Legal Question

[WiffenPoof]

This is directed to our DU lawyers and friends and it is a serious question.

Legally Speaking: What is the difference between collusion and conspiracy?

P

[GreenPartyVoter]

1. My understanding is that collusion isn't actually a legal term, but

but conspiracy is.

[Gothmog]

8. Fox News host wrong that no law forbids Russia-Trump collusion

Here is some more on why collusion between trump and Russia would be a crime http://www.politifact.com/punditfact/statements/2017/may/31/gregg-jarrett/fox-news-hosts-wrong-no-law-forbids-russia-trump-c/

We ran Jarrett’s argument by three election law professors, and they all said that while the word "collusion" might not appear in key statutes (they couldn’t say for sure that it was totally absent), working with the Russians could violate criminal laws.

Nathaniel Persily at Stanford University Law School said one relevant statute is the Bipartisan Campaign Reform Act of 2002.

"A foreign national spending money to influence a federal election can be a crime," Persily said. "And if a U.S. citizen coordinates, conspires or assists in that spending, then it could be a crime."

Persily pointed to a 2011 U.S. District Court ruling based on the 2002 law. The judges said that the law bans foreign nationals "from making expenditures to expressly advocate the election or defeat of a political candidate."

Another election law specialist, John Coates at Harvard University Law School, said if Russians aimed to shape the outcome of the presidential election, that would meet the definition of an expenditure.

"The related funds could also be viewed as an illegal contribution to any candidate who coordinates (colludes) with the foreign speaker," Coates said.

To be sure, no one is saying that coordination took place. What’s in doubt is whether the word "collusion" is as pivotal as Jarrett makes it out to be.

Coates said discussions between a campaign and a foreigner could violate the law against fraud.

"Under that statute, it is a federal crime to conspire with anyone, including a foreign government, to ‘deprive another of the intangible right of honest services,’ " Coates said. "That would include fixing a fraudulent election, in my view, within the plain meaning of the statute."

Josh Douglas at the University of Kentucky Law School offered two other possible relevant statutes.

"Collusion in a federal election with a foreign entity could potentially fall under other crimes, such as against public corruption," Douglas said. "There's also a general anti-coercion federal election law."

In sum, legal experts mentioned four criminal laws that might have been broken. The key is not whether those statutes use the word collusion, but whether the activities of the Russians and Trump associates went beyond permissible acts.

[COLGATE4]

2. Collusion is not a legally cognizable charge.

Conspiracy is.

[WiffenPoof]

4. Thank you

Good information. Appreciate the time you took to address this question.

[Gothmog]

5. When Collusion with Russia Becomes a Crime: Part IIIAiding and Abetting

President Obama's attorney has some good articles on this. Here is just one https://www.justsecurity.org/42387/collusion-russia-crime-part-iii-aiding-abetting/

It may be easier to appreciate the case to the contrary–that liability with the requisite intent could be imposed for these actions–by considering how the case could also be brought under ordinary “aiding and abetting” principles of the criminal law.

It is well understood that established “aiding and abetting” principles have wide, elastic application. The abettor is not required, of course, to have been “in on it” from the beginning. In Learned Hand’s classic formulation in United States v. Peoni, the law requires only “that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” The courts have defined in various terms this association, but what is required is “some affirmative conduct designed to aid in the success of a venture with knowledge that [the]actions would assist the perpetrator, the principal of the crime.” United States v. Cowart, 595 F.2d 1023, 1031(1979).

Note that the assistance constituting aiding and abetting does not have to be substantial. The accomplice liability provision of the federal campaign finance law, focused on “substantial assistance,” is, in that sense, stricter. ,So federal prosecutors proceeding on an “aiding and abetting” theory may have the latitude to reach a broader range of Trump campaign conduct in support of the Russian program.

It would not be the first time that Prosecutors would have enforced campaign finance law with an “aiding and abetting” charge. And they have evidence in the Trump/Russia case with which to work.

[Gothmog]

6. Campaign Finance Law: When Collusion with a Foreign Government Becomes a Crime

Here is another good analysis on this issue https://www.justsecurity.org/41593/hiding-plain-sight-federal-campaign-finance-law-trump-campaign-collusion-russia-trump/

Commentary on Russian intervention in the 2016 elections has included one confidently expressed and perhaps growing view: that there may be a scandal there, but no conceivable crime. It is claimed that the Trump campaign could wink and nod at Russian hacking, and derive the full benefit, but that without considerably more evidence of direct involvement, there is no role for criminal law enforcement. The matter is then left to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come.

This view is flawed. It fails to consider the potential campaign finance violations, as suggested by the facts so far known, under existing law. These violations are criminally enforceable.

It would not be the first time Congress wrestled with these questions of foreign interference with the US electoral process. Following the 1996 elections, the Republican Party concluded that the victorious Bill Clinton had benefited from foreign intervention in his election. Its Senate majority organized hearings, chaired by the late Senator Fred Thompson, who opened them with the declaration that high-level Chinese officials had committed substantial sums of money to influence the presidential election. The ensuing investigation, which included a parallel criminal inquiry, did not live up to Senator Thompson’s most dramatic claims, but Congress later amended the law to tighten the long-standing prohibition against foreign national spending in federal elections. On this point, there was bipartisan unity: that the law should stand clearly and without gaping loopholes against foreign interference in American elections.

Then the issue made a dramatic return in this last presidential election, but with a major difference. This time, there is no doubt that a foreign state, Russia, devoted resources to influence the outcome of the 2016 election. But unlike 1996, the manner of this intervention—the hacking of emails, the dissemination of fake news—has directed much of the legal discussion to computer security and espionage statutes. The controversy has not had the “feel” of a classic case about political spending. It has come across in press reporting and public discussion as a tale of 21st century cyber-crime and foreign intelligence service skullduggery—more sophisticated international intrigue than Watergate’s “third-rate burglary” and associated cover-up. “Unlike the Watergate investigation, which began with a break-in,” the New Yorker’s and CNN’s Jeffrey Toobin has written, “it is not immediately clear what crimes may have been committed.” And even if there might be criminal wrongdoing somewhere in this Trump campaign-Russia relationship, commentators have tended to doubt that there is yet sufficient hard evidence of it.

[Gothmog]

7. Campaign Finance Law: When Collusion Becomes a Crime: Part II

Here is more of this analysis https://www.justsecurity.org/41795/campaign-finance-law-collusion-crime-part-ii/

It follows that the evidence in support of the “substantial assistance” would be different in quantity and nature from what is needed for a “coordination” claim. The evidence on the public record shows the Trump campaign encouraging the Russian activities and making active use of the hacked results. If there is a doubt that this is enough, the answer is not to return to the coordination rules, devised mostly for other cases: This only confuses the issue. Rather than only look “externally” for direct communications between campaign and foreign government, the investigation would focus its efforts more “internally,” on the campaign’s intent to build this de facto political alliance with Russia.

Some of the questions would be:

What do the records of the campaign–and the sworn testimony of campaign aides–establish about the strategic importance to the campaign of these Russian activities?

Did the campaign decide that it would not denounce the Russians, either on its own initiative or in response to press queries, because it did not wish to discourage them from continuing on their course?

Was the message intended for Russia discussed during preparations for the presidential debate, which would explain Mr. Trump’s special care in refusing to assign direct blame for the hacking to the government or to reject any assistance from the hackers?

What were the specific plans for active messaging around the hacked emails–in the press, in the preparation of surrogates for media appearances, and in the remarks prepared for or by the candidate for rallies and his own press interviews?

If there is evidence of this kind, it would match up with the known campaign and Trump handling of the Russia issue and answer any question of intent. The president’s open praise for the hacking, his stated “love” of Wikileaks, his refusal to condemn any state interference in the elections, could not be passed off as “Trump being Trump,” as the candidate just playing with the issue and relishing the coverage that came with it. Instead these actions, together with other evidence of intent that may still come to light, would represent the execution of a very specific campaign strategy to provide substantial assistance to the Putin regime’s program of intervention in an American presidential election.