The key question regarding the fraud in this sort of case would normally be what the fundraisers’ intent was at the time they raised the money, not how they handled circumstances that developed later. If Bannon and others took in money with the best intentions, but later decided to part with promises made at the outset, that might be breach of contract or run afoul of charity rules. However, it isn’t typically prosecuted as criminal fraud.
Museums, for instance, often make promises they find difficult to keep about where donated art will be displayed or whether it will be displayed at all. That can lead to protracted litigation, but not criminal prosecution unless there was some trickery from the outset.
To address this potential defense, prosecutors have tried to move the starting line away from when the project kicked off on GoFundMe in December 2018. In fact, a close reading of the indictment shows that the claimed victim of the fraud is not donors, but GoFundMe itself.
And the charges don’t accuse Kolfage and others of having criminal intent early on, but of developing a scheme to try to get the crowdfunding site to part with the $20 million that had accumulated.
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