Is “Collusion” a Crime?

And the plot thickens…The web of entanglement between President Donald Trump and Russia continues to get murkier. In mid-July, Donald Trump Jr., the President’s son, revealed that he, along with President Trump’s campaign manager, Paul Manafort, and the president’s son-in-law, Jared Kushner, chairman for his 2016 presidential election campaign, met with a Russian government lawyer, Natalia Veselnitskaya, in June of 2016.

Prior to the meeting, a mutual friend of President Trump and a former Russian business partner who is a close ally of Russian President Vladimir Putin, emailed Trump Jr., letting him know that Veselnitskaya would provide official documents and information that would implicate President Trump’s opponent, Hillary Clinton and her “dealings” in Russia. Trump Jr. responded to the potential meeting with, “If it’s what you say I love it, especially later in the summer” and agreed to meet with Veselnitskaya. [1]

Soon after, Trump Jr., Manafort, and Kushner all met with Veselnitskaya on the 25^th floor of Trump Tower for twenty minutes. According to Trump Jr., the meeting was useless. More than a year later though, Trump Jr.’s revelation has unleashed a tidal wave of speculation about what happened and the legal ramifications of this meeting.

While there has certainly been a lot of talk, analysis and speculation about the meeting, did any of the meeting attendees break any laws by agreeing to meet with Veselnitskaya? Which laws are even implicated here?

Several media members and many opponents of President Trump have thrown the charge of “collusion” about, arguing that Trump Jr. and his associates committed this “offense.” But what exactly is “collusion” and is it illegal?

The term “collusion” is defined as “concerted activity toward a common purpose.”[2] The colloquial connotation of the word indicates that people who “collude” have worked together, usually in secret, to do something illegal. Still, other than in an antitrust context, “collusion” is not the name of a crime. (In antitrust law, two product sellers who conspire to set the price for goods may be guilty of “collusion,” but that is obviously not relevant here.) Former federal prosecutor Andrew McCarthy recently wrote that “collusion is a hopelessly vague term.”[3] There is no federal law that criminalizes collusion between a political campaign and foreign government. Even though “colluding” with a foreign government, especially one as hostile as the Russian government may be inappropriate or politically damaging, it’s not illegal. In this sense, collusion is viewed as a political term and not a legal term. As a result, Trump Jr, Manafort, and Kushner could not be prosecuted under a charge called “collusion.”

Still, evidence of this meeting and its alleged content could be used in the prosecution of other crimes.

Campaign Finance Law Violations

The campaign election law that is implicated here is 52 USC § 30121. There are two relevant parts of the statute.

The first is Part (a)(1)(A), which reads:

“It shall be unlawful for—

      (1) a foreign national, directly or indirectly, to make—

         (A) a contribution or donation of money or other thing of value, or to make an express or                implied promise to make a contribution or donation, in connection with a Federal, State,                or local election.”

This law extends beyond cash donations, as evident by the “other thing of value” language.[4] Paul Rosenzweig, a former deputy assistant secretary for policy at the Department of Homeland Security, writes that “opposition dirt is at least plausibly a thing of value.” The “opposition dirt” Rosenzweig refers to is damaging information that the Russian government may have collected about Hillary Clinton and her dealings in Russia. In other contexts, federal courts have broadly interpreted the phrase “thing of value.” Courts have held that “thing of value” includes intangibles, such as amusement, sexual intercourse, a promise to reinstate an employee, and information.[5] It’s not inconceivable that this could be interpreted to include damaging information on an election opponent.

The second part is (a)(2) of 52 USC 30121. That part provides:

               “It shall be unlawful for—

              (2) a person to solicit, accept, or receive a contribution or donation… from a foreign                   national.”

The word “solicit” has a very specific meaning in this context. Election law expert Rick Hasen has said that “solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.” If Trump Jr. asked Veselnitskaya to provide “anything of value” on Clinton, then it could be found that he illegally solicited a foreign national to provide a campaign contribution.[6] Even assuming Trump Jr. was not successful in actually obtaining any useful information, the very act of meeting with the Russian attorney in an attempt to do so could qualify as the crime of solicitation under the statute. Some critics may argue that a solicitation occurred because Trump Jr. knew that the purported damaging information, which was something of value, was coming from a foreign national associated with the Russian government.

Making False Statements

Section 1001 of Title 18 of the United States Code makes it a federal crime to “knowingly and willfully” make any false, fictitious, or fraudulent statement or representation to conceal material information “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” [7]

Jared Kushner, who has a White House security clearance and is a senior adviser to President Trump, could be charged with making false statements if he had deliberately omitted the fact that he had met with a Russian official in completing his security clearance forms.[8]

When filing an application to gain his security clearance, Kushner was required to disclose any meetings and contacts with foreign nationals. When he filed his application, he did not initially disclose the June meeting. This omission on Kushner’s part could qualify as a crime under Section 1001. Kushner could counter that this was an inadvertent omission or that he accidentally forgot to disclose the meeting as the statute requires criminal intent, but it might be difficult for Kushner to successfully assert this defense. The email thread setting up the meeting had a heading of “Russian-Clinton-private and confidential.”[9] Such an email subject and such a meeting, prosecutors would argue, isn’t easily forgotten.

Conspiracy

“Conspiracy” is a “catch-all” crime that applies to plans to commit many different types of illegal acts. A conspiracy is an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement’s goal. In most jurisdictions, at least one conspirator must undertake an “overt act” taken towards furthering the agreement (this requirement is there to distinguish mere “talk” from a real plan to commit illegal acts).

The general federal conspiracy statute is 18 U.S.C. § 371. This statute states:

“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

Applying this to our case, the participants in the Trump, Jr. meeting could be guilty of conspiracy even if they committed no crimes, but conspired with those with whom they met to break laws. For example, if it can be established that the Russian government intended to illegally help the Trump campaign by providing compromising and damaging information about Clinton and if Trump Jr. and Veselnitskaya, on behalf of the Russian government, agreed to work together to achieve this illegal goal, then conspiracy may apply.

It could be argued that Trump Jr. and his associates violated this federal law because they agreed to meet with Veselnitskaya to gain knowledge that would defraud the United States, which includes conspiracies to impede the lawful functions of the federal government. If Trump Jr. and the Russian attorney had agreed to share damaging information regarding the Democratic candidate, then this could impede the administration of a presidential election, which is a lawful function of the federal government.[10]

However, the single fact that Trump Jr. met with the Russian attorney might not be enough to demonstrate that a conspiracy has taken place. Prosecutors would have to collect more evidence through electronic discovery collection of emails and grand jury testimony that there was more collaboration, discussion, and cooperation between Trump Jr. and the Russian government.

Moreover, it is unclear that interfering with an election (even with false information) constitutes the crime of fraud. In United States v. Gradwell, a 1917 case, the United States Supreme Court held that a conspiracy to influence a congressional election by bribery of voters was not a conspiracy to “defraud” the United States under the meaning of the code since it is the state governments, not the federal government, that administers elections.

It must also be noted that merely promoting or disseminating false information about a political candidate is political speech protected by the First Amendment. As the Supreme Court said in the 2012 case, United States v. Alvarez,[11] false political statements are protected speech, a holding that “comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.” Just showing that the Russians intended to lie about Hillary Clinton would be insufficient. The government would have to show that they intended to commit a more specific federal crime to implicate Trump, Jr.

The saga of Russian involvement in the 2016 United States presidential election has taken more twists and turns than the plot of a mystery novel. It doesn’t look like the issues will be resolved any time soon.