Judge: Collusion could be basis for criminal charge

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One rallying cry behind supporters of President Donald Trump when it comes to the Russia investigation is that even if there is evidence that the Trump campaign colluded with Russia, collusion itself is not a crime unless it was done through actions that were independently illegal. That means that if, for example, the Trump campaign was involved in the hacking of Democratic National Committee emails, that would be a problem because the hacking would be the illegal act. Merely talking to Russia or coordinating certain legal activities would not be a problem, the argument goes, because “collusion” itself is not illegal.

That last part may be true, but a recent opinion in case brought by Special Counsel Robert Mueller points out that there are situations where collusion in the form of even legal acts could still result in a criminal charge. Specifically, it’s the statute of Conspiracy to Defraud the United States.

“This court ruling should drive another nail in the coffin of the argument that collusion is not a crime. It clearly can be, and the crime is conspiracy – even if no other independent criminal violations are identified,” wrote Randall Eliason, a former federal prosecutor and lecturer at George Washington Law School. “Mueller’s use of that theory in his Russian social media indictment is a textbook example of a 371 conspiracy to defraud the U.S., and that theory has now been validated by the trial judge’s ruling.”

As U.S. District Judge Dabney Friedrich explained in his opinion last week, there are two ways to violate 18 U.S.C. 371. One can either “conspire … to commit any offense against the United States,” which is conspiracy in the traditional sense, or one can conspire “to defraud the United States, or any agency thereof in any manner or for any purpose[.]”

For either method of conspiracy, one must have an agreement with another party to carry out the conspiracy, an then at least one party must “do any act to effect the object of the conspiracy.” ...

So what does this mean for the Trump campaign? Well, it means for starters that if Mueller uncovers evidence that they were involved in Concord Management’s operation, the defraud clause could apply to them as well. More importantly, however, it means that if campaign officials colluded with Russia in a way that was meant to impair, obstruct, or defeat the function of a government agency, they could face charges even if they those acts on their own were otherwise legal.