President Donald Trump has consistently denied that any collusion took place between his campaign and Russia. Now, Trump and lawyer Rudy Giuliani are putting new emphasis on the question of whether collusion itself is a crime in the first place.
"Collusion is not a crime, but that doesn’t matter because there was No Collusion (except by Crooked Hillary and the Democrats)," Trump tweeted July 31.
Giuliani made the same point a day before, telling CNN, "I don't even know if that's a crime, colluding about Russians."
This isn’t the first time Trump has dismissed collusion on legal grounds. In a December interview with the New York Times, he noted the views of Harvard emeritus law professor Alan Dershowitz.
"I watched Alan Dershowitz the other day," Trump said. "He said, No. 1, there is no collusion, No. 2, collusion is not a crime."
For this fact-check, we’ll sort out how collusion overlaps with the law.
The press uses the term collusion to describe a range of activities that might have taken place involving the Trump campaign and Russian representatives.
Collusion is part of antitrust law (but those statutes are irrelevant in this situation).
While the special counsel investigation has produced indictments and guilty pleas, it’s too early to say whether the Trump campaign broke any laws.
Legal opinions vary, but people who know the law say that certain statutes could have been violated.
The common use of the word collusion includes potentially illegal behavior.
If Trump were talking about the purely legal use of the word collusion, he would be wrong. Collusion falls under federal antitrust law, and it involves competing companies that cut secret deals to boost each other’s profits.
Trump isn’t using the word that way, and nor is anyone else. The issue is whether people in the Trump campaign knowingly boosted Russian efforts to undermine Democratic candidate Hillary Clinton to the benefit of candidate Trump.
Russia’s intentions are not disputed, at least not among U.S. intelligence agencies and special counsel Robert Mueller’s investigation.
The focus is on what the Trump campaign did and whether that was illegal, regardless whether the relevant statute contains the word "collusion."
Harvard legal scholar Dershowitz found it hard to see what law the Trump campaign might have broken, even if it knew in advance about emails that Russian operatives allegedly stole from the Democratic National Committee and Clinton’s campaign chair John Podesta.
"Obviously, if anyone conspired in advance with another to commit a crime, such as hacking the Democratic National Committee, that would be criminal," Dershowitz wrote in 2017. "But merely seeking to obtain the work product of a prior hack would be no more criminal than a newspaper publishing the work products of thefts such as the Pentagon Papers and the material stolen by Edward Snowden and Chelsea Manning."
Defense attorney William Jeffress told Politico that "collusion with the Russians in attempting to affect the outcome of the presidential election is a serious political scandal, but I must say it is not clear that it provides a basis for criminal prosecution."
But other legal experts say that the Trump campaign could have run afoul of various laws.
If Russia deployed its people, as Mueller described in his indictment of a dozen Russians, then it spent money and that could be a legal hazard for the Trump campaign.
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 told us in 2017. "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.
University of California, Irvine law professor Rick Hasen said that in addition to possible violations of campaign finance laws, the Trump campaign could be open to another charge.
"If others participated in the scheme to do this, it could be a conspiracy," Hasen said. "Whether you want to call that ‘collusion’ or not seems besides the point."
The Lawfare Blog, a project with ties to the Brookings Institution, explored whether the Trump campaign was as safe as Dershowitz said when it came to the stolen emails. There is room in the Computer Fraud and Abuse Act for people to be punished for helping distribute hacked materials.
The hacking itself might be only a misdemeanor, but publishing the emails could turn into a felony under state and federal laws. If people in the Trump campaign knew that a release was in the cards, they could be accused of aiding and abetting that transgression.
"A defendant wouldn’t have to have been involved from the outset, but he or she would have needed to be aware of the larger scheme before deciding to participate in the second element—the part that made it a felony—for accomplice liability to attach," the Lawfare authors wrote.
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."
And as always in an investigation, if people lie to federal agents or otherwise try to cover their tracks, that is a felony as well. However, that could be seen as a separate act from any coordination between the Trump campaign and Russia.
Trump said that collusion is not a crime.
If he means that in a strictly legal sense, he is wrong because collusion is part of antitrust legislation. If he means it in the only way that fits with Russian interference in the 2016 election, then a broader definition applies.
Some legal experts don’t see how coordinating with the Russians violates the criminal code. But others can name specific statutes that could be triggered.
Those laws don’t include the word "collusion," but they do cover the sort of actions under investigation by the special counsel. Activities by the Trump campaign might have broken laws that deal with elections, public corruption or computer fraud.
We don’t say that anyone in the Trump campaign violated these laws. The point is that coordination with Russian representatives potentially could violate them.
We rate this claim Mostly False.
Donald Trump, tweet, July 31, 2018
Cornell Law School Legal Information Institute, 11 CFR 110.20, accessed July 12, 2017
Cornell Law School Legal Information Institute, 52 U.S. Code § 30121, accessed July 12, 2017
Cornell Law School Legal Information Institute, Bipartisan Campaign Reform Act of 2002, accessed July 12, 2017
Cornell Law School Legal Information Institute, 18 U.S. Code § 610, accessed July 12, 2017
U.S. Justice Department, Special counsel indictment: 12 Russians, July 13, 2018
Federal Trade Commission and U.S. Justice Department, Antitrust Guidelines for Collaborations Among Competitors, April 2000
MSNBC, Alan Dershowitz argues against impeachment, July 10, 2018
Foreign Policy, If Donald Trump Is a Crook, What Kind Is He?, July 6, 2017
Lawfare, Where the Heck Did the Term "Collusion" Come From?, June 29, 2018
New York Times, Excerpts From Trump’s Interview With The Times, Dec. 28, 2017
CNN, Giuliani says he's not sure collusion is a crime despite Mueller investigation, July 30, 2018
Politico, What Is Collusion? Is It Even a Crime?, July 12, 2018
PunditFact, Is 'collusion' illegal? Fox News host says no, July 12, 2017
PunditFact, Fox News host wrong that no law forbids Russia-Trump collusion, May 31, 2017
Interview with Josh Douglas, University of Kentucky law professor, July 12, 2017
Interview with Rick Hasen, University of California, Irvine law professor, July 12, 2017
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
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