President Trump’s defender-in-chief, Rudolph W. Giuliani, departed from his client’s usual mantra of “no collusion” on Monday by arguing that even if the Trump campaign colluded with Russia, that is not a crime. On Tuesday, Trump repeated on Twitter that “collusion is not a crime.” While he and Giuliani are technically correct, that’s only because collusion is a rubric that in fact encompasses many crimes. As criminal law experts with a collective century of experience prosecuting and defending criminal charges, we believe the sudden pivot to this baseless legal defense signals concern among Trump and his attorneys about emerging evidence that will show collusion.
That term has come to be shorthand for the possibility that the Trump campaign, its advisers or the president himself coordinated with Russia, a hostile foreign power, to help Trump win the election. The argument that such coordination would be lawful is striking, including the fact that it follows 191 charges against 35 individuals and companies brought by special counsel Robert S. Mueller III, which have yielded five guilty pleas. Taken together, that work spells out the many crimes Russia committed to attempt to affect the outcome of the 2016 election.
That conduct was deeply illegal, and it logically follows that if the president or his campaign team actually worked with the Russians in connection with their efforts, they, too, could be liable. That is not only common sense: It is also the law, with a raft of specific “collusion” crimes implicated.
Many fall under the rubric of conspiracy: an agreement to further illegal action. The core federal conspiracy statute, 18 U.S.C. § 371, would be triggered here if there were any agreement by Trump or those around him with Russian agents to do something that the law forbids. For example, if in or around the infamous June 2016 Trump Tower meeting, the Russians and a Trump representative tacitly or explicitly agreed about the release or use of illegally obtained information, that could plausibly support a conspiracy charge. Indeed, there is already some evidence of just that, including Donald Trump Jr.’s infamous email that “if it’s what you say I love it.”
To take another example of a “collusion” crime, the special counsel’s February and July 2018 indictments against alleged Russian hackers charged them with conspiracy to defraud the United States. Their cyber-misconduct defrauded the government by interfering with federal elections. If Trump campaign operatives were a part of that — say, by coordinating the release of hacked DNC emails with Russian operatives or planning speeches or other campaign events around those releases — then the campaign, too, could plausibly be a part of the conspiracy to defraud the United States.
Again, there is already enough evidence to warrant searching review, such as the fact that within hours of the Russian offer of dirt, Trump announced a major speech promising revelations about his opponent (a speech that he would promise again the following week but never actually deliver). Such campaign encouragement of, or involvement in, illegal Russian activity would not just implicate conspiracy law. The Russian conduct appears to have violated federal anti-hacking statutes, such as the Computer Fraud and Abuse Act and the Wiretap Act. The Wiretap Act is especially relevant because we know that the Russians infected the DNC servers with malware that transmitted emails to the Russians’ main server in real time. They were literally intercepting communications, one of the precise activities the act criminalizes.
Even if members of the campaign didn’t encourage or direct that hack, they could still be subject to prosecution for aiding and abetting — in lay terms, helping — a violation of those statutes. Aiding and abetting liability could become a factor if, for example, campaign operatives took a step to make sure the Russians used the hacked materials in the best possible way. (Indeed, campaign aides could even have directly violated the Wiretap Act if they themselves used the contents of any illegally intercepted communication, if they knew or had reason to know the communication was intercepted illegally.)
Nor do the varieties of possible criminal “collusion” with Russia end there. If the president knowingly accepted something of value from the Russians, such as harmful information about his opponent, that could be an illegal contribution by foreign nationals. That is an election law crime. If he accepted that information in exchange for the promise of some action (like taking a more accommodating posture toward the Russian invasion of Ukraine) that he or his administration would take if his campaign proved successful, that could constitute an illegal quid pro quo — that is, bribery.
What if the Russians only informed the campaign about their plans to disseminate stolen emails and the campaign did something that interfered with the crime being uncovered? That could constitute the crime of misprision of a felony — essentially of hiding crimes. And if any money transfers were involved to further the collusion — like if the Russians wired money to the National Rifle Association to avoid FEC scrutiny — that could violate the money laundering statute. Both would be forms of illegally working with the Russians. In a word: “collusion.”
This list merely scratches the surface of the criminal collusion that may be under investigation. In addition, there is of course the coverup of the collusion, which implicates an entirely different set of crimes. Michael T. Flynn and George Papadopoulos have pleaded guilty to the crime of making false statements in connection with their dealings with Russia. If recent reports that the president knew about the Trump Tower meeting are true, then Trump Jr. could face similar charges based on his congressional testimony to the contrary.
Those reports are of course based upon Michael Cohen’s alleged willingness to testify about what Trump knew of the meeting with the Russians and when he knew it. It could well be that there is other corroborating evidence that Cohen has or the special counsel has gotten from other sources. There is also the corroboration offered by common sense: Given everything we know about the paterfamilias, it seems unlikely that no one would have told him about a meeting that was important enough to draw the entire senior leadership of the campaign.
As seasoned criminal law practitioners, we recognize when the tactic of arguing that facts do not constitute a crime is used. That typically happens only after it becomes clear that the prosecution will be able to prove the conduct at issue occurred. That makes it particularly interesting that the president and his lawyer are now reaching for the “collusion is not a crime” defense, after the reports that Cohen will say Trump knew of the Trump Tower meeting.
At any rate, there can be no question of the legitimate law enforcement interest in investigating the many “collusion” crimes that may have been committed. The American people have a fundamental right to know if the president of the United States worked with Russia to win the election and undermine American democracy. The president and his lawyers’ embrace of the extraordinary defense that such collusion would be entirely lawful raises an obvious question: Why are they so busy defending collusion if there was none?