this
case
with
air
quotes
is
apt.
Photographer:
Graeme
Sloan/Bloomberg
via
Getty
Images
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
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editor
at
Above
the
Law
and
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of
Thinking
Like
A
Lawyer.
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