Just to be clear: Personally, it was very difficult to perceive of what collusion actually meant and more specifically, how did it pertain to the 2016 elections. This is only, I hope, to provide a clearer and more concise definition of collusion and definitely not to say any crime of collusion took place and no suggestion that anyone will be charged, or should be charged. As with all criminal cases, everything depends on the facts and evidence the government can present. But it seems as though it would be incongruous to assert “there is absolutely no basis” here and now for a criminal investigation. I felt the need for a better understanding of collusion as there just did not seem to be such on any or all of the networks. So, it was time to put on the computer scientist’s hat and do some (a crap load) of research.
Some have suggested this idea is being floated as a feeler for the “base” by the Trump administration to gauge reaction. It is akin to the argument that the president couldn’t obstruct justice because he is the president. The apparent implication is that no matter what went on with the Russians or any attempts to thwart the FBI investigation, the investigations are just a political “witch hunt.” Nothing criminal to see here, move along now. To date, a lot of witches are in deep trouble and some of those witches, if not all, are going to pull hard time! One sorcerer is already in prison and several more are awaiting sentencing. It appears, using logic and “context”, it is no longer a witch hunt, but a witch round-up. But are any going to prison for collusion?? I think the answer is “NO”, but I think it is almost a given that some will be going to prison for far, far shorter times so that collusion (conspiracy) can be proven. And as you read on, I believe you will see as did I, collusion is a slippery slope with a multitude of deep, deadly crevasses in which to fall if you are a colluder or even in the same room with one.
We don’t know what the investigation will ultimately reveal. But we should dispense with the idea that colluding with Russian individuals to influence the outcome of a Federal election would not be a crime, even if it is interfering to elect a federal dog catcher, it is a crime. If the evidence is there, federal prosecutors have plenty of tools with which ti find it and build a case. Bill Clinton was investigated for more than 2 years as was Nixon. Therefore, it is my opinion that we at least owe Trump the same consideration so as not to make him feel less important than those two. (a bit of humor to lighten otherwise boring research).
Yes, Colluding With Russians to Interfere with the Election Is a Crime.
And to be more precise, collusion is conspiracy and that opens a whole new can of worms, even if you are an unknowing participant. And if you are a knowing and willing participant, you should consider packing more than an overnight bag as the results can easily be multi-decades of internment.
The Special Counsel and several Congressional committees are investigating Russian interference with the 2016 election and the possible involvement of Trump campaign officials. The investigations are still in their early stages, and it is not yet definitive whether any collusion took place, but that black hole is closing fast in the affirmative. But some have suggested that even if it did, it would not be criminal.
Fox News commentator Brit Hume recently made this claim on Fox News (State Run TV) a few Sundays back. When one of the panelists noted that a grand jury in Alexandria, Virginia was conducting a criminal investigation, Hume interrupted: But what crime? Can anybody identify the crime? Collusion, while it would be obviously alarming and highly inappropriate for the Trump campaign, of which there is no evidence by the way, of colluding with the Russians — it is not a crime.
Hume was echoing a claim made by other Fox News (Trump TV) pundits and supporters of the president. They imply the investigations must be politically motivated because collusion with Russians to interfere with our election, even if it did take place, would not be criminal.
No one knows yet what the various investigations will reveal and it appears that the house’s investigation has been totally annulled by the senate investigation. It is possible that no criminal misconduct will be found. But it is only rhetorical to suggest that criminal law is not even implicated here. If Trump campaign officials actively worked with Russians seeking to influence the outcome of the election, there are a number of potential and most likely severe criminal violations. But in fact, any Federal conviction is severe as it most likely makes one a felon. The federal government defines a felony as a crime punishable by death or imprisonment in excess of one year.
Collusion is like criminal conspiracy, a partnership in crime. The Most Likely Charge: Criminal Conspiracy
Collusion is defined as a secret agreement to cooperate in some dishonest endeavor. This sounds a lot like criminal conspiracy, which prohibits agreements to pursue a criminal end. And indeed, the potential charge that most clearly applies to the Russian collusion allegations is the federal conspiracy statute, 18 U.S.C. § 371.
Section 371 prohibits two kinds of conspiracies: conspiracy to commit any offense against the United States and conspiracy to defraud the United States. Both theories potentially apply to any Russian collusion. The nature of a conspiracy charge makes it particularly appropriate for these allegations.
In a conspiracy case the offense is the agreement itself – the partnership forms the crime. A defendant must join the agreement with the intent to further its criminal objectives. But a defendant need not personally commit the crime that is the object of the conspiracy. In other words, it is a crime to conspire to help another person commit an offense even if you don’t commit the crime or further the conspiracy yourself.
A PERSON, you, can also can conspire to help someone else commit a crime that you couldn’t possibly commit yourself – for example, because the statute doesn’t apply to you. The Supreme Court recently affirmed this principle in Ocasio v. United States. {A conspiracy to commit extortion can involve the purported victims of the extortion as members of the conspiracy. Justice Samuel A. Alito, Jr. delivered the opinion of the 5-3 majority. The Court held that, under longstanding principles of conspiracy law, a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he was conspiring to obtain property from another conspirator under color of law. Although conspirators have to be pursuing the same criminal objective, an individual conspirator need not agree to facilitate every element of the crime; the intent to agree that the substantive offense be committed is all that is necessary. The Court also held that this reading of the Hobbs Act is not overly broad because it still focused on the intent to commit the conspiracy.} And this assuredly leads one to consider the attempt to acquire help from Russia and the active encouragement to acquire the hacked emails of Hilary and the DNC and release them. On the best day and using the most liberal readings of this law, there is a substantial probability for legal liability within both Russia and the U.S.
Finally, a conspiracy does not have to be successful to be a crime. Conspiracy is a separate offense independent of the underlying object of the conspiracy. If the crime you conspire to commit is never carried out, for whatever reason, you can still be prosecuted for the conspiracy itself. It appears that the crime was carried out as determined by the Senate Investigation Report that Russia did work put forth much effort towards the Trump campaign to further an advantage for Trump, the candidate. If the connection is established between Trump or the Trump campaign and Russia, the legal liability will be overwhelming for any and all that may be involved.
Furthermore, the features of conspiracy law have some obvious implications for any investigation of Russian collusion. For example, if Trump officials conspired (colluded) to help Russians interfere with the election, they could be liable for conspiracy even if only the Russians did the actual interfering.
Similarly, if Trump officials conspired to help Russians violate bans on foreign involvement in U.S. campaigns, they could be liable for that conspiracy even though they were not foreign nationals and could not have committed the crime themselves.
Finally, because a conspiracy charge does not require proof that the conspiracy was successful, it would not require prosecutors to prove that any attempted interference actually impeded the election or affected the outcome. This will make the somewhat seemingly “illegitimate” president happy.
Conspiracy to Defraud the United States
Section 371 prohibits conspiracies to defraud the United States “in any manner or for any purpose.” Typically, to defraud means to use dishonest methods to deprive someone of money or property. Using traditional mail or wire fraud to charge that the public was defrauded of its right to a fair election therefore would be problematic, because the intangible right to a fair election is not “property.”
But for purposes of Section 371 conspiracies to defraud the U.S., fraud has a different and broader meaning. In 1924 in Hammerschmidt v. United States the Supreme Court held that conspiracy to defraud the U.S. includes schemes “to interfere with or obstruct one of its lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest.” A conspiracy to defraud the U.S. under 371 does not need to result in a loss of money or property by the federal government.
This theory is often used to charge schemes that involve disguising transactions to evade some government regulatory program, or hiding assets to thwart the IRS. Individuals can be guilty of conspiracy to defraud the U.S. even if their underlying stand-alone conduct would not be illegal. They can be found guilty even if prosecutors can’t prove that the government lost money as a result. As a matter of law, a prosecution does not have to show financial loss or damage to assert and obtain a guilty verdict.
Running a free and fair Presidential election is a core lawful function of the federal government. Any agreement to secretly and/or dishonestly attempt to interfere with a federal election would fall squarely within section 371’s prohibition on conspiracies to defraud the United States.
This theory has been used in election fraud cases in the past. For example, in the 1990’s there was a scandal involving China’s attempts to promote its interests within the U.S. government and potentially influence the 1996 presidential election. Charlie Trie, a Chinese-American with ties to the Clintons, was convicted for violating various campaign finance rules by exceeding legal contribution amounts and concealing the true identity of donors. Among the charges in his indictment: conspiracy to defraud the U.S. under Section 371 by impairing and impeding the legitimate functions of the Federal Election Commission. I am sure since a Clinton is involved, everyone wants and supports that conviction. And I am equally as certain that everyone would want the same, a conviction, if Trump or any of his associates were found guilty of such a crime.
Conspiracy to Commit an Offense Against the United States
Section 371 also prohibits conspiracies to commit any offense against the United States. This applies to conspiracies to violate any criminal statute. The United States government does not need to be the victim of the intended crime.
Russian interference with the election reportedly involved hacking the Democratic National Committee computers and possibly other computer systems (including those run by state election officials, and there are 27 known instances of this to date). Breaking into computer systems without authorization violates 18 U.S.C. § 1030, the Computer Fraud and Abuse Act. The CFAA criminalizes a wide range of activities involving hacking or other unauthorized access to and theft of information from private and government computers. Any conspiracy to engage in such hacking could be charged as a conspiracy to commit an offense against the United States. And by the way, this statute just scares the hell out of a lot of my friends for obvious reasons. Because we know that any hack, with enough time, can almost always be traced to origin, participants, those that shared the hack, and even those that were aware of the hack. Every digital transaction leaves footprints all over the world that are nearly impossible if not totally impossible to remove and erase.
Suppose, for example, Trump campaign officials agreed to somehow assist Russian hackers who were gaining unauthorized access to the DNC and other computers. That agreement could constitute a conspiracy to violate the CFAA, and could be prosecuted under Section 371. Because the crime is the conspiracy, Trump campaign officials could be charged even if the Russians did all of the actual hacking. The Russians also could be charged with violating the CFAA itself, but both the Russians and the Trump campaign officials who assisted them could be charged with conspiracy.
Conspiracy to impede the FEC could violate 18 USC 371
Conspiracy to Violate Election Laws
Another possible conspiracy to commit an offense against the United States would be conspiracy to violate federal election laws. Not being an authority on election law, I will only point out that there is a potential criminal violation of election laws, then it will be provable and sustainable that campaign officials could or did conspire with Russian individuals to violate that law.
Election law experts have suggested these facts could violate prohibitions on foreign contributions to our elections. For example, 52 U.S.C.§ 30121 outlaws election contributions and donations by foreign nationals. It may be that activities by Russian individuals, such as stealing and then releasing emails damaging to the Clinton campaign, could be characterized as contributing something of value to the Trump campaign.
If Russians violated the law against foreign contributions and Trump campaign officials conspired to help them do so, the campaign officials could be guilty of a conspiracy to violate that election law. Again, this is true even though they were not foreign nationals and so could not violate that law directly.
Aiding and Abetting
Title 18, § 2 of the U.S. Code provides that anyone who “aids, abets, counsels, command, induces or procures” the commission of a crime can be found guilty of committing the crime themselves. This criminal law theory of aiding and abetting is also potentially relevant to the Russian collusion allegations.
The theory would be quite similar to the conspiracy charge, but with less focus on proving the criminal agreement. If the evidence revealed that Trump or his campaign officials asked or encouraged the Russians to interfere with the election (as he did and is recorded on TV and on multiple occasions) or assisted them in any way, they potentially could be charged as aiders and abettors. Potential charges could include aiding and abetting a violation of the CFAA or of federal election law.
Accessory After the Fact and Misprision
Suppose Trump campaign officials got involved with Russian hackers only after the hacking was already completed, and worked with them on things like timing the release of certain emails. Conspiracy to violate the CFAA might not be a viable charge, because you can’t conspire to commit a crime that is already completed.
At that point a couple of other options would come into play. Accessory after the Fact, 18 U.S.C. § 3, punishes anyone who knows a crime against the U.S. has been committed and then “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.” Anyone who worked with Russian hackers to help them conceal their activities and avoid detection or apprehension could be considered an accessory.
A related charge, Misprision of a Felony, 18 U.S.C. § 4, punishes anyone who has actual knowledge of a felony that has been committed against the U.S. and “does not as soon as possible make known the same to some judge or other person in civil or military authority.” Again, if Trump campaign officials got involved with Russian hackers after the hacking was completed and cooperated with them rather than reporting the hacking, misprision would be a potential charge. If it is even remotely shown that Trump or people from his campaign found out about the hacking at a later time and did not report it, they have committed a felony and may be charged and prosecuted.
We should always keep in mind that a conviction on any of these potential charges, small or large, is a felony and that causes a plethora of new problems and issues for the convicted – the least of which may be hard time in a federal prison.
The second article of impeachment as brought against Nixon
In closing, my next research will be in the second article of impeachment, abuse of power. Nixon put the republicans over the edge when he ordered the IRS to go after the Los Angeles Times and the family that owned the newspaper. That was a crime and he was actually going down for it. Nixon short circuited the process of indictment and prison potentially with his resignation. It appears that Trump has done exactly the same thing with Amazon and Jeff Bezos. This research will be much more enjoyable than the previous as well as more enlightening to potential hazards Trump may be facing not from Muller, but from Congress. What I ask myself now is what happens if these are found to be high crimes and misdemeanors by a congress that comes into existence after this year… well, we will know more in about 9 months. In any and all cases, it will be interesting to follow and see where this screwed up life and these insane people in DC take us.
I will be researching soon, “The concept of treason”
In U.S. law, treason is a very narrow set of crimes — so narrow that only a couple of dozen people have been charged with it since the dawn of the republic.
But it is serious business, so much so that it is the only crime specifically described in the Constitution itself: “Treason against the United States,” says Article III, “shall consist only in levying “war against them”, or in adhering to their enemies, “giving them aid and comfort.” No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” The idea of aid and comfort is exceedingly interesting and I do so want to explore all the possibilities to understand it more completely.
References:
https://en.wikipedia.org/wiki/Conspiracy_(criminal)
https://fas.org/sgp/crs/misc/R41223.pdf
https://www.mass.gov/files/documents/2016/08/wo/4160-conspiracy.pdf
https://sidebarsblog.com/collusion-russians-influence-election-crime/
https://www.justice.gov/sites/default/files/usao/legacy/2013/06/28/usab6104.pdf
https://www.britannica.com/topic/conspiracy
http://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/09%20Chapter%203_mtd_0.pdf
https://www.everycrsreport.com/reports/R41223.html
wdalemiller 