, stem from the response to an investigation, rather than underlying prior conduct. Mueller’s detractors evoke an image of Trump partisans subjected to the third degree over many days until they get confused and innocently provide inaccurate details about immaterial matters.
The criticism is part of the overall discounting of the value of truth in the Trump era. Lies, it’s implied, are a rampant, and ultimately trivial, feature of public life. But here’s another word for what Mueller’s chasing that has not yet lost its sting: fraud. That sounds a lot less benign than lie or process crime, and for good reason. The fraudster, more than just fooling the victim, aims to exploit, to implement a scheme that deprives the victim of something of personal or financial value.
Under the law, fraud is a deliberate, material deception to secure an unlawful gain. The bread-and-butter charge of the white-collar prosecutor is fraud of some sort—wire fraud, bank fraud, or tax fraud—which constitutes about 10 percent of the federal docket and about 75 percent of all white-collar offenses. As a prosecutor, I brought dozens of fraud cases, and in my current legal practice, I routinely sue people and companies in civil court who have defrauded the government.
At the core of every fraud is a lie: an important lie that the defendant tells knowingly in order to influence a victim’s action. Paul Manafort has made a life of such lies, as in different ways have many of Mueller’s 33 defendants and, of course, the president.
To the extent the “mere process” description is meant to trivialize the charges, several responses come immediately to mind.
First, there is nothing trivial about lying to Congress or the FBI, and none of the lies in question were picayune. Cohen’s lies, for example, were thoroughly premeditated, even written out. And his sentencing memorandum indicates that his lies toed the party line designed to support the president’s political fortunes, which makes them considerably more serious. Likewise, with Flynn, underlying his false statements was an apparent relationship with Russia that may have led him to push for specific diplomatic changes. It may have been to keep that conduct under wraps that the president improperly importuned then-FBI Director James Comey to drop the Flynn probe.
Second, Mueller’s approach is common to large-scale investigations of political crimes—think Watergate, Iran-Contra, Scooter Libby—as captured in the well-worn adage “It’s not the crime, it’s the cover-up.”
Third, the Russian angle imposes another level of gravity on the crimes of dishonesty here, because many of the lies—e.g., Flynn’s and Cohen’s—were known to the Russian government, and therefore exposed the liar to the possibility of blackmail.
By suggesting that the administration’s lying ways are haphazard and trifling, the “process crime” argument simply misses the mark. More and more, the administration looks like a fundamentally fraudulent enterprise presided over by a fraudster-in-chief. Trump is not only an inveterate liar; he is a fraudster who lies knowingly, and by design, to help himself at others’ expense.
As a businessman, Trump defrauded partners, employees, banks, and governments. As a candidate, he defrauded the American people: “I have no involvement with Russia”—the recurrent lie that Cohen’s plea exposed—concealed a deep business conflict that the American people had a right to know about. As president, he has continued to defraud the public in the regular, nonlegal sense of the term. To take just one recent example among dozens, last month he deployed soldiers to the border to—he claimed—keep the country safe from the “migrant caravan,” but his rather transparent goal was to gin up a hysterical fear of refugees that might serve him in the midterm elections.
Years ago, I was lead counsel on a case against a for-profit college that used boiler-room tactics to drive up enrollment (and pocket federal grants), paying recruiters by the body. In so doing, it wreaked havoc on the lives of many young people who wound up with a useless degree and enormous debts. The fraud charges centered on the defendants’ false representations to the Department of Education. We caught them in a lie, in other words, but describing the offense as one of “process” wouldn’t begin to capture the defendants’ venality, or the harm done to their victims.