Giuliani and Trump 'misleading' when they say collusion is not a crime, law professor says

William Cummings | USA TODAY

Show Caption Hide Caption Giuliani confirms existence of Trump-Cohen tape President Donald Trump's attorney is confirming that Trump's former personal lawyer, Michael Cohen recorded him discussing a potential payment for an ex-Playboy model Karen McDougal. (July 20)

WASHINGTON – The word collusion gets thrown around a lot these days. But it seems not everyone is on the same page when it comes to defining it.

The term began to be bandied about as evidence of Russian election meddling became public. When the U.S. intelligence community concluded Putin tried to swing the election against Hillary Clinton – and as members of the Trump team were caught lying about Russian contacts – people began to wonder if there had been collusion between the Trump campaign and Russian agents.

Since then, President Donald Trump has denied the allegations so many times that "No collusion!" has become as much of a staple of the Trumpian lexicon as "Lock her up!" or "Mexico is going to pay for it."

After reports surfaced that Trump's former personal attorney Michael Cohen was prepared to tell special counsel Robert Mueller that there had, in fact, been some collusion, Trump attorney Rudy Giuliani declared that "collusion is not a crime."

According to Merriam-Webster, searches for the definition of the word spiked sharply after Giuliani's said Monday on "Fox and Friends" that he could find no federal statute defining the crime of collusion.

📈 Rudy Giuliani has sent searches for 'collusion' up over 2700%. https://t.co/Df0tubqOLz — Merriam-Webster (@MerriamWebster) July 30, 2018

Merriam-Webster's website defines collusion as a noun meaning a "secret agreement or cooperation especially for an illegal or deceitful purpose." The first known use of the word dates back to the 14th century.

The verb collude first appeared in 1525. It was a combination of the Latin verb ludere, which means to play and the prefix col-, which means together.

But don't let the innocent-sounding "play together" origin fool you. "Despite their playful history, collude and collusion have always suggested deceit or trickery rather than good-natured fun," Merriam-Webster says.

Trump repeated Giuliani's argument on Tuesday, tweeting, "Collusion is not a crime, but that doesn’t matter because there was No Collusion (except by Crooked Hillary and the Democrats)!"

More: Donald Trump says collusion 'is not a crime,' insists his campaign did not collude with Russia

More: Rudy Giuliani says Donald Trump team preparing report to counter Robert Mueller

So is collusion a crime or not?

Collusion is a crime under antitrust laws. But collusion in that context refers to companies secretly working together in price-fixing or bid-rigging schemes that illegally manipulate the free market. Since it's election rigging, not price fixing at issue here, that legal definition doesn't seem applicable.

While there may not be a crime called "collusion" that applies, as Giuliani says, Stanford University law professor David Sklansky called that argument misleading.

"It’s true that there’s no crime called collusion, but collusion can be a crime, depending on the circumstances," Sklansky told USA TODAY. "There's a crime called conspiracy, and some kinds of collusion amount to illegal conspiracies."

A conspiracy is illegal if people work together to commit a crime or to defraud the United States government, Sklansky said. According to case law, a conspiracy to defraud the U.S. involves the use of "deceit to prevent a government agency from doing its job," he said.

For example, the use of deceit to prevent the Federal Election Commission from doing its job could be considered a conspiracy to defraud the United States, as could an effort to hinder the government's ability to monitor foreign agents operating in the U.S.

Mueller cited such a conspiracy to defraud the U.S. in his indictment of alleged Russian hackers, Sklansky said.

Sklansky also points out that the president is not subject to the same standard as a criminal prosecution. Because impeachment is a political proceeding brought by Congress and not a criminal trial, Trump could be impeached on evidence of collusion with the Russians, even if it didn't meet the legal threshold for a conspiracy charge.

New York University law professor Ryan Goodman said the Trump camp repeatedly used the word collusion in an effort to muddy the waters around special counsel Robert Mueller's investigation.

"The problem is that the focus on the term 'collusion' has had the effect of implying precision where there is essentially none," Goodman wrote in The New York Times. "The fuzziness of the current discourse may not matter much to the F.B.I., whose investigation will surely adhere to the letter of the law – but it might matter a great deal for how its findings play in the court of public opinion."

"We have now surely lost touch with any reasonable sense of what 'collusion' means," he said.