What Is Collusion? Is It Even a Crime?: Guest Post Politico Magazine

The president’s son met with a Russian lawyer offering damaging information about Hillary Clinton. Does that mean the campaign colluded with the Kremlin? We asked legal experts to size up the evidence.

By POLITICO MAGAZINE 

July 12, 2017

President Donald Trump has repeatedly denied colluding with the Russian government during the 2016 campaign. Yet, the revelation of a meeting last year—between his son, his campaign chairman, his son-in-law and a Russian lawyer who promised damaging information about Hillary Clinton from the Russian government—suggests that the question of collusion is an open one; according to emails arranging the meeting, Trump’s son Donald Jr. was aware of that promise and said in response, “I love it.” And, of course, special counsel Robert Mueller is still investigating this very matter.

But what precisely would constitute collusion between Russia and the Trump campaign, and have we actually seen evidence of it so far? We asked legal experts—former federal prosecutors, law professors and more—to help make sense of the situation based on the evidence that has been made public so far. Most were quick to note that collusion itself is not a specific federal crime—what matters is what kind of cooperation might have taken place and in what way. As to whether collusion did occur or a crime was committed, they said the jury is still out.

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‘Stop using “collusion” as a short-hand for criminality’

Paul Rosenzweig is former deputy assistant secretary for policy at the Department of Homeland Security and founder of Red Branch Consulting.

Collusion is not a federal crime (except in the unique case of antitrust law), so we should all just stop using “collusion” as a short-hand for criminality. But that doesn’t mean that the alleged cooperation between the Trump campaign and Russia is of no criminal interest. To the contrary, if true, it may have violated any number of criminal prohibitions.

For example, if Donald Trump Jr. sought “dirt” on Hillary Clinton from the Russians, he might be charged with conspiring to violate the election laws of the United States, which prohibit foreign nationals from contributing any “thing of value” to an electoral campaign. The opposition dirt is at least plausibly a thing of value. And to the extent that the Trump campaign aided, abetted or advised the Russians (or any other hackers) about what would be most useful to steal from the Democrats or how best to enhance the impact of their release, they may well have violated the Computer Fraud and Abuse Act.

Of course, none of this excuses the apparent cover-up, which is often as bad as the original crime. Lying to the federal government in your registration forms or your security application is a false statement. Using the wires to perpetrate your crime is often wire fraud. In short, let’s stop talking about “collusion” and instead talk about real crimes that may, or may not, be proven—violations of election law, computer hacking, false statements and wire fraud.

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Collusion ‘doesn’t accurately describe either the criminal and counterintelligence aspects of what we know’
Asha Rangappa is an associate dean at Yale Law School and a former special agent in the Counterintelligence Division of the FBI.

The word “collusion” has been a terrible one to use in the Trump-Russia saga, since it doesn’t accurately describe either the criminal or counterintelligence aspects of what we know. On the criminal side, the word that would best describe an agreement between the Trump campaign and Russia to commit any number of crimes (say, election fraud) would be “conspiracy”—something that the recent release of Donald Trump Jr.’s email chain might support.

On the counterintelligence side, collusion is best described by the word “recruitment.” The aim of a foreign intelligence service is to find and convince individuals to help them achieve intelligence objectives. In the case of the election, the question is whether Russia was able to recruit American citizens, including people in the Trump campaign, to help them sway the outcome in Donald Trump’s favor. We are less likely to get direct public evidence of this since most of the information obtained by the FBI about Russia’s network and tactics will be classified unless someone is prosecuted for a crime.

But we have some clues that Russia may have been successful, such as Paul Manafort and Michael Flynn officially registering as foreign agents under the Foreign Agent Registration Act, or reports of a FISA order against Carter Page, which could only be obtained by showing a court that he was “knowingly engaged in foreign intelligence activities” on behalf of a foreign power. Even so, the criminal penalties for spying for a foreign intelligence service in non-defense-related areas are fairly weak, and I expect that Robert Mueller and the FBI will likely use any prosecutorial leverage they have over these individuals to get people higher up the chain for potentially more egregious criminal violations. The story is definitely not over, so stay tuned.

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‘Collusion is the perfect word to cover such crimes’
John W. Dean was Richard Nixon’s White House counsel. He served a four-month sentence for his role in Watergate.

It was the fake legal analysis by Fox News in June—claiming that “collusion” with a foreign government violated no law—that prompted me to look. Surely Fox knows it fooled only fools. Collusion is the descriptive word the news media has settled on to cover many potential illegal actions by the Trump campaign, which could range from aiding and abetting (18 USC 2) to conspiracy per se (18 USC 371) to conspiring to violate several potentially applicable laws like: 18 USC 1030—fraud and related activity in connection with computers; 18 USC 1343—wire fraud; or 52 USC 30121—contributions and donations by foreign nationals. Also, 18 USC 2381—for, contrary to a widespread belief that there must be a declared war, the Justice Department as recently as 2006indicted for “aid and comfort” to our enemies, the form of collusion better known as treason. Collusion is the perfect word to cover such crimes, pejorative and inclusive.

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‘Legally it’s not enough for an associate of the president to work together with a Russian’
Renato Mariotti is a former federal prosecutor who handled many obstruction cases. He is now a partner at Thompson Coburn LLP.

Although “collusion” is a word that has been thrown around a lot lately, it doesn’t have any specific legal meaning. What matters legally is whether someone in the Trump campaign joined a conspiracy, aided and abetted a crime, or actively concealed a crime. None of these legal concepts is complicated. A conspiracy is just a legal term for an agreement to commit a crime. You aid and abet a crime if you know about criminal activity and actively try to make it succeed. There is also a crime called “misprision of felony” that means you know that a felony has been committed and you actively work to conceal the crime.

So legally it’s not enough for an associate of the president to work together with a Russian—the American would need to work with a Russian to commit a crime, to aid a Russian in committing a crime or to conceal a crime committed by a Russian. One crime that has been discussed at length in the media is the hacking of servers in the United States and subsequent release of emails via WikiLeaks. Anyone who aided in the hacking of those servers committed a crime

But that isn’t the only crime that has been alluded to in press reports. Recently Donald Trump Jr. admitted that he met with a Russian attorney to obtain damaging information about Hillary Clinton. If he or someone else knowingly and willfully solicited a contribution from a foreign national in order to aid the Trump campaign, that would be a crime. Similarly, receiving property that you know is stolen is a federal crime if the value of that property is at least $5,000. It’s unclear whether leaked emails would suffice, but I suspect that the Clinton campaign would have paid far more than $5,000 to prevent their release. It would also be a crime for someone to offer to act in an official capacity, by repealing a law or discontinuing sanctions against Russia, in exchange for something of value.

It’s important to keep in mind that what we know so far is very limited. While Trump Jr. recently confirmed that he met with an attorney who was connected with the Russian government, little is known about what was said at that meeting. In the months to come, I expect Robert Mueller and his team to interview everyone involved and gather documents, emails and other communications in order to obtain the fullest possible picture of what happened. This investigation will take significant time to complete, and it’s best to wait for all the evidence before coming to conclusions.

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‘The more likely crimes have occurred through false and misleading statements’
Laurie L. Levenson is professor of law and David W. Burcham chair of ethical advocacy at Loyola Law School. She was formerly an assistant U.S. attorney in Los Angeles.

I honestly don’t know whether the so-called collusion in this case was a crime, in part, because this story keeps morphing. Trying to get dirt on an opposing candidate is not necessarily a crime. However, making false statements to government officials can be. I think the more likely crimes have occurred through false and misleading statements to government officials throughout this probe, but Robert Mueller will have to determine whether that occurred. Generally, it is the easiest crime to prove.

Finally, it is good to keep in mind that there is no crime of “collusion” in the federal code. The applicable crime is conspiracy under 18 USC Sec. 371. That would cover a conspiracy by two or more persons to violate a law of the United States or “to defraud the United States.” You need an election law specialist to tell you whether asking the Russians for negative information on Hillary Clinton violated federal law. The question of whether there has been a scheme “to defraud the United States” is a more interesting one. Generally, that portion of the statute is used for financial crimes. However, who knows what a creative prosecutor might seek to use it for?

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‘It is not clear that it provides a basis for criminal prosecution’
William Jeffress is a white-collar defense attorney at Baker Botts. He represented I. Lewis “Scooter” Libby in the Valerie Plame affair.

If the Trump campaign conspired with or assisted the Russians in hacking the emails of John Podesta or the Democratic National Committee, the crime is clear. But beyond that, it is anything but clear. We do not have a federal statute punishing corrupt efforts to influence an election, unless done by particular prohibited acts such as vote buying or illegal political contributions. That is undoubtedly wise, because such a law would spur frequent criminal complaints against opponents by losers and even some winners of elections.

There is a statute punishing conspiracies to defraud the United States, including conspiracies to interfere with a governmental function by fraud. Special counsel Robert Mueller will surely focus on whether a conspiracy to interfere with the right to honest elections is a crime, but the question is greatly complicated by the 100-year-old Gradwell case; that case refused to apply the statute to interference in elections for senators and representatives, because the Constitution and laws assign to the states, not the federal government, the regulation of elections for those offices. It would not be a large step to say the same is true of the election of the Electoral College in presidential elections.

Collusion with the Russians in attempting to affect the outcome of the presidential election is a serious political scandal, but I must say it is not clear that it provides a basis for criminal prosecution. It may be that, like other investigations in the past, people may get in more trouble for false and misleading statements to investigators than for the underlying conduct.

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‘A nothing burger with some secret sauce’
Saikrishna Prakash is James Monroe distinguished professor of law at the University of Virginia.

There are tidbits worth investigating here. For one, why did the convener of the meeting say that the meeting was “part of Russia and its government’s support for Mr. Trump?” After all, the lawyer from Russia now claims she is not a government lawyer. Moreover, does the statement suggest knowledge on the part of the Trump campaign about support from the government of Russia? I’m certain Congress and Robert Mueller will want to probe.

But I don’t think this really amounts to much, at least as a legal matter. “Collusion” is not a cognizable federal offense. Politicians seek dirt on other candidates—the dirtier the better. That is what “opposition research” is all about.

Campaigns are happy to get this edge from pretty much anywhere. Indeed, there are claims, discussed in a Politicoarticle in January, that the Ukrainian government sought to aid Hillary Clinton’s campaign by supplying damaging information regarding Trump campaign chairman Paul Manafort to a Democratic operative. Embassy officials “worked very closely” with the operative to expose Manafort’s work for Viktor Yanukovych, the Kremlin-backed former Ukrainian president. And the Democratic National Committee encouraged the operative to meet with the Ukrainian ambassador.

I think that those who despise President Donald Trump continually find ways of nourishing their deep abhorrence. If it is not “collusion,” it is “treason” or “conflict of interest” or “obstruction.” The wheat, if there is any, gets lost amid all the chaff. Those who lionize the president are in the lamentable business of excusing conduct, no matter if it demonstrates extremely bad judgment, poor taste or worse. Both tendencies will continue for the foreseeable future.

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‘Very strong evidence of a nascent conspiracy’
Samuel Buell is a law professor at Duke University and a former federal prosecutor who led the Justice Department’s prosecution of Enron Corporation.

Collusion, of course, is not a legal thing. The question of the underlying crime here might be tricky, and would include possible violation of campaign contribution laws. But if there is an underlying campaign violation in play legally, the email and meeting are very strong evidence of a nascent conspiracy and attempt to commit such an offense. Contemporaneous emails don’t lie when it comes to jury trials. What pro-Donald Trump spinners were calling a “nothingburger” yesterday has become a Whopper. 

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‘It will be important to distinguish between the political and the legal discussion’
Carrie Cordero is an attorney in private practice, adjunct professor at Georgetown Law and former counsel to the assistant attorney general for national security.

As this story and the related investigations unfold, it will be important to distinguish between the political and the legal discussion. Collusion is the political term that is being used to described the overall inquiries into whether the Trump campaign assisted, cooperated or collaborated with Russian government efforts to influence the outcome of the 2016 election. There is no real question that the Russian government conducted such an influence campaign—the intelligence community released information of its assessment in the fall of 2016, and the Trump administration’s director of national intelligence has also supported that assessment.

The questions that remain, then, are, what was involved in that influence effort, and what if any role the Trump campaign had in supporting, assisting or collaborating in it. The emails released Tuesday by Donald Trump Jr. reveal that, at least in preparation for one meeting that took place in June 2016, he was informed that the Russian government was engaged in activities to “support” the Trump campaign. The ongoing investigations will explore this and the other revelations in those emails from the legal perspective of whether members of the Trump campaign conspired to affect the election through fraudulent means, violate the campaign finance restrictions against receiving financial or other items or services of “value” from foreign nationals, or otherwise aided and abetted activities conducted by the Russian intelligence services on behalf of the Russian government.

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‘Evidence suggests an interest within the campaign in receiving assistance from Russian sources’
Alex Whiting is a professor at Harvard Law School focusing on domestic and international criminal prosecution issues, and was formerly a federal prosecutor.

Collusion will likely come in the form of the solicitation or encouragement of any improper assistance to the Trump campaign from a foreign source, in this case from Russia. If Trump campaign officials encouraged Russian nationals to dig up information about Hillary Clinton or her campaign and provide it to the Trump campaign, that could amount to a violation of campaign finance laws, which prohibit foreign sources from providing something of value to a U.S. election campaign. The solicitation or encouragement might not be in the form of a direct, explicit request, but might be communicated implicitly, as long as there is evidence of an intent to obtain such improper assistance. The proof may rely on circumstantial evidence of a series of meetings or communications amounting to encouragement.

The evidence that has emerged so far—in particular the meeting that Donald Trump Jr., Jared Kushner and Paul Manafort had with the Russian lawyer in June 2016—suggests an interest within the campaign in receiving assistance from Russian sources. It remains to be seen whether this interest crossed over into intentional solicitation or encouragement of such assistance. 

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‘Donald Trump Jr. has helped the prosecution by establishing motive’
Peter Zeidenberg is a partner at Arent Fox and served as an assistant special counsel in the prosecution of I. Lewis "Scooter" Libby.

I do not think the meeting, in and of itself, establishes a crime. But, by admitting that he sought the meeting in hope of obtaining damaging information about Hillary Clinton, Donald Trump Jr. has helped the prosecution by establishing motive to explain whatever conduct the government uncovers: Trump Jr. was looking for dirt on Clinton, and was looking to Russians to provide it. It will be very difficult for him—and, given their presence at the meeting, Paul Manafort or Jared Kushner—to now claim that they were not interested in getting damaging information from Russians.

The actual email itself is incredibly damaging to not just Trump Jr., but also to Manafort and Kushner, who clearly knew the purpose of the meeting and went ahead with it. This establishes motive and state of mind for all three. A successful prosecution would have to show evidence that there was a quid pro quo: a promise of sanctions relief in exchange for Russian help with dirt on Hillary Clinton. And it would seem that those pieces are just lying around waiting to be put into the puzzle to complete this picture.

There is another problem with Trump Jr.’s story as well. His claim that they “only” spoke about the adoption issue does not help him at all. Russian adoptions were stopped by Vladimir Putin because of sanctions put in place by the U.S. government. So it would be almost impossible to discuss the adoption issue without discussing the sanctions issue. It seems very likely that much of what was motivating Russia to help Donald Trump win was because it wanted sanctions relief. So this story is damaging to the president for that reason as well. It is another important piece of a puzzle that special counsel Robert Mueller will be assembling.

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‘There is no federal law that criminalizes collusion. That does not mean that there are no possible crimes’
Mark S. Zaid and Bradley P. Moss are national security attorneys based in Washington, D.C.

There is no federal law that criminalizes collusion, in and of itself, between a political campaign and a foreign government. It’s highly unethical and inappropriate, but we do not believe Congress has ever chosen to specifically identify that legal term of art in a criminal statute in this context.

That does not mean that there are no possible crimes to be investigated. For example, campaign finance laws could have been violated, especially depending on whether any “coordination” or “collusion” involved exchanges of funds or “things of value” between the Russians and the Trump campaign. The Computer Fraud and Abuse Act could have been violated if members of the Trump campaign assisted in or coordinated the dissemination of the emails stolen from the Democratic National Committee or John Podesta, Hillary Clinton’s campaign chair.

What has been leaked to the press so far are all fragments of possible lines of criminal inquiry. They neither complete the picture for possible prosecution, nor rule out the idea that prosecutions could come about.

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‘Seeking to obtain the work product of a prior hack would be no more criminal than a newspaper publishing the Pentagon Papers’
Alan Dershowitz is emeritus professor of law at Harvard University.

Which criminal statutes, if any, would be violated by collusion between a campaign and a foreign government, if collusion were to be proved? Unless there is a clear violation of an existing criminal statute, there would be no crime. Obviously, if anyone conspired in advance with another to commit a crime, such as hacking the Democratic National Committee, that would be criminal. But merely seeking to obtain the work product of a prior hack would be no more criminal than a newspaper publishing the work products of thefts such as the Pentagon Papers and the material stolen by Edward Snowden and Chelsea Manning. That is why the entire issue of alleged collusion with, and interference by, the Russians should be investigated openly by an independent nonpartisan commission, rather than by a prosecutor behind the closed doors of a grand jury. 

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‘Trump Jr. may be counting on his father to excuse him from criminal liability’
Kathleen Clark is a law professor at Washington University in St. Louis specializing in legal ethics.

U.S. election law prohibits foreigners from providing assistance to U.S. political campaigns, and prohibits anyone from soliciting such foreign assistance. It is through the lens of that law that I have followed the developments of the past few days about the June 9, 2016, meeting between Donald Trump Jr. and Russian lawyer Natalia Veselnitskaya.

If the emails leading up to the meeting that Trump Jr. released Tuesday morning are genuine, they are damning. In the first email, a business associate wrote Trump Jr. and indicated that a Russian government official “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] ... and would be very useful to your father.” This email was offering assistance that would violate U.S. law. But rather than rebuff the offer, Trump Jr. expressed enthusiasm for it, and even suggested when the information should be disclosed to the public: “Seems we have some time and if it is what you say I love it especially later in the summer.” Trump Jr. may be counting on his father—and the presidential pardon power—to excuse him from criminal liability for what he disclosed Tuesday morning.

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‘Evidence might establish other crimes’
Norman Eisen is a senior fellow at the Brookings Institution. He was the chief White House ethics lawyer from 2009 to 2011 and ambassador to the Czech Republic from 2011 to 2014.

Collusion simply means that Donald Trump, his campaign or their representatives were working with Russia or its agents to affect the campaign. There is no crime of collusion, but if it were proved, that evidence might establish other crimes, such as conspiracy to commit cybercrime (with respect to hacking) or campaign finance violations (with respect to soliciting a thing of value from a foreign government, namely damaging information). Evidence of possible collusion is starting to come in, include Roger Stone’s contacts with “Guccifer”; actions by a GOP activist, Peter Smith, who apparently sought help from Russia and named campaign officials in related documents; and, of course, the just revealed emails and conduct of Donald Trump Jr., Paul Manafort and Jared Kushner in meeting a Russian lawyer.

Views: 35

Comment by Terry McKenna on July 13, 2017 at 3:21am

The law (and so legal documents) use language that has meaning frozen in time and is often obsolete except in the law. Where but in a legal document would one see remise, or use heirs and assigns.  And the legal meanings expand or contract with decisions of courts of appeal.  But what we do know is that the president and his team have violated the norms of behavior for any other president.  That is enough for me. 

Comment by Ron Powell on July 13, 2017 at 3:45am

Very well said Terry, very well said indeed.

Comment by JMac1949 Today on July 13, 2017 at 5:45am

If a case can be made to indict and convict so be it; but so far as I know hubris and collusion are not crimes.  FEC violations seldom result in more than a weak slap on the metaphorical wrist.

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