There’s a lot of nuance to the practice of criminal law, but all those fuzzy, creative, ingenious aspects rest atop a straightforward foundation. A lot goes down over the course of a prosecution, but from jump, the government takes the elements of a crime and engages in some plug-and-play, inserting factual allegations into those elements.
And this Department of Justice can’t even get that right.
Earlier this week, Acting Attorney General Todd Blanche announced that DOJ secured an indictment of the Southern Poverty Law Center that was not at all hurriedly rushed out the door to distract from FBI Director Kash Patel’s new “J. Edgar Boozer” nickname. The half-baked theory behind the case is that the group’s payments to confidential informants within hate groups amounted to a vast conspiracy to manufacture hate crimes to justify the SPLC’s own existence. That sounds too ridiculous to believe, but it’s reached what you’d call shibboleth status over on Elon Musk’s X. Or you would call it that, except they also hate Jews over there.
In reality, SPLC pays informants to gather intel on hate groups, which it then shares with law enforcement, in order to undermine those groups. It obscures the payments to protect its sources. The DOJ this week dropped a friendly message to every extremist group in America that they might have moles to smoke out.
Among the SPLC’s “crimes” is a form of bank fraud. But it’s not the standard bank fraud statute, because bank fraud requires showing a scheme to actually defraud a financial institution of money or property, which becomes a non-starter when the “fraud” is “opening a checking account under a shell company name so the Klan doesn’t murder your source.” So, the government turned to the little used bank deception statute — 18 U.S.C. § 1014 — that criminalizes knowingly making false statements for the purpose of influencing a bank’s action on an application, loan, or agreement. This is the basis of four counts in the 11-count indictment.
And the DOJ forgot one of the elements.
As Bloomberg Law News points out:
Although the indictment states that SPLC “knowingly” made false statements in bank applications, there’s no specific mention of what action by the bank the statements sought to influence. Including such intent should’ve been “prosecution 101,” said Scott Armstrong, a former supervisor in DOJ’s criminal fraud section.
Amateur hour.
“To have a complete absence of the required intent — in four counts — is a major, major omission that I think will be troubling to the court and really open the door to whether in fact the grand jury was instructed properly,” Scott Armstrong, a former supervisor in the DOJ criminal fraud section, told Bloomberg Law. He called it “prosecution 101,” which is a misnomer because remembering every element is a lesson that law schools should instill long before someone starts prosecutor boot camp.
The indictment also repeatedly characterizes the statements at issue as “false or misleading.” Apparently, the DOJ is missing a pocket part, because last year’s Supreme Court decision in Thompson v. United States held that § 1014 does not reach merely misleading statements.
This is bullshit, because that’s not how grand juries work. Federal grand juries aren’t making up crimes to pursue. The Department of Justice makes allegations and the grand jury accepts or rejects them. Blanche was quite literally “alleging it.” But if this indictment skipped elements and gave the grand jury incorrect instructions, maybe his misunderstanding of grand juries runs even deeper.
The government can, they say, indict a ham sandwich, but this DOJ has struggled to clear even the notoriously low bar presented by a grand jury.
The DOJ can fix this with a superseding indictment. You know, after they aren’t feeling rushed to change the topic from the fact that reports of Patel’s drinking habits caught him like a cross-eyed deer in headlights. But it’s still embarrassing.
And, of course, the Trump administration doesn’t necessarily care about winning this case. It already got most of what it came for once the administration’s fellow traveler hate groups knew they had moles and the SPLC lost its ability to pay or even recruit future informants. None of that requires a conviction, or even making it to trial. The damage was done at the press conference.
DOJ Omits Crucial Element in Southern Poverty Law Center Charges [Bloomberg Law News]
Earlier: Trump DOJ Indicts Civil Rights Group For Working To Take Down Hate Groups
Kash Patel’s $250 Million Defamation Lawsuit Looks Better With Beer Goggles
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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