Law professor lays out key reasons why Jack Smith could charge pro-Trump PAC with wire fraud

Former President Donald Trump's efforts to overturn the 2020 presidential election results have resulted in two separate criminal indictments: a federal case led by special counsel Jack Smith for the U.S. Department of Justice (DOJ), and a prosecution by Fulton County District Attorney Fani Willis for the State of Georgia.

Many legal analysts and cable news pundits have pointed out that despite their common ground, the cases are quite different in some respects. Willis' indictment is often described as "ambitious," "broad" or "sweeping," as 18 of Trump's allies are listed as co-defendants — while Smith's federal case is typically characterized as lean and mean and less complicated. And unlike Willis, Smith isn't using RICO laws to prosecute Trump.

In an article published by Just Security on August 24, law professor Ciara Torres-Spelliscy focuses on someone who, so far, isn't facing prosecution in either case: the pro-Trump political action committee Save America PAC. Torres-Spelliscy believes it is possible that Save America is a candidate for indictment for "fundraising off of the Big Lie" in November and December 2020 and January 2021.

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"Federal prosecutors have long relied on wire fraud when charging individuals with sundry campaign finance-related crimes," Torres-Spelliscy explains. "These prosecutions are bipartisan, charging Republicans and Democrats alike. For example, in 2023, the Department of Justice indicted Republican Congressman George Santos (NY-03)."

The law professor continues, "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."

Torres-Spelliscy points out that defendants running "scam PACs" have been convicted on criminal wire fraud charges. Many of Trump's defenders have been arguing that Smith and Willis' prosecutions are unconstitutional because Trump was merely exercising his 1st Amendment rights when he claimed that he won the 2020 election; Torres-Spelliscy emphasizes, however, that the U.S. Supreme Court has ruled that fraud is not constitutionally protected speech.

"So far, Special Counsel Jack Smith has not charged any actions related to fundraising using the Big Lie or the Big Rip Off," the law professor notes. "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."