What Is Collusion?

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Kevin Daley Supreme Court correspondent
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“Collusion” is an elusive term leveraged to mean many things in many contexts, but it is not a legal term, at least as regards the ongoing investigation of Russian interference in the 2016 presidential election.

As Susan Hennessey explains on NPR, “collusion” is not a term of art, but rather a colloquialism that describes the universe of potential crimes committed in the course of secret coordination between the Trump campaign and Russian state actors.

“They’re using [collusion] 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,” Hennessey told Ari Shapiro Monday.

She further explained that the term “coordination,” as it is used in the context of this investigation, is also not a precise legal term, but a helpful moniker for a range of criminal activity.

What crimes could underly terms like “collusion” or collaboration” as regards the Russia investigation? It is difficult to create an exhaustive list, especially since every relevant fact is not yet public. Still, it is possible to identify several potential legal violations.

Writing for his Election Law Blog, UC Irvine School of Law Professor Rick Hasen argues that Trump Jr. violated campaign finance regulations. According to the Code of Federal Regulations, it is unlawful to solicit contributions from foreign entities.

To solicit means:

to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.

As he explains in separate posts, the Federal Election Commission has given the phrase “anything of value” a capacious reading, to include polling data or any useful item that a campaign would have to expend resources to acquire. Therefore, “anything of value” could conceivably include opposition research that Trump could only otherwise obtain by expenditure.

“Hard to see how there is not a serious case here of solicitation,” Hasen writes. “Trump Jr. appears to have knowledge of the foreign source and is asking to see it.”

Failure to disclose meetings with Kremlin-aligned officials in an application for a security clearance may also be unlawful. Should campaign hands-turned White House advisors like Jared Kushner fail to mention the existence of such meetings, prosecution is possible. At the very least, such omissions are cause to revoke a security clearance. During Tuesday’s press briefing, White House Deputy Press Secretary Sarah Huckabee Sanders declined to say whether Kushner’s security clearance was still active.

Criminal conspiracy might also fall within the scope of the collusion shorthand. Conspiracy exits when a group of people decide to commit a crime, and take some step to effect its completion. An agreement need not be explicit for conspiracy to exist, so the mere presence of insinuation or suggestion in discussions between Trump aides and Russian state actors could precipitate a conspiracy charge, depending on the circumstances.

If money exchanged hands at any point, financial crimes may have been committed. Since any transaction of this sort would almost certainly involve deception as to the source of funds, money laundering may exist.

Even if the investigation yields no evidence of criminality, its findings could be politically devastating, and do Trump in on their own.

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