Trump-Russia Probe Raises Debate Over Whether Collusion Is Criminal

NPR's Ari Shapiro speaks with Susan Hennessey about her article in Foreign Policy called "If Donald Trump is a Crook, What Kind is He?" and the debate over whether collusion is a crime.

ARI SHAPIRO, HOST:

The president's eldest son is confirming news reports that he met with a Kremlin-connected lawyer during last year's presidential race. According to a statement that Donald Trump Jr. released yesterday, quote, "claims of potentially helpful information were a pretext for the meeting." Investigators are looking into whether the Trump campaign colluded with Russia to win the election. This meeting may well be part of their inquiry. Some people defending Trump have argued that collusion is not a crime. Here was Gregg Jarrett on Fox News in late May.

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GREGG JARRETT: Look. And I've said it before, and I'll say it again. Collusion is not a crime, only an antitrust law. You can collude all you want with a foreign government in an election. There is no such statute.

SHAPIRO: Susan Hennessey of the Lawfare blog wrote about collusion and crime in a piece for Foreign Policy magazine. Welcome to the program.

SUSAN HENNESSEY: Thanks for having me.

SHAPIRO: Quick fact check - Gregg Jarrett says collusion is not a crime. Is he right?

HENNESSEY: Yes and no. So he is right that collusion is not a crime in this particular context. So collusion is a crime in the context of antitrust. No one's accusing Trump and Putin of price fixing. That said, this notion that you can collude with a foreign government all you want in an election and it's never a crime - that's not actually technically accurate.

What we're seeing whenever we hear people use the term collusion - of course they aren't talking about this legal term of art. They're using it sort of colloquially to describe illicit or inappropriate or even illegal coordination, secret coordination. And there are all sorts of coordination you could have with a foreign government that would be illegal. So it wouldn't fall within that technical definition of collusion. We might not use that word, but it could be criminal conduct.

SHAPIRO: And when former FBI Director James Comey testified before Congress, he used the term coordination. Would that necessarily be illegal?

HENNESSEY: So the way Comey used the term coordination, it was also in sort of this broad, not-precisely-legal sense. The term coordination does show up in some sort of campaign finance laws. But we are moving into sort of more precise terminology as the public allegations become more specific.

SHAPIRO: So if this possible collusion or coordination might not have been a crime in and of itself but be related to an underlying crime, what might that underlying crime be?

HENNESSEY: So usually whenever we're talking about computer hacking, we're talking about violations of the Computer Fraud and Abuse Act. So that's sort of broadly the underlying offense that we might be talking about here. As you broaden that out to larger groups of people or people with more tenuous connections to the underlying act, you might be thinking about things like conspiracy. So that's an agreement to commit a future crime. So if you take an overt step towards that agreement, then you've committed a crime. You could also talk about solicitation, right? You're trying to get someone else to commit a crime.

SHAPIRO: But if the Russians committed a crime in illegal hacking and obtained information that they then - and this is not proven - potentially gave to Trump campaign associates, is giving that information after the fact of having illegally obtained it a crime?

HENNESSEY: So this is an area that is a little bit tricky, at least legally speaking. Certainly if somebody was seeking information who wasn't part of the campaign - right? - so it was The New York Times or NPR - we wouldn't call that collusion or coordination. We would call that journalism - right? - so this sort of passing of information. That said, whenever we are talking about foreign intelligence services and whenever we are talking about individuals connected to a campaign, whenever there's underlying illegal conduct, then you could possibly be talking about crimes.

SHAPIRO: The way you described the allegation here - which has so far not been proven - is that Americans cooperated with Russian intelligence in a covert action against their own country and ended up at the highest echelons of government. If that is proven, I think many people would wonder how it could possibly not be a crime.

HENNESSEY: Yeah, so it certainly does seem absurd that it might be possible to collaborate with a foreign intelligence service in this way and not violate any laws. These laws are really drafted quite narrow, quite technical. So it's not crazy. The fact that it wouldn't be illegal, though, doesn't mean that it's not politically consequential. And importantly, now that we know that there's both congressional investigations and federal investigations within the executive branch, the other crimes we might be thinking about are lying to federal or congressional investigators. Also a failure to disclose these meetings that are being reported - that also comes with criminal liability.

SHAPIRO: Susan Hennessey, managing editor of the website Lawfare, thanks a lot.

HENNESSEY: Thanks for having me.

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