There were reports last week that former Trump attorney Michael Cohen would testify, contrary to repeated White House denials, that President Trump knew of and approved the infamous Trump Tower meeting in June 2016, when Donald Trump Jr., Jared Kushner and other campaign officials met with Russians offering damaging information about Hillary Clinton.
Faced with this new evidence of what looks remarkably like colluding with the Russians, the president’s defense has returned to the claim that any such collusion, even if it happened, would not be a crime. On “Fox and Friends,” Trump attorney Rudolph W. Giuliani recently said, “I have been sitting here looking in the federal code trying to find collusion as a crime. Collusion is not a crime.” The president himself picked up on the theme, tweeting: “Collusion is not a crime, but that doesn’t matter because there was No Collusion (except by Crooked Hillary and the Democrats)!”
It’s unclear how the term “collusion” became so embedded in the public narrative about the Russian attacks on our election. But what is clear is that the unfortunate prevalence of the term has given the president’s legal team another tool with which to sow confusion and mistrust about special counsel Robert S. Mueller III’s investigation. After all, if collusion is not a crime, why is Mueller spending all this time and money investigating it? It must be a witch hunt!
It’s true there is no crime called “collusion.” It’s also irrelevant. What matters in criminal law is the facts, not the precise terms used to describe what happened. Saying the president is off the hook because there is no crime called “collusion” is akin to claiming the president could shoot someone on 5th Avenue and escape prosecution because the criminal statutes prohibit “homicide” not “shooting.”
Collusion is generally defined as a secret agreement to work together towards some illicit end. As I pointed out more than a year ago when this argument first surfaced, in criminal law this describes a potential conspiracy. A criminal conspiracy exists when two or more people form an agreement to pursue an unlawful goal and at least one of them takes some action in furtherance of that agreement. The federal conspiracy statute, 18 U.S.C. 371, prohibits conspiracies to defraud the United States and conspiracies to commit an offense against the United States. Both charges are potentially relevant here — and Mueller has already deployed both.
Conspiracy to defraud the United States includes an agreement to impair, obstruct, or defeat the lawful functions of the federal government. This could include, for example, an agreement with the Russians to interfere with the Federal Election Commission’s administration of federal election laws. Indeed, this type of conspiracy was the lead charge in February’s indictment of 13 Russian individuals and three Russian companies for interfering with the election largely through social media. That indictment charges the defendants “intentionally conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions” of the FEC, the State Department and the Justice Department by making illegal campaign contributions, obtaining visas under false pretenses and failing to register as foreign agents.
Conspiracy to commit an offense against the United States is defined as a conspiracy to commit any federal crime. The lead charge in the indictment of 12 Russian intelligence officers this month was conspiracy to violate the federal laws against computer hacking. Such a charge would also apply to any agreement with the Russians to violate federal campaign finance laws by, for example, making illegal foreign contributions to the Trump campaign in the form of stolen Democratic emails.
With any conspiracy charge, the crime is the agreement itself. Prosecutors do not have to prove that the conspiracy succeeded or that any victim was actually harmed. They would not have to show the Russian efforts were successful or that the outcome of the election was changed. You can also conspire to help someone else commit a crime that you could not commit yourself; for example, Americans could conspire to help Russians violate the law against foreign campaign contributions even though, as American citizens, they are not covered by that law.
Working with Russians to influence our election through the use of stolen emails or other methods would be prosecutable under any number of theories. The argument that “collusion is not a crime” is nothing but a meaningless distraction. It’s time to bury it once and for all.