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Friday, July 7, 2017
BY , JULY 6, 2017
Over the past couple of weeks, the prevailing meme among some Donald Trump-defending reporters and commentators has shifted in a subtle but important way. For months, such folks have hewed to the line that no evidence had yet surfaced of “collusion” between the Trump campaign and Russian efforts to interfere with the 2016 U.S. presidential election. Now, they say, collusion wouldn’t be such a big deal if it did occur — certainly not illegal.
Take Fox News. In discussing a reported grand jury investigation, Brit Hume confidently declared: “But what crime? Can anybody identify the crime? Collusion, while obviously it would be alarming and highly inappropriate for the Trump campaign, of which there is no evidence by the way, of colluding with the Russians. It’s not a crime.”
Sean Hannity made a similar point:
What was the collusion? That maybe somebody in the Trump campaign talked to somebody in Russia because Russia supposedly had the information that Hillary Clinton had destroyed on her server when she committed a felony and tried to cover up her crimes? And that they might say as a Trump campaign representative, “Wow, you have that? Tell the American people the truth. Let them see it themselves, release it.” Is that a crime, to say “release it”? To show the truth?Earlier, Gregg Jarrett took to the network to assert the same: “Collusion is not a crime. Only in antitrust law. You can collude all you want with a foreign government in an election. There is no such statute.”
There are two important points to make about this new conservative argument. The first is that it seems to have conveniently appeared only a few days before the emergence of some actual evidence of collusion — the first such evidence we have seen so far. The second is that the argument actually has some legal merit — though whether it’s legally correct depends on facts yet to surface.
The new evidence of collusion is far from conclusive. But it’s fair to say that the public evidence last week got a lot stronger that people in the Trump campaign — or people on the periphery of the campaign, at least — were not simply passive beneficiaries of Russian intelligence efforts.
On June 29, the Wall Street Journal reported that prior to the 2016 election, a Republican opposition researcher named Peter Smith attempted “to obtain emails he believed were stolen from Hillary Clinton’s private server, likely by Russian hackers.”
The report contains two significant allegations: first, that Smith — who died shortly after talking to reporter Shane Harris — implied to associates at the time that he was working in coordination with Michael Flynn and with Flynn’s son in his efforts to obtain stolen emails from Russian hackers. Second, the Journal reports that, according to multiple officials, the U.S. intelligence community is aware of conversations among Russian hackers in which they discussed “how to obtain emails from Mrs. Clinton’s server and then transmit them to Mr. Flynn via an intermediary.” It is not clear whether the U.S. intelligence reporting refers to the same operation as Smith described to the Journal, but they took place during the same time frame.
The Journal published a follow-up story the next day, on Friday, regarding documents that Smith sent to others he was attempting to recruit to the effort. One of the documents names Trump campaign advisors — including Flynn, Steve Bannon, Kellyanne Conway, Sam Clovis, and others — as being involved in the effort.
On Lawfare Friday evening, the original recipient of that document, information security expert Matt Tait, elaborated on his bizarre experience with Smith.
Tait’s account itself contains a number of remarkable points. He writes that he counseled Smith to seriously consider “the possibility that this may have been part of a wider Russian campaign against the United States” but that Smith “didn’t seem to care” about who had taken the emails or their motives:
It is no overstatement to say that my conversations with Smith shocked me. Given the amount of media attention given at the time to the likely involvement of the Russian government in the [Democratic National Committee] hack, it seemed mind-boggling for the Trump campaign—or for this offshoot of it—to be actively seeking those emails. To me this felt really wrong.Perhaps the most startling and significant part of Tait’s story is his own perception that Smith genuinely knew both Flynn and his son well and that his effort seemed to be genuinely connected to some degree to the Trump campaign itself, not just an independent rogue operation:
My perception then was that the inclusion of Trump campaign officials on this document was not merely a name-dropping exercise. This document was about establishing a company to conduct opposition research on behalf of the campaign, but operating at a distance so as to avoid campaign reporting. Indeed, the document says as much in black and white.
The combination of Smith’s deep knowledge of the inner workings of the campaign, this document naming him in the “Trump campaign” group, and the multiple references to needing to avoid campaign reporting suggested to me that the group was formed with the blessing of the Trump campaign. In the Journal’s story this evening, several of the individuals named in the document denied any connection to Smith, and it’s certainly possible that he was a big name-dropper and never really represented anyone other than himself. If that’s the case, Smith talked a very good game.Is all this the smoking gun in the Trump-Russia investigation? No. It definitely moves the collusion ball down the field, especially given the corroboration — at least to some degree — by independent intelligence collection. But it also forces people to scratch their collective heads and ponder the new Fox News talking point that collusion isn’t really that big a deal. If all this is true, one might ask, so what?
In order to understand the answer, it’s necessary to break down the term “collusion” a bit. First, we can dispense with collusion as a strict legal term. Jarrett is actually correct that, from a statutory standpoint, collusion is a legal term of art only in the realm of antitrust. No one is accusing Trump and Putin of price fixing.
In the general public conversation, however, the term collusion is being used in a broader colloquial sense to mean forms of secret cooperation between the Trump camp and Russia. Collusion has become the favored term, thus far, more because of this colloquial appropriateness than because it gives any guidance about what is and is not lawful conduct. Especially as more concrete allegations emerge, using the term collusion denotes some general form of secret, or otherwise improper, cooperation. When used in that sense, the term conveys a mood of impropriety and illegality but might cover both legal and illegal conduct.
It may seem absurd that it could be possible to collaborate with a foreign intelligence service in its efforts to interfere with a U.S. election by coaxing the release of stolen emails without violating any law. But it’s not that absurd. There are plenty of activities that might be highly inappropriate and politically consequential but do not violate any criminal law. After all, if the actor seeking the information were the New York Times, not a shadowy group of Republican political operatives, we’d call it journalism.
At the same time, it’s also easy to imagine activities that fall within the colloquial meaning of collusion that would actually be criminal. So it’s worth considering whether there’s a more precise legal taxonomy, other than “collusion,” to discuss the situation at hand.
Former FBI Director James Comey, in his congressional testimony announcing the investigation, used a different word: “coordination.” This word is more precise in some respects, but it also does not necessarily convey illegality. There is, after all, no crime of “coordination” either. Coordination, of course, does not even need to be secret. And neither, most particularly, does “cooperation.” Indeed, the public evidence of at least tacit cooperation between the Trump campaign and the Russians is overwhelming and requires no investigation to prove.
Recall, after all, that Trump overtly and publicly called on Russia to obtain Clinton’s emails multiple times. In a July 27, 2016 news conference, Trumpsaid, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” Later the same day, he tweeted, “If Russia or any other country or person has Hillary Clinton’s 33,000 illegally deleted emails, perhaps they should share them with the FBI!” Throughout the campaign, Trump celebrated WikiLeaks and sought to make the emails, hacked and released by a hostile foreign intelligence service, a campaign issue. In short, he quite openly invited and encouraged Russian help, and he flagrantly relied on the fruits of Russian efforts. The only real question is whether these were parallel, symbiotic activities taken cooperatively by independent actors with common interests in a particular outcome or whether there was some kind of active coordination behind the cooperation.
So if collusion is not, in and of itself, a crime, and cooperation and even secret coordination are not either — at least not without more evidence — what are the possible crimes here?
One possibility, of course, is that the Fox pundits are right and there were no crimes — that the underlying investigation really is predominantly a counterintelligence matter and nothing more. The possibility that Americans cooperated with Russian intelligence in a covert action against their own country and ended up at the highest echelons of government is, to be sure, a matter of grave counterintelligence and national security concern even if their “collusion” or “coordination” or “cooperation” actually violated no criminal law. So the investigation could primarily be noncriminal in character.
But there are also areas of criminal law that any responsible prosecutor would want to examine as evidence of collusion or coordination begins to emerge — and examine with specific and granular reference to facts that are not yet known to the public or maybe even to the investigators themselves.
For example, the law of conspiracy covers agreements to engage in future crimes; an agreement to commit a crime, combined with some overt step toward committing it, is itself a crime. Then there is solicitation, which is the attempt to induce another to commit a crime. And there is clearly underlying criminal activity in the instances of Trump-Russia cooperation we already know about: Violations of the Computer Fraud and Abuse Act certainly took place when the DNC computers were hacked, and laws were certainly broken when large volumes of emails were stolen, too. Helping thieves dispose of stolen property is generally criminal, as is — generally speaking — knowing receipt of stolen property, though journalism again offers something of an exception to this rule when the property in question is forms of information.
There are other areas of law, too. Normally, we evaluate efforts to coordinate with or assist foreign intelligence services under the rubric of espionage — though that typically involves giving information to the foreign power, not helping the foreign power distribute it to others. While there’s no indication that happened here, investigators are always interested in both information flows and money flows when foreign intelligence services have relationships with Americans in positions of power. Moreover, many such relationships with foreign governments, to avoid criminal liability, require disclosures under the Foreign Agents Registration Act, which the Trump campaign team seems not to have contemporaneously filed. And, of course, anyone who tries to hide collusion or coordination by lying about it to investigators commits a crime in doing so.
At the moment, there simply aren’t enough facts to make any kind of judgment regarding anyone’s criminal conduct. So for the time being, we suspect that special counsel Robert Mueller’s team is more interested in assembling facts than in reaching any conclusions regarding what sort of collusion or coordination would be actionable under what sort of law.
The key point, for present purposes, is that collusion, in and of itself and to the extent it took place, is a political problem, not a legal one. The president will not have to answer for collusion as such in any court. His legal problem, rather, will arise — if it ever arises — only once we know the manner of any collusion and how that activity maps onto the criminal code. Either way, Trump may have to answer to the country if the evidence shows he was willing to do business with an adversary foreign intelligence service to release dirt on a domestic political opponent. Disloyalty of that sort may well be a crime in the eyes of the president’s fellow citizens, if not under the letter of the law.
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