You seem to be missing or ignoring that he's not being charged with wire fraud or mail fraud or similar, where you would be right about the tangible value aspect. That would be under 18 U.S.C. § 1343, or § 1341. (Or, as you alluded to §1346) The way things apply to § 371 is different. As I showed before, in two cases before the Supreme Court it was specifically determined not to be a required in such a case.
Now I've no doubt as well that you're right and trump will attempt to appeal any and all verdicts against him, but he hasn't shown himself to be a genius of legal strategy thus far. Rather he's relied on outspending and intimidating people through the courts, which simply doesn't work when you're up against the government.
Respectfully, I understand exactly what you’re arguing. What you apparently missed was my pointing out that the definition of the word “fraud” in U.S. law *as a whole* is limited to money or tangible property/something of tangible worth.
So, some background on this, just so you’re clear:
In the decades after Haas and Hammerschmidt, prosecutors kept trying to stretch the definition of “fraud” to cover all sorts of deception. This meant that there was, theoretically, no limiting principle on what was vs what wasn’t fraud. In the world of criminal law, this is a problem because people could be charged arbitrarily for fraud despite there being no such intent.
So, enter the McNally case in 1987. The background was that the former chairman of the Kentucky Democratic Party conspired with a state official to have a contract for unemployment insurance awarded to a company secretly controlled by the chairman, with McNally as the front man. McNally argued (successfully) that the language of the statute itself did not say anything about “honest services” and when the Court reviewed the statute, agreed. The reasoning was that if Congress had intended for it to be covered, they needed to make it explicit and clearly defined (which is required of any criminal law).
Now, in the 2-person dissent, John Paul Stevens argued for the stance you take, namely that “fraud” should be interpreted far more broadly than just money or tangible property.The other seven justices disagreed, and so McNally stood while the more expansive interpretations from Haas and Hammerschmidt were rendered invalid.
So, we go to 1988 when Congress amends the statute in question to include “honest services.” However, once again, they failed to actually spell out what that meant and who it covered (public officials or private officers of companies) and what specific kind of conduct it prohibited (again, a no-no in constitutional law). More importantly, though, Congress did NOT explicitly make the kind of conduct Trump allegedly engaged in a crime under the fraud statute, and under the long-standing principle of “if it isn’t explicitly banned, it’s legal” in law, any interpretation by the courts would have to invalidate this interpretation…which is exactly what happened.
Now we come to 2010, and in Skilling, the Supreme Court ruled explicitly that “honest services fraud” only applies to schemes involving kickbacks or bribery.
The bottom line is that it doesn’t matter what Haas or Hammerschmidt say…they were rendered invalid by McNally and Skilling. Smith is trying to play games hoping the courts will rule differently this time around, but from a legal perspective it’s incredibly doubtful he will succeed here, and unless the composition of the Supreme Court changes before it gets to them (if it gets to them), any conviction would be struck down.
I say “if” because the D.C. Circuit would likely wind up on SCOTUS’ shit list if they tried to play games on this front. But seriously, when the best example a lawyer can cite is a case that’s 99 years old AND has been rendered invalid…they have a problem.
