Is collusion a crime? Since the beginning of special counsel Robert Mueller’s investigation, allegations of “collusion” have dominated the debate. President Trump regularly claims there was “no collusion” with the Russians seeking to influence the 2016 presidential election. His attorneys and other supporters also have repeatedly argued that even if collusion took place, that would not be criminal. But last week, in a case brought by Mueller, a federal judge upheld the legal theory under which “collusion” may indeed be a crime.

I’m not sure how the term “collusion” became so central to discussions of the Mueller investigation. It really should be banned altogether. (I know, I know — this from the guy who just wrote a blog post with “collusion” in the title, right? But hey, I can’t unilaterally disarm.) All it does is breed confusion and lead to diversionary arguments about whether collusion is criminal.

It’s true there is no criminal statute titled “collusion.” But as I’ve noted in several places (here and here, for example) the relevant crime is conspiracy under 18 U.S.C. 371. Collusion refers to an agreement with others to achieve some improper end. In criminal law, we call that a conspiracy – a partnership in crime. And the breadth of the federal conspiracy statute makes it particularly well-suited for cases like Mueller’s probe of Russian interference with the election.

Title 18 Section 371 prohibits conspiracies to commit an offense against the United States, which means a conspiracy to commit any federal crime. But it also broadly prohibits conspiracies to defraud the United States “in any manner or for any purpose.” For nearly a century the Supreme Court has held that conspiracies to defraud the United States include conspiracies to impair, obstruct, or defeat the lawful functions of the federal government through deceit or dishonesty. This is true even if the actions of the conspirators are not independently illegal, and even if the government is not deprived of any money or property.

In this post in the summer of 2017, I argued Mueller could use this theory to charge that individuals who agreed to work together to interfere with the election through deceptive and dishonest methods conspired to impair, obstruct, or defeat the function of the Federal Election Commission to administer a fair and honest election. This legal theory would apply not only to Russians but also to any members of the Trump campaign or other Americans who worked — or colluded — with them. And it applies whether or not the actions taken by the co-conspirators are otherwise illegal; in other words, the “collusion” itself can be the crime.

Mueller’s Russia Indictment

On February 16, 2018, Mueller’s grand jury returned an eight-count indictment against thirteen Russian individuals and three Russian companies. It charges that the defendants conspired to influence the 2016 presidential election, primarily through social media. To do so, they allegedly set up numerous social media accounts using fake identities and posing as Americans. They created many posts that were pro-Trump and critical of Hillary Clinton. They organized political rallies and other events in the U.S., again using their fake social media accounts and online personas. They interacted with U.S. campaign officials and volunteers while posing as American political activists. They engaged in political activities such as efforts to suppress black voter turnout, stir up anti-Muslim sentiment, and spread allegations of election fraud. The indictment also alleges that members of the conspiracy traveled to the U.S. under false pretenses in order to gather intelligence for the social media operations. (You can read my more detailed analysis of the indictment here.)

Count One of the indictment charges all the defendants with a conspiracy to defraud the U.S. by impairing, obstructing or defeating its lawful government functions under 18 U.S.C. 371. It alleges that the co-conspirators, through their actions, conspired to do the following:

Undermine the function of the Federal Election Commission, by failing to report expenditures on behalf of candidates in the election as required and by secretly making illegal foreign campaign contributions;

Undermine the function of the Justice Department, by failing to register as foreign agents as required by FARA (the Foreign Agent Registration Act), which allows DOJ to monitor the political activities of foreign agents in the U.S.; and

Undermine the function of the State Department, by making false statements on visa applications and thwarting State’s mission to monitor who is entering the country and for what purpose.

Collectively, these allegations charge a conspiracy to defraud the United States by impairing, obstructing, or defeating the operations of these various agencies, which help to ensure that federal elections are run fairly and freely without improper influence from foreign actors.

When the indictment was handed down, it seemed likely that none of the defendants would ever see the inside of a courtroom. They are all in Russia and Putin is unlikely to cooperate in any efforts to extradite them. But somewhat surprisingly, one Russian company, Concord Management and Consulting, LLC, entered an appearance through its attorneys and began vigorously to fight the case.

Concord’s Challenge to the Indictment

Concord first moved to have the case thrown out on the grounds that Robert Mueller’s appointment was illegal and he had exceeded his authority. District Judge Dabney Friedrich (who was appointed by Trump, by the way) denied that motion. Concord appealed that ruling by joining the appeal of Roger Stone associate Andrew Miller, who is also challenging Mueller’s authority. That case was argued before the D.C. Circuit on November 8 and a decision is pending.

Concord then filed a motion to dismiss the conspiracy count, the only count in which it is charged. The motion amounted to a broad attack on the legal theory behind a conspiracy to defraud the United States. Concord’s primary argument was that the indictment does not identify the particular DOJ or FEC regulations that Concord supposedly violated. It claimed prosecutors could not simply charge it with interfering with the functions of these agencies without pointing to specific violations, because “there is no such crime as interfering with an election.” In addition to identifying the relevant rules and regulations with particularity, Concord argued, the government was required to prove that Concord acted willfully: that it knew about those rules and knew it was illegal to violate them.

In a ruling on November 15, Judge Friedrich rejected Concord’s arguments. She held it is well-established that conduct may violate section 371 without proof that it also violated any other statute or regulation. The crime is the violation of section 371 itself – no other violation is required. As long as the government proves the defendants conspired to defeat lawful government functions through deceitful or dishonest conduct, that is sufficient. As the government pointed out in its brief, the point is not that the defendants necessarily committed some other specific violation. It’s that they improperly prevented the relevant agencies from even being aware of their activities so the agencies could ascertain whether there was any such violation.

The indictment does identify the different agencies and their relevant government functions that were undermined. It charges that Concord thwarted the DOJ and FEC by failing to report information it was under a legal duty to disclose. As to the FEC, that information related to illegal foreign campaign contributions made via the defendants’ activities, which provided things of value to the campaign. As to DOJ, the violations consisted of failure to register as a foreign agent under FARA. And when it comes to the State Department, the defendant’s deception was affirmative false statements on their visa applications about why they were coming to the United States. The judge ruled that the indictment’s description of these government functions and how the defendants’ deceptive activities undermined those functions was more than sufficient to put Concord on notice of the nature of the charges.

Concord had argued the indictment was also defective because it failed to allege that Concord itself committed any violations; for example, that it was required to register as a foreign agent and failed to do so. The flaw in that claim, however, is that the charge against Concord is conspiracy, not the underlying FARA or other violations. In a conspiracy charge, one defendant may conspire to help another conspirator commit the relevant acts, even if that defendant will not or could not commit them itself. It’s not necessary to allege that Concord violated FARA or filed false visa applications – only that it agreed to help others do so.

Concord also argued that the conspiracy charge requires the government to prove willfulness – in other words, that the defendants were aware of the specific election law or FARA provisions they were violating and acted with knowledge that what they were doing was unlawful. This higher degree of criminal intent is required for certain tax crimes and regulatory offenses, and would have been the standard if Concord had actually been charged with violating the election law or FARA. Concord argued that because the offenses involved were complex regulatory violations that require proof of willfulness, a conspiracy based on those provisions should require willfulness as well.

But the judge ruled that a 371 conspiracy does not require willfulness. The government is required to prove the defendants used methods that were deceitful or dishonest, and this minimizes any risk that innocent actors may be swept up within a conspiracy charge simply because they didn’t understand the complex regulations. The court agreed the government will have to prove the defendants had general knowledge about the functions of these agencies in order to prove that they conspired to defeat those functions. But it rejected Concord’s claim that the government must prove the defendants knew about the precise legal provisions they were violating or impeding. A general knowledge of the functions and requirements of the three agencies, as alleged in the indictment, is sufficient.

Concord also argued, briefly, that the conspiracy to defraud charge is invalid because it does not allege the defendants deprived the government of money or property. Typically, fraud does require a deprivation of money or property. But the Supreme Court has long held that a conspiracy to defraud the government under 371 is broader than traditional fraud and includes conspiracies to impair lawful government functions as discussed above. Concord made this argument simply to preserve it for the record. That means it may ultimately ask the Supreme Court to revisit the law concerning 371, if it gets to that point. But for now, the trial judge was not free to ignore the Supreme Court precedent, so she also denied Concord’s motion on this ground.

Yes, Collusion Is a Crime – Or at Least it Can Be

This court ruling should drive another nail in the coffin of the argument that collusion is not a crime. It definitely can be, and the crime is conspiracy – even if no other independent criminal violations are identified. Mueller’s use of that theory in his Russian social media indictment is a textbook example of a 371 conspiracy to defraud the U.S., and that theory has now been validated by the trial judge’s ruling.

To be fair, this was a motion to dismiss, which presents a very high bar for a defendant to succeed. To prevail prosecutors only needed to demonstrate that the indictment makes allegations legally sufficient to support the charges. Proving those allegations, of course, is another matter — and the government will need to prove the facts beyond a reasonable doubt to a jury if the case ultimately proceeds to trial. But the legal theory is sound, as this court ruling confirms.

The indictment that includes Concord does not include any Americans. That is the great outstanding question in the Mueller investigation: did any Americans join in the conspiracy? Were Americans involved, knowing that Russians were secretly working to help the Trump campaign while concealing their true identities and failing to report their activities as required? If so, they could be joined into the same conspiracy through a superseding indictment or could be charged in a new conspiracy. Much of the grand jury activity surrounding associates of Trump ally Roger Stone seems to be looking at these issues. Stone apparently had contact with various Russians – knowingly or not – and seemed to have advance notice of when stolen Democratic emails would be leaked.

It remains to be seen whether Mueller will conclude that the activities of Stone and others amounted to a conspiracy or to something less – perhaps just sleazy, hardball politics. Everything will depend on the evidence about what Stone and others knew and when they knew it – and that is likely now a focus of the grand jury’s inquiry. But if Mueller finds that Trump associates did conspire – or collude – with the Russians in these activities, he clearly has a legal basis to pursue criminal charges.

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