William Safire writes:
“Whoever, having devised any scheme or artifice to defraud transmits or causes to be transmitted by means of wire, radio or television communication in interstate or foreign commerce, any writings for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.” [18 U.S.C. sec. 1343.] . . .
At the root of what is today treated as an embarrassing blunder by duped CBS journalists may turn out to be a felony by its faithless sources.
Some person or persons conceived a scheme to create a series of false Texas Air National Guard documents and append a photocopied signature to one of them. The perpetrator then helped cause the fraudulent file to be transmitted by means of television communication to millions of voters for the purpose of influencing a federal election. . . .
I don’t think that attempts to dupe voters into believe something qualify as attempts “to defraud.” The Supreme Court has held, in McNally v. United States (1987),
[T]he words “to defraud” commonly refer “to wronging one in his property rights by dishonest methods or schemes,” and “usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.” . . .
We believe that Congress’ intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes [i.e., frauds involving money and property]. . . . [W]e read [sec.] 1341 as limited in scope to the protection of property rights. . . .
Congress later provided that sec. 1343 also applied to “scheme[s] or artifice[s] to deprive another of the intangible right of honest services,” 18 U.S.C. sec. 1346, which allowed prosecutions of corrupt government officials whose conduct deprived the public of its right to the officials’ honest services. But Congress did not extend sec. 1343 to cover all deliberate lies, or even deliberate lies that are aimed at duping voters (or lies that give the liar access to campaign officials, which Safire suggests this lie might have done). So some statutes — see the posts noted below — might indeed punish such forgeries. But they aren’t as easy to find as one might like, and sec. 1343 isn’t one.
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