Special Counsel Robert Mueller’s probe into Russia’s election interference has been guided for the past two years by a one-page Department of Justice order that granted Mueller and his team of investigators broad authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
The document makes no mention of the term collusion, but in the daily discourse surrounding the Mueller probe, it has often been used by the president and media outlets alike as a catchall word to describe the sweeping search for any illicit activity between the Trump campaign and Russia.
Trump has often decried “no collusion!” His attorneys have argued on TV “collusion is not a crime.”
Meanwhile, congressional Democrats have countered that there is evidence of “criminal conspiracy,” pointing to the federal indictments of several Trump campaign aides stemming from the Mueller probe, and public testimony by Trump’s former personal attorney Michael Cohen that he arranged hush money payments to silence allegations of Trump's infidelity leading up to the 2016 election.
Coordination. Collusion. Conspiracy. As the world awaits the outcome of the Mueller investigation, legal experts say it’s important to note the distinction between the three terms and how they have played into the probe.
“The idea that collusion is the legal standard is one of the most frustrating myths to emerge from our cable-TV dominated discourse,” said Jens David Ohlin, vice dean and professor of law at Cornell Law School.
What is collusion?
Collusion is broadly defined as collaboration between two or more parties with the aim of illegally deceiving others, according to legal scholars. There is no federal criminal statute that refers to the crime of collusion; the term is political in nature, according to legal experts.
Mueller’s mandate was to investigate whether specific crimes such as conspiracy or campaign finance collaboration occurred, not the sweeping description of collusion used by Trump and others to define those crimes.
“It’s true there is no crime called collusion,” Randall D. Elliason, a former Assistant U.S. attorney who specialized in public corruption prosecutions, said on his popular legal blog “Sidebars.” “There’s also no crime called ‘shooting someone until they’re dead’ or ‘breaking into a house and stealing a laptop.’ But, of course, that doesn’t mean those acts are not criminal – the crimes are called homicide and burglary. What matters in criminal law is what you do, not what label someone chooses to put on it.”
Ohlin said, “When people talk about collusion what they’re usually referring to is some sort of collaboration, and a collaboration can be criminal in nature if it meets the definition of a conspiracy.”
What is conspiracy?
Conspiracy “is an agreement between two or more individuals to commit an unlawful act,” said Ohlin.
“The unlawful act can come from any area of the law,” he said. “So, for example, Trump would be guilty of conspiracy if he agreed with someone else to violate campaign finance laws, or agreed with someone to commit bank fraud. To prove conspiracy, the prosecution must demonstrate that the individuals formed an agreement and that one of the members of the conspiracy committed an overt act to begin the process of completing the target crime. But the target crime never needs to occur. That’s why prosecutors love to charge defendants with conspiracy.”
Eric M. Freedman, a constitutional law professor at Hofstra Law School, said: “It’s actually quite common that it’s easier to prove conspiracy than actually to prove a crime ... because there are infinite numbers of intermediaries usually involved. So Trump, for instance, will certainly say, ‘I knew nothing of the particular details that any of these people did.’ ” But if he “blessed” any efforts to work with Russia to influence the outcome of the 2016 election, he would be regarded as “a co-conspirator regardless of who did what to implement” the plan.
Experts note that of the Trump campaign operatives who have been indicted to date by Mueller’s office, none have been charged with conspiracy. They have mostly been charged with lying to investigators about their contacts with Russia, or in Cohen’s case lying to Congress about his knowledge of Trump’s business dealings in Moscow.
What is coordination?
Coordination, in the context of what Mueller is examining, is a “campaign finance word,” said Freedman.
Any actions the Russian government may have taken to advance Trump’s candidacy, if found to be done in consultation with the Trump campaign, would be regarded as an “in-kind” contribution to his campaign that would violate federal campaign finance laws barring foreign campaign contributions, said Freedman.
Mueller is also probably examining whether there was any coordination between Trump campaign associates and Russian operatives from a national security standpoint, said Ohlin.
“The important thing to remember is that the Mueller investigation is both a criminal investigation and a counterintelligence inquiry, and coordination with Russia pertains to that second aspect,” Ohlin said.