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Fox News host Gregg Jarrett has a distinctive take on the investigation into possible links between Russia and the Trump campaign. Jarrett, a former defense attorney, said that even if the two worked together, it wasn’t illegal.
"Collusion is not a crime, only an antitrust law," he said on May 30. "You can collude all you want with a foreign government in an election. There's no such statute."
Jarrett made the same point in an article on the Fox News website. He wrote that special counsel Robert Mueller had been given the "futile" task of investigating a crime that doesn’t exist.
"As special counsel, Mueller can engage in all manner of spectacular jurisprudential gymnastics," Jarrett wrote. "However, it will not change the fact that colluding with Russia is not, under America’s criminal codes, a crime."
We thought we’d look into the legal landscape. We wanted to know what election law does or doesn’t say; this is a separate question from what did or did not occur.
By way of brief recap, the U.S. Justice Department appointed Mueller to investigate Russian interference with the 2016 presidential election. His first task was to explore "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump."
Jarrett said the only real trouble for the Trump campaign would be if it committed some other crime, such as helping the Russians hack into Democratic emails. He dismissed that as implausible and unsupported by any public evidence.
We ran Jarrett’s argument by three election law professors, and they all said that while the word "collusion" might not appear in key statutes (they couldn’t say for sure that it was totally absent), working with the Russians could violate criminal laws.
Nathaniel Persily at Stanford University Law School said one relevant statute is the Bipartisan Campaign Reform Act of 2002.
"A foreign national spending money to influence a federal election can be a crime," Persily said. "And if a U.S. citizen coordinates, conspires or assists in that spending, then it could be a crime."
Persily pointed to a 2011 U.S. District Court ruling based on the 2002 law. The judges said that the law bans foreign nationals "from making expenditures to expressly advocate the election or defeat of a political candidate."
Another election law specialist, John Coates at Harvard University Law School, said if Russians aimed to shape the outcome of the presidential election, that would meet the definition of an expenditure.
"The related funds could also be viewed as an illegal contribution to any candidate who coordinates (colludes) with the foreign speaker," Coates said.
To be sure, no one is saying that coordination took place. What’s in doubt is whether the word "collusion" is as pivotal as Jarrett makes it out to be.
Coates said discussions between a campaign and a foreigner could violate the law against fraud.
"Under that statute, it is a federal crime to conspire with anyone, including a foreign government, to ‘deprive another of the intangible right of honest services,’ " Coates said. "That would include fixing a fraudulent election, in my view, within the plain meaning of the statute."
Josh Douglas at the University of Kentucky Law School offered two other possible relevant statutes.
"Collusion in a federal election with a foreign entity could potentially fall under other crimes, such as against public corruption," Douglas said. "There's also a general anti-coercion federal election law."
In sum, legal experts mentioned four criminal laws that might have been broken. The key is not whether those statutes use the word collusion, but whether the activities of the Russians and Trump associates went beyond permissible acts.
Jarrett said that "you can collude all you want with a foreign government in an election," because there’s no law that says collusion is a crime.
Three prominent election law scholars said there are at least four laws that would prohibit the sort of activities under investigation, whether those laws mention collusion or not. Jarrett’s focus on a single word fails to reflect the reach of the criminal code.
We rate this claim False.
Fox News, Happening Now, May 30, 2017
Fox News, What is Robert Mueller investigating (since collusion is not a crime)?, May 23, 2017
U.S. Justice Department, Appointment of special counsel to investigate Russian interference with the 2016 presidential election and related matters, May 17, 2017
U.S. District Court for the District of Columbia, Bluman, et al v. Federal Election Commission, Aug. 8, 2011
Email interview, Nathaniel Persily, professor of law, Stanford University School of Law, May 30, 2017
Email interview, John C. Coates, professor of law, Harvard University Law School, May 31, 2017
Email interview, Josh Douglas, associate professor of law, University of Kentucky School of Law, May 30, 2017
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