Trump, Clinton, and the Russia Dossier: Fallacies and False Comparisons

Special Counsel Robert Mueller is investigating Russian interference with the 2016 presidential election and possible collusion with the Russians by members of the Trump campaign. But news that the Clinton campaign and the Democratic National Committee helped fund the infamous “dossier” about President Trump has led to charges that the Clinton campaign also colluded with the Russians. Some, including the President himself, claim the preparation of the dossier is the real scandal and that prosecutors should be examining Clinton, not Trump. Others, including some prominent law professors, claim the dossier demonstrates that both campaigns were equally culpable and so if Trump’s  Russian collusion is fair game, Clinton’s should be as well.

These arguments capitalize on the vagueness of the word “collusion” which, as I wrote here, is not really a criminal law term. It’s easy to claim that if someone working for the Clinton campaign at some point met with someone from Russia, that qualifies as “collusion” and equally deserves to be investigated. But such claims ignore the crucial factual distinctions between the two situations. They also rely on various logical fallacies that only serve to obscure the real issues.

Mueller’s investigation is focused not on “collusion” but on allegations of conspiracy and related criminal offenses. When it comes to potential criminal violations, the preparation of the dossier has almost nothing in common with the allegations surrounding the Trump campaign. Claims to the contrary are simply a smokescreen.

Background: The Trump Dossier 

The dossier consists of information gathered about Trump’s activities and connections in Russia and possible coordination with Russia to influence the presidential campaign. Work on the dossier was initially funded during the GOP primaries by an anonymous Republican who was opposed to Trump. After Trump locked up the nomination, the Democratic National Committee and Clinton campaign agreed to continue funding the research.

The dossier was prepared by a company called Fusion GPS. To do the work, Fusion retained the services of Christopher Steele, a former British intelligence agent with extensive experience in Russia and ties to the U.S. intelligence community.

Steele was so troubled by what he found that he shared the information with the FBI. The intelligence community found the information sufficiently credible that FBI Director James Comey briefed both President Obama and President-elect Trump on the dossier’s contents after the election. U.S. intelligence reportedly has verified some of the allegations in the dossier and has been unable to verify others. There are recent reports that Steele believes the dossier will be proven to be 70-90% accurate.

White House Response: What About Hillary?

The White House has argued that the preparation of the dossier represents the real Russia scandal. President Trump has Tweeted:

White House press secretary Sarah Huckabee Sanders recently said: “The real collusion scandal as we’ve said several times before has everything to do with the Clinton campaign, Fusion GPS and Russia.”  Referring to Democratic funding of the dossier, Fox News commentator Chris Wallace opined that there was more evidence of Democractic collusion with the Russians than of Republican collusion.

This tactic is a rhetorical deflection commonly known as “whataboutism.”  When accused of something, the whataboutist doesn’t respond on the merits but essentially charges the accuser with hypocrisy by pointing to something the accuser has done that is allegedly similar. Ironically, “whataboutism” is thought to have originated as a Soviet propaganda technique.

The “whataboutist” response is a fallacy because it does not address the merits of the underlying charge. Assume for argument’s sake the Clinton campaign did do something wrong by participating in the preparation of the dossier. That would not detract from any culpability that those involved in the Trump campaign may have for working with the Russians. If I robbed the bank it doesn’t affect my guilt if I respond by saying, “Yeah, well, what about you — you robbed the liquor store!”

So even if the Clinton campaign may have something to answer for based on the preparation of the dossier, that doesn’t demonstrate the Trump campaign did nothing wrong or that Mueller’s investigation has no basis. And even if both campaigns were culpable, many would agree that investigation of the candidate who actually won the election and is the sitting President should be a higher priority than the investigation of a private citizen who lost.

But this is all hypothetical. In terms of potential criminal violations, the preparation of the dossier is not at all similar to the alleged activities of the Trump campaign. The “whatabout” arguments simply create confusion and deflect attention, which is, of course, precisely their purpose.

Langdell Library – Harvard Law School

The Law Professor Responses: The Fallacy of False Equivalence

A different logical flaw is displayed by two prominent law professors: Alan Dershowitz of Harvard and Jonathan Turley of George Washington University. Both have repeatedly argued that collusion is not a crime and that there is no basis for a criminal investigation of the Trump campaign. When the dossier allegations emerged, Dershowitz and Turley seized on them to accuse liberals of hypocrisy. If you support a criminal investigation of the Trump campaign, they argued, then you must also support a criminal investigation into the Clinton campaign’s role in the preparation of the dossier.

In a series of Tweets on November 5th and 6th, Dershowitz repeatedly claimed that the Trump and Clinton campaigns were basically on equal footing when it comes to Russia:

“Do you agree that Clinton shouldn’t be prosecuted for a non crime? Why is it irresponsible to make same argument re Trump?”

“Neither side should be making up crimes against the other”

And, in a masterful example of another fallacy, the straw man:

“Should there be one law for Democrats & a different one for Republicans?”

For his part, Turley wrote in an article for The Hill and on Twitter that he was skeptical of criminal allegations concerning either campaign, but that sauce for the Trump gander was sauce for the Clinton goose: “If seeking dirt from the Russians on Clinton is now a federal crime, how about seeking dirt from Russian sources against Trump?”

These arguments suffer from the fallacy known as false equivalence. They assert that the two cases are fundamentally the same and should result in the same outcome. But about the only thing the allegations against Clinton and Trump have in common is that both involve campaigns and Russia. Otherwise the facts and circumstances are not at all equivalent. And when it comes to criminal law and criminal investigations, facts matter.

The Trump Campaign vs. the Dossier

Profs. Dershowitz and Turley argue that if a criminal investigation of the Trump campaign is appropriate, then an investigation into the preparation of the dossier would be as well. But based on what we know so far, there are critical factual differences between the two.

Historical research v. proactive interference – The most important distinction is that between gathering historical information and proactively working to influence the campaign. Steele prepared his dossier by gathering intelligence about Trump and Russia. He did research and passed the information along. There is no allegation that he or anyone else in the Clinton campaign collaborated with any Russians to do anything in the future to influence the campaign or undermine Trump.

The Trump campaign, on the other hand, is suspected of possibly working proactively with Russian nationals to influence the outcome of the election. Mueller is investigating whether any members of the Trump campaign may have cooperated with Russians concerning leaks of emails stolen from the Democratic National Committee and Clinton campaign managerJohn Podesta, to create phony Twitter and Facebook accounts, and to flood social media with false stories intended to influence the election. There also are allegations that a data-crunching firm called Cambridge Analytica hired by Jared Kushner for the campaign may have helped the Russians target particular areas and demographic groups with their social media campaigns. Contrary to Prof. Turley’s claim, the investigation is not merely about “seeking dirt” about Clinton — it’s about working proactively to influence the election.

Campaign officials directly involved – The dossier was prepared by Steele, who was retained by Fusion GPS, which was hired by a law firm retained by the Clinton campaign and the DNC. There is no allegation that individuals who were part of the Clinton campaign met with any Russian individuals in connection with the dossier or knew what Steele was doing. In fact, Clinton and the leaders of her campaign apparently did not even know about the dossier until reports about it appeared in the press.

Within the Trump campaign, the allegations are that individuals at the very highest level met directly with Russians offering information on Hillary Clinton and claiming to have stolen emails. The infamous June 2016 meeting in Trump Tower with Russians promising dirt on Clinton included top members of the Trump campaign including the president’s own son and son-in-law and campaign manager Paul Manafort. Campaign officials such as Jared Kushner and now-attorney generalJeff Sessions failed to disclose meetings with Russians on their security clearance forms and only later admitted to such meetings. Foreign policy advisor George Papadopolous, who has pleaded guilty and is cooperating with Mueller,  was actively cultivating contacts with Russian nationals and sharing that information with others in the campaign, including at meetings that Trump himself attended.

Potentially dealing in stolen property – The Trump campaign may have accepted help from Russians on matters involving information illegally hacked from the DNC computer system and stolen emails. Computer hacking is a federal crime.  Mueller is investigating whether Trump campaign officials knowingly accepted the stolen emails and actively worked to exploit the information contained in them.

With the Steele dossier, again, the allegation is that it consisted of gathering historical intelligence information from contacts Steele had cultivated over many years. There is no allegation that any of the information stemmed from an illegal source.

Concealing information and false statements – A final distinction lies in how the information was handled by the respective parties. Steele was so alarmed by the information he uncovered that he shared it with the FBI. Those engaged in possibly unlawful collusion with a foreign power do not ordinarily report their own activities to federal authorities.

The Trump campaign, on the other hand, allegedly received information suggesting that a foreign power had unlawfully hacked the computers of a U.S. political party and campaign official. They did not report this information to the FBI. Instead, at a minimum they explored the idea of meeting with the Russians who did the hacking to obtain access to those emails and possibly use them against Clinton.

Trump campaign officials have repeatedly concealed information about their contacts with Russians, revealing that information only when confronted with new evidence that the contacts took place. The most recent example is Attorney General Jeff Sessions, who just this week in testimony on Capitol Hill revealed new information about potential campaign contacts with Russians that he previously claimed not to recall. In addition to constituting possible independent crimes, false statements and concealment provide evidence of corrupt intent and knowledge of wrongdoing.

Comparing Apples and Oranges

The allegations about the Trump campaign may ultimately prove to be unfounded. That often happens in white collar investigations. But the allegations provide a solid basis for an investigation to determine whether any criminal laws may have been violated. When it comes to the dossier, there are no comparable allegations of potential criminality.

We really need to look no further than how the FBI reacted to the two matters. The allegations in the Steele dossier were found by the FBI to justify a counter-intelligence investigation and later a criminal investigation. The allegations were also considered sufficiently serious by the Trump Department of Justice to warrant the appointment of an independent counsel. When it comes to the preparation of the dossier, the FBI not only did not see a basis for a criminal investigation into its preparation, but expressed interest in continuing to fund Steele’s research itself.

Professors Dershowitz and Turley, without the benefit of access to the confidential grand jury investigation or the FBI files, feel confident in saying there is no basis for criminal charges. They apparently believe that Mueller and the team of professionals he has assembled either are incompetent or are political hacks. But the prosecutors’ actions thus far reveal just the opposite.

Saying “what about Clinton” is a convenient diversion, but it’s a sloppy argument that ignores the facts and doesn’t respond to the serious allegations about the Trump campaign. Fortunately, Mueller and his team are unlikely to be distracted.

Like this post? Click here to join the Sidebars mailing list

Mueller Monday: Breaking Down the Charges and Looking Ahead

This past Monday Special Counsel Robert Mueller unveiled the first criminal charges in his ongoing probe of potential ties between Russia and the Trump campaign. Word of an impending indictment leaked last Friday, and Washington was buzzing all weekend about who might be the target. On what the Internet quickly dubbed #MuellerMonday, prosecutors unsealed a twelve-count indictment charging former Trump campaign manager Paul Manafort and his associate Richard Gates.

The charges against Manafort were not a great surprise. The FBI had executed a search warrant at his house last July, and there were reports he had been told to expect an indictment. But Mueller’s other announcement was unexpected: he also unsealed a guilty plea by a former foreign policy advisor to the Trump campaign, George Papadopoulos. It turns out Papadopoulos was arrested last July, was charged under seal, and has been cooperating with Mueller’s office.

The charges indicate that Mueller’s team is moving forward aggressively and effectively. There are likely many more shoes to drop before he is done. And with Monday’s moves he’s sent an unmistakable message to others who may have been involved in any criminal conduct. 

Special Counsel Robert S. Mueller, III

Breaking Down the Charges

Manafort and Gates Overview

The indictment encompasses activity from 2006 to 2017. During that time Manafort ran two different political consulting firms. Gates worked for Manafort and the indictment identifies him as Manafort’s “right hand man.” Beginning in 2006, various pro-Russia political parties and individuals in Ukraine hired Manafort’s firms for lobbying and political consulting, and that work continued for a decade. The defendants allegedly concealed this work from the federal government by failing to register as foreign agents as required.

The defendants used an entity called the European Centre for a Modern Ukraine (the Centre) to retain other lobbying firms in the United States. The Centre was in fact controlled by political leaders in Ukraine working with the defendants. Using the Centre as a front allowed the defendants to distance themselves from the Ukrainian work and conceal it from the government.

Manafort and Gates also allegedly concealed the money they were earning from Ukraine by routing that money through a large number of corporations, partnerships, and bank accounts, including foreign corporations and accounts established in Cyprus, Saint Vincent & the Grenadines, and the Seychelles. To hide the existence of these foreign bank accounts they allegedly failed to report their control over those accounts to the federal government as required, both on their income tax returns and by separate required filings.

In addition, the defendants allegedly used nearly three dozen different offshore entities, primarily located in Cyprus, to wire millions of dollars into the United States to pay for goods, services, and real estate for themselves. None of this money was reported as income by the defendants or by Manafort’s companies. The indictment includes a seven-page detailed list of these payments, which included more than $5 million to a home improvement company in the Hamptons, nearly $1 million to an antique rug store, more than $800,000 to landscape companies in the Hamptons, and more than $1.3 million to clothing stores.

Paul Manafort

Criminal Charges Against Paul Manafort and Richard Gates

 Count One: Conspiracy, 18 U.S.C. 371

Count one charges both defendants with conspiracy under 18 U.S.C. 371. This is an overarching charge that encompasses the entire scheme from 2006 to 2017. The federal conspiracy statute prohibits conspiracies to defraud the United States and conspiracies to commit an offense against the United States. The indictment charges both.

A conspiracy to defraud the United States includes an agreement to impair, obstruct, or impede the lawful functions of the U.S. government. The indictment charges that the defendants’ activities impaired and obstructed the lawful functions of the Department of Justice (which is charged with monitoring the activities of foreign agents) and the Department of the Treasury (which includes the Internal Revenue Service).

The indictment also charges the defendants with conspiracy to commit offenses against the United States, which means a conspiracy to commit any federal crime. It alleges that they conspired to commit the federal crimes contained in the subsequent counts of the indictment.

This is a pretty common structure for a white collar crime indictment. The conspiracy charge up front tells the story of the entire criminal scheme, and it is followed by individual counts of the crimes the defendants allegedly conspired to commit. Conspiracy under 18 U.S.C. 371 is punishable by a maximum of five years in prison.

Count Two: Conspiracy to Launder Money, 18 U.S.C. 1956(h) 

Count two charges that by moving millions of dollars through their various partnerships, corporations, and foreign accounts, the defendants conspired to commit money laundering. Several different money laundering theories are charged as the objects of the conspiracy. The first is that the defendants transferred funds across international borders in order to promote criminal activity, in violation of 18 U.S.C. 1956(a)(2)(A). The second is that the defendants engaged in financial transactions in criminal proceeds with the intent to evade income taxes, in violation of 18 U.S.C. 1956(a)(1)(A)(ii), and knowing that those transactions were designed to conceal and disguise the source, ownership, and control of the proceeds, in violation of 18 U.S.C. 1956(a)(1)(B)(i).

Put more simply, this charge focuses on the defendants’ use of their extensive network of foreign companies and bank accounts to promote their business, conceal their activities and sources of income from the government, and avoid paying taxes. The money laundering conspiracy is the most serious charge in the indictment, carrying a maximum penalty of twenty years in prison.

Counts Three to Nine: Failure to File Reports of Foreign Bank Accounts, 31 U.S.C. 5314, 5322(b)

The Bank Secrecy Act requires U.S. citizens to file reports with the U.S. Treasury concerning any foreign bank accounts they own or have signatory authority over if the balance exceeds $10,000 at any time during the year. These are called foreign bank account reports, or “FBARs.” Willfully failing to file a required FBAR while engaged in other criminal activity is a ten-year felony.

Counts three to six charge Manafort with failing to file a required FBAR for the years 2011, 2012, 2013 and 2014, thus concealing his interest in multiple foreign bank accounts.  Counts seven to nine charge Gates with the same offense for the years 2011, 2012, and 2013.

Count Ten: Failure to Register as Foreign Agent, 22 U.S.C. 612, 618

The Foreign Agents Registration Act (FARA) requires persons who engage in lobbying or public relations work in the United States on behalf of a foreign principal to file detailed reports, under oath, with the Department of Justice. The reports must include the identity of the principal and the nature of the work being done. Count ten charges that between 2008 and 2014 both defendants failed to register as required by FARA for their work on behalf of the Ukrainian government and Ukrainian officials. The FARA violation is punishable by up to five years in prison.

Count Eleven: False and Misleading FARA statements, 22 U.S.C. 612, 618

FARA also makes it a crime to make false or misleading statements in connection with a FARA report. Count eleven charges that in November 2016 and February 2017, both defendants filed documents with the Department of Justice that contained false and misleading statements about their work on behalf of Ukraine. In particular, it alleges that they lied about their own role in the lobbying and falsely claimed that all such work was actually coordinated by the Centre.

Count Twelve: False Statements, 18 U.S.C. 1001

Count twelve charges essentially the same false and misleading FARA statements alleged in count eleven but charges them under a different statute, 18 U.S.C. 1001, the general false statements statute. That statute criminalizes any material false statement made in a matter within the jurisdiction of one of the branches of the federal government. It is also punishable by up to five years in prison.

Summary:

Manafort: Charged in counts 1-6 and 10-12, maximum statutory exposure 80 years.

Gates: Charged in counts 1-2 and 7-12, maximum statutory exposure 70 years.

George Papadopoulos

Criminal Charges Against George Papadopoulos

Papadopoulos pleaded guilty under seal to one count of lying to the FBI in violation of 18 U.S.C. 1001, false statements. His maximum exposure is five years, although his plea agreement indicates he may be sentenced to as little as 0-6  months.

The plea documents contain a statement of facts, which Papadopoulos has admitted as true. He admits he lied to the FBI during an interview on January 27, 2017 about his contacts with Russian individuals while working on the campaign. (Note that this interview was only a week after President Trump was inaugurated, and took place four months before Mueller was appointed Special Counsel.) During that interview Papadopoulos falsely downplayed his interactions with Russian individuals and claimed those interactions took place prior to his work on the campaign.

The plea documents contain a detailed timeline showing that Papadopoulos in fact had extensive contacts with Russian individuals while working on the campaign. These included Russian operatives with shadowy nicknames such as the “professor” and a “female Russian national” who claimed she was related to Vladimir Putin. Papadopoulos had repeated contacts with these individuals, trying to broker meetings between Russian government officials and members of the Trump campaign. They reportedly told Papadopoulos that Russia could offer “dirt” on Hillary Clinton and that they had “thousands of emails.” At one point the “female Russian national” told him, “We are all very excited by the possibility of a good relationship with Mr. Trump.”

Papadopoulos repeatedly advised other members of the Trump campaign (including an unidentified “senior policy advisor” and “high-ranking campaign official”) of his progress in his contacts with the Russians, and was encouraged to keep pursuing them. These included communications about the Russia ministry of foreign affair’s interest in a possible meeting with Trump in Russia. After repeated communications about a possible “off the record” meeting with Russian officials, a “campaign supervisor” encouraged Papadopoulos to make the trip, if feasible. The proposed trip never actually took place.

Although the Papadopoulos plea contains detailed information about his efforts to work with Russian nationals on behalf of the campaign, he is not actually charged with any crimes related to his Russian contacts. Instead, he pled guilty to lying to the FBI when interviewed about those contacts.

What to Expect Going Forward

The release of both sets of charges on the same day was a shrewd strategic move by Mueller. Manafort, who apparently has refused to cooperate, ends up indicted and potentially facing a decade or more in prison. Papadopoulos, who chose to cooperate and plead guilty, faces a single, relatively minor felony charge and may avoid jail altogether. The message to future witnesses is clear: be like George, not like Paul.

President Trump himself was quick to point out that the charges against Manafort primarily involve conduct that took place before he was involved in the campaign:

It’s true that most — though not all — of the alleged crimes in the indictment predate Manafort’s work on the campaign, but that’s largely beside the point. Mueller’s purpose, in addition to pursuing criminal charges that are fully justified in and of themselves, is to pressure Manafort into cooperating in the broader investigation. The indictment gives him the leverage to do that. As a campaign manager who also had extensive ties to Russia, Manafort may be uniquely situated to provide information central to Mueller’s investigation. He will now be under tremendous pressure to cooperate and share that information to help himself out in his own case.

The nature of the charges is particularly bad news for Manafort and Gates. These financial charges are tough to defend against. They don’t depend on a lot of nuance or witness credibility. The indictment spells out the paper trail in excruciating detail, and the jury needs only to follow the money. There are not many obvious defenses that leap off the pages of the indictment.

Manafort and Gates also need to be aware that this could be just the beginning. The allegations in the indictment suggest other potential charges that have not yet been filed, including tax crimes and bank fraud. Mueller’s team always has the option of bringing a superseding indictment to add more charges. It’s also possible the New York Attorney General could file state charges — and those would be outside the reach of President Trump’s pardon power.

The case against Manafort and Gates will move forward now in the ordinary course, with motions, discovery, and potentially a trial. It will occupy the time of a couple of members of Mueller’s team, but the rest will continue to move the broader investigation forward. Either or both of the defendants could decide to plead guilty at any time. Presumably they will have discussions with the Special Counsel’s office about possible cooperation — a prospect that has to make others involved in the campaign extremely uneasy.

A “Proactive Cooperator”

As for Papadopoulos, there has been a lot of speculation about what his cooperation over the past few months may have entailed. It’s all guesswork for now  – but keep in mind that Mueller had him charged under seal, to keep it a secret. One reason to do that would be if Papadopoulos was covertly assisting in the investigation. Speculation that this might have happened was further fueled by a paragraph in his plea agreement referring to him as a “proactive cooperator.”

Whether Papadopoulos actually worked with the FBI will be revealed in due course. It’s certainly possible that investigators could have had him make recorded phone calls, or arrange meetings with other targets while wearing a wire, to talk about the events under investigation. Or his cooperation may have simply involved providing testimony and documents about past conduct.

The other important aspect of Papadopoulos’s case is the detailed timeline and statement of facts in support of his plea. Although it contains pseudonyms like “senior campaign official,” everyone knows that Bob Mueller’s team knows who those people are. Investigators appear to know in great detail what happened during the campaign. And if future witnesses try to come in and lie to them, they will find themselves in the same boat as Papadopoulos. Once again, the strength of the charges and the amount of detail in the documents sends a clear signal that these investigators aren’t playing around and won’t be easily fooled.

The documents in Papadopoulos’s case don’t prove that collusion with Russia took place — although to steal a phrase from John Dickerson, they certainly establish that the Trump campaign was “collusion curious.” Whether any collusion or attempted collusion that did take place actually amounts to a crime is yet another question. But the guilty plea does make it clear that Mueller’s team is deep into examining the operations of the campaign and potential ties to Russia, and already knows a great deal.

Finally, the release of Papadopoulos’s documents further highlights the jeopardy in which Manafort finds himself. There is widespread agreement that the “senior campaign official” referred to in Papadopoulos’s plea is Manafort, who is now on notice that Mueller has an insider telling him all about the campaign, Russia, and the role played by Manafort and others. If Manafort ends up meeting with Mueller’s team about those issues, he knows he can’t get away with hiding the ball.

Mueller’s team appears to be pursuing a classic investigative strategy of building cases against lower-level players, persuading the to “flip” and cooperate, and moving up the ladder. Whether Manafort flips or not remains to be seen, but regardless, there’s every reason to believe the Special Counsel is just getting started.

Like this post? Click here to join the Sidebars mailing list

Yes, Colluding With Russians to Interfere with the Election Is a Crime

The Special Counsel and several Congressional committees are investigating Russian interference with the 2016 election and the possible involvement of Trump campaign officials. The investigations are in their early stages, and it’s not yet clear whether any collusion took place. But some have suggested that even if it did, it would not be criminal.

Fox News commentator Brit Hume recently made this claim on Fox News Sunday. When one of the panelists noted that a grand jury in Alexandria, Virginia was conducting a criminal investigation, Hume interrupted:

But what crime? Can anybody identify the crime? Collusion, while it would be obviously alarming and highly inappropriate for the Trump campaign, of which there is no evidence by the way, of colluding with the Russians — it’s not a crime.

Hume was echoing a claim made by other Fox News pundits and supporters of the president. They imply the investigations must be politically motivated because collusion with Russians to interfere with our election, even if it did take place, would not be criminal.

No one knows yet what the various investigations will reveal. It’s certainly possible that no criminal misconduct will be found. But it’s wrong to suggest that criminal law is not even implicated here. If Trump campaign officials actively worked with Russians seeking to influence the outcome of the election, there are a number of potential criminal violations.

Collusion is like criminal conspiracy, a partnership in crime

The Most Likely Charge: Criminal Conspiracy 

Collusion is defined as a secret agreement to cooperate in some dishonest endeavor. This sounds a lot like criminal conspiracy, which prohibits agreements to pursue a criminal end. And indeed, the potential charge that most clearly applies to the Russian collusion allegations is the federal conspiracy statute, 18 U.S.C. § 371.

Section 371 prohibits two kinds of conspiracies: conspiracy to commit any offense against the United States and conspiracy to defraud the United States. Both theories potentially apply to any Russian collusion. The nature of a conspiracy charge makes it particularly appropriate for these allegations.

In a conspiracy case the offense is the agreement itself – the partnership in crime. A defendant must join the agreement with the intent to further its criminal objectives. But a defendant need not personally commit the crime that is the object of the conspiracy. In other words, it’s a crime to conspire to help another person commit an offense even if you don’t commit it yourself.

You also can conspire to help someone else commit a crime that you couldn’t possibly commit yourself – for example, because the statute doesn’t apply to you. The Supreme Court recently affirmed this principle in Ocasio v. United States, a case I wrote about here.

Finally, a conspiracy does not have to be successful. Conspiracy is a separate offense independent of the underlying object of the conspiracy. If the crime you conspire to commit is never carried out, for whatever reason, you can still be prosecuted for the conspiracy itself.

These features of conspiracy law have some obvious implications for any investigation of Russian collusion. For example, if Trump officials conspired to help Russians interfere with the election, they could be liable for conspiracy even if only the Russians did the actual interfering.

Similarly, if Trump officials conspired to help Russians violate bans on foreign involvement in U.S. campaigns, they could be liable for that conspiracy even though they were not foreign nationals and could not have committed the crime themselves.

Finally, because a conspiracy charge does not require proof that the conspiracy was successful, it would not require prosecutors to prove that any attempted interference actually impeded the election or affected the outcome.

Conspiracy to Defraud the United States

Section 371 prohibits conspiracies to defraud the United States “in any manner or for any purpose.” Typically, to defraud means to use dishonest methods to deprive someone of money or property. Using traditional mail or wire fraud to charge that the public was defrauded of its right to a fair election therefore would be problematic, because the intangible right to a fair election is not “property.”

But for purposes of Section 371 conspiracies to defraud the U.S.,  fraud has a different and broader meaning. In 1924 in Hammerschmidt v. United States  the Supreme Court held that conspiracy to defraud the U.S. includes schemes “to interfere with or obstruct one of its lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest.” A conspiracy to defraud the U.S. under 371 does not need to result in a loss of money or property by the federal government.

This theory is often used to charge schemes that involve disguising transactions to evade some government regulatory program, or hiding assets to thwart the IRS. Individuals can be guilty of conspiracy to defraud the U.S. even if their underlying conduct, standing alone, would not be illegal. They can also be found guilty even if prosecutors can’t prove that the government lost money as a result.

Running a free and fair Presidential election is a core lawful function of the federal government. Any agreement to secretly and dishonestly attempt to interfere with a federal election would fall squarely within section 371’s prohibition on conspiracies to defraud the United States.

This theory has been used in election fraud cases in the past. For example, in the 1990’s there was a scandal involving China’s attempts to promote its interests within the U.S. government and potentially influence the 1996 presidential election. Charlie Trie, a Chinese-American with ties to the Clintons, was convicted for violating various campaign finance rules by exceeding legal contribution amounts and concealing the true identity of donors. Among the charges in his indictment: conspiracy to defraud the U.S. under Section 371 by impairing and impeding the legitimate functions of the Federal Election Commission.

Conspiracy to Commit an Offense Against the United States 

Section 371 also prohibits conspiracies to commit any offense against the United States. This applies to conspiracies to violate any criminal statute. The United States government does not need to be the victim of the intended crime.

Russian interference with the election reportedly involved hacking the Democratic National Committee computers and possibly other computer systems (including those run by state election officials). Breaking into computer systems without authorization violates 18 U.S.C. § 1030, the Computer Fraud and Abuse Act. The CFAA criminalizes a wide range of activities involving hacking or other unauthorized access to and theft of information from private and government computers. Any conspiracy to engage in such hacking could be charged as a conspiracy to commit an offense against the United States.

Suppose, for example, Trump campaign officials agreed to somehow assist Russian hackers who were gaining unauthorized access to the DNC and other computers. That agreement could constitute a conspiracy to violate the CFAA, and could be prosecuted under Section 371. Because the crime is the conspiracy, Trump campaign officials could be charged even if the Russians did all of the actual hacking. The Russians also could be charged with violating the CFAA itself, but both the Russians and the Trump campaign officials who assisted them could be charged with conspiracy.

Conspiracy to impede the FEC could violate 18 USC 371

Conspiracy to Violate Election Laws

Another possible conspiracy to commit an offense against the United States would be conspiracy to violate federal election laws. I’m no authority on election law so I’m not going to venture very far here. But if there is a potential criminal violation of election laws, then campaign officials could conspire with Russian individuals to violate that law.

Election law experts have suggested these facts could violate prohibitions on foreign contributions to our elections. For example,  52 U.S.C.§ 30121 outlaws election contributions and donations by foreign nationals. It may be that activities by Russian individuals, such as stealing and then releasing emails damaging to the Clinton campaign, could be characterized as contributing something of value to the Trump campaign.

If Russians violated the law against foreign contributions and Trump campaign officials conspired to help them do so, the campaign officials could be guilty of a conspiracy to violate that election law. Again, this is true even though they were not foreign nationals and so could not violate that law directly.

Aiding and Abetting

Title 18, § 2 of the U.S. Code provides that anyone who “aids, abets, counsels, command, induces or procures” the commission of a crime can be found guilty of committing the crime themselves. This criminal law theory of aiding and abetting is also potentially relevant to the Russian collusion allegations.

The theory would be quite similar to the conspiracy charge, but with less focus on proving the criminal agreement. If the evidence revealed that Trump or his campaign officials asked or encouraged the Russians to interfere with the election or assisted them in any way, they potentially could be charged as aiders and abettors. Potential charges could include aiding and abetting a violation of the CFAA or of federal election law.

Accessory After the Fact and Misprision

Suppose Trump campaign officials got involved with Russian hackers only after the hacking was already completed, and worked with them on things like timing the release of certain emails. Conspiracy to violate the CFAA might not be a viable charge, because you can’t conspire to commit a crime that is already completed.

At that point a couple of other options would come into play. Accessory after the Fact, 18 U.S.C. § 3, punishes anyone who knows a crime against the U.S. has been committed and then “receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.” Anyone who worked with Russian hackers to help them conceal their activities and avoid detection or apprehension could be considered an accessory.

A related charge, Misprision of a Felony, 18 U.S.C. § 4, punishes anyone who has actual knowledge of a felony that has been committed against the U.S. and “does not as soon as possible make known the same to some judge or other person in civil or military authority.” Again, if Trump campaign officials got involved with Russian hackers after the hacking was completed and cooperated with them rather than reporting the hacking, misprision would be a potential charge.

Yes, Collusion Can Be Criminal

Once again, for the record: I’m not saying any of these crimes took place. I’m not suggesting that anyone will be charged, or should be charged. As with any criminal case, everything is going to depend on the facts and what evidence the government can present. But it’s simply nonsense to claim there is no basis here for a criminal investigation.

Some have suggested this idea is being floated as a trial balloon by the Trump administration to gauge the public reaction. It’s akin to the argument that the president couldn’t obstruct justice because, well, he’s the president. The apparent implication is that no matter what went on with the Russians or any attempts to thwart the FBI investigation, the investigations are just a political “witch hunt.” Nothing criminal to see here, folks, move along now.

We don’t know what the investigation will ultimately reveal. But we should dispense with the idea that colluding with Russian individuals to influence the outcome of our Presidential election would not be a crime. If the evidence is there, federal prosecutors have plenty of tools with which to build a case.

Like this post? Click here to join the Sidebars mailing list

Emoluments Clause Violations as a Conspiracy to Defraud the United States

If President Trump violates the Constitution’s Emoluments Clause, what might be the remedy? One possibility is a suit challenging such violations as a conspiracy to defraud the United States.

Since Donald Trump was elected, a great deal of attention has been focused on the Foreign Emoluments Clause. This previously obscure provision forbids federal officials from accepting any gifts or emoluments – payments for services rendered — from a foreign state. President Trump maintains an ownership interest in his far-flung business operations and has resisted calls to divest. As a result, many believe he has been violating the Clause from the moment he was sworn in. (For a more detailed discussion of the Emoluments Clause and what it prohibits, see my earlier post here.)

Just last week there were reports of a new Emoluments Clause issue. The Trump Organization apparently had been in a decade-long legal battle to secure a trademark for the Trump name in China. One month after Trump’s inauguration, China finally granted the trademark – even though doing so may have been a violation of its own regulations. This decision came a few days after Trump publicly reaffirmed the U.S. commitment to a “One China” policy. He had expressed some skepticism about that policy shortly after he was elected. The timing of these events raises obvious concerns about the President’s possible divided loyalties and about foreign governments gaining leverage over him. Given Trump’s extensive international holdings, similar potential issues abound.

The Difficult Question of Standing to Sue

If indeed Trump is violating the Emoluments Clause, who can bring a lawsuit to remedy that violation? Plaintiffs in a lawsuit must have standing, a concrete injury that can be addressed by the court. Finding someone with legal standing is a serious obstacle to enforcing the Emoluments Clause. Some argue that only political remedies (including impeachment) are possible. These commentators believe a court likely would find that any private lawsuit based on the Clause presents a non-justiciable political question.

A public watchdog group called Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit shortly after the inauguration, claiming that Trump is violating the Clause. CREW asserts it has standing because Trump’s actions have forced it to devote time and resources to fighting him on these issues.  As a result, CREW maintains, it cannot do much of the other work it would otherwise be doing. CREW has some very prominent attorneys working on the case, but many are skeptical of this standing theory.

Others have suggested a competing business might have standing. For example, if the Bank of China sent all its business to the new Trump hotel in Washington, D.C., a competitor hotel might claim it was injured. But it’s not clear a court would uphold such a private right of action. The Clause’s purpose is to ensure government integrity, not to protect private competitors. And even if standing were found, such a lawsuit likely would face significant hurdles in proving causation and damages.

Image of President Trump at a rally - he may have been violating the Emoluments Clause since day one.

Quo Warranto: A Possible Solution to the Standing Issue

Last week a new legal theory concerning how to enforce the Clause began making the rounds (see articles here and here). Prof. Jed Shugerman at Fordham University Law School first proposed the idea. It avoids the problem of establishing standing to sue President Trump directly. Instead, it focuses on pursuing the Trump Organization for its participation in the President’s receipt of foreign emoluments.

Shugerman notes that states may use a procedure know as quo warranto to bring a civil action against a corporation engaged in illegal behavior. Corporations are creatures of state law, and the state has the power to discipline those that act illegally. For example, New York Business Corporation Law § 1101 allows the state attorney general to bring an action for dissolution against any corporation that has “transacted its business in a persistently fraudulent or illegal manner.” Shugerman argues a state could use this procedure to charge a Trump corporation with serving as a conduit for improper emoluments.

The New York Attorney General would be an ideal candidate to bring such a case, Shugerman says, because the Trump Organization is organized under the laws of New York. If the suit were successful, a court could revoke the Trump Organization’s corporate charter. Shugerman and some others have already filed a letter with the New York Attorney General asking him to consider such a lawsuit. Shugerman believes a number of other jurisdictions could bring similar claims against Trump organizations within their state.

The beauty of Shugerman’s theory is that it avoids the problem of finding private individuals with standing to sue the official violating the Emoluments Clause. Instead it involves public officials – the state attorneys general – filing suit against a private company. There’s no question that the attorneys general have standing to bring such a proceeding. But I think potential legal issues remain.

What Constitutes Illegal Behavior for a Quo Warranto Proceeding?

Prof. Shugerman’s theory faces at least one potential roadblock: proving the Trump Organization or related corporations are conducting business in a “fraudulent or illegal manner” within the meaning of the law. For example, Shugerman suggests a suit could be brought against Trump’s new hotel in D.C. for violating its lease with the General Services Administration. But violation of a lease typically would be considered just a breach of contract, not fraudulent or illegal. It would be surprising if every lease dispute potentially subjected a corporation to an action for dissolution.

Similarly, private corporations typically can’t violate the Constitution, which applies to government actors. So it’s probably unlikely the New York legislature had constitutional violations in mind when it wrote the statute prohibiting illegal corporate behavior. A quo warranto suit based on a constitutional violation would face a strong argument that the statute does not apply.

Even if constitutional violations could serve as the illegal conduct for a quo warranto proceeding, it’s not clear the Trump Organization would violate the Emoluments Clause by receiving gifts from a foreign state. The Emoluments Clause bars only actions by federal officials. On its face the Clause does not prohibit anything done by the Trump Organization or any private company. The corporation is a separate legal entity, even if it does bear Trump’s name.

Prof. Shugerman suggests a state attorney general could hold the Trump Organization liable as the President’s corporate “conduit.” I’m not so sure. In general it’s true that corporations can be held responsible for actions of their agents under the doctrine of respondeat superior (“let the master answer”). This holds true for criminal violations as well as civil. But it’s not clear the same principle should apply when it comes to violations of a constitutional obligation imposed only on a government official.

In addition, under respondeat superior the actions of the agent must be within the scope of his authority. Trump reportedly has turned control of his organization over to his sons. If that’s the case, then he arguably no longer has authority to act on behalf of the corporation. And if that’s true, the corporation could not be held vicariously liable for any of his conduct. When it comes to accepting emoluments the actions are more likely to be taken by Trump’s sons or other corporate officials – but the Emoluments Clause does not apply to them.

In short, I’m not confident that trying to hold the Trump Organization vicariously liable for Trump’s own constitutional violations will work. But all this got me thinking about whether there might be other legal theories under which a state attorney general could argue that Trump-owned companies act unlawfully when they receive emoluments. And that led me to a core white collar criminal statute: conspiracy to defraud the United States.

Image of the US Constitution - the Emoluments Clause is contained in Article I

The Emoluments Clause and Conspiracy to Defraud the United States

The federal conspiracy statute, 18 U.S.C. § 371, prohibits two types of conspiracies: conspiracy to commit an offense against the United States and conspiracy “to defraud the United States, or any agency thereof in any manner or for any purpose.” A conspiracy requires that two or more people knowingly enter into an agreement to achieve an unlawful purpose and that at least one of them takes some action in furtherance of that agreement.

Conspiracy to commit an offense against the U.S. usually means conspiracy to commit a federal crime – conspiracy to commit securities fraud or conspiracy to obstruct justice, for example. But the second prong of the statute, conspiracy to defraud the U.S. “in any manner or for any purpose,” has a broader reach.

To defraud someone usually means to deprive him of money or property. But conspiracy to defraud the United States under section 371 also includes any conspiracy to impair, obstruct or impede the lawful functions of the U.S. government. In Hammerschmidt v. United States in 1924, the Supreme Court held that conspiracy to defraud the U.S.  includes schemes “to interfere with or obstruct one of its lawful government functions by deceit, craft, or trickery, or at least by means that are dishonest.”

The statute applies to schemes such as disguising transactions to evade some government regulatory program, or hiding assets to thwart the IRS. Individuals can commit the offense even if their underlying conduct, standing alone, would not be illegal. The scheme need not result in any financial harm to the government.

Another important aspect of conspiracy law is that not all co-conspirators need to be capable of committing the underlying offense that is the object of a conspiracy. For example, just last spring the Supreme Court held in Ocasio v. United States that private citizens could be convicted of conspiracy to commit extortion under color of official right. Because they were not public officials, they could not be convicted of the extortion offense themselves. But the Court held they were still capable of agreeing to help a public official commit extortion, and thus could be found guilty of conspiracy.

So with the Emoluments Clause the argument would go like this: the Clause is part of a constitutional structure set up to ensure that officers of the United States are free from outside influences and conflicts of interest. The members of the Trump Organization and foreign government agents who provide benefits to that Organization (and thus indirectly to Trump himself) are impairing, obstructing, and impeding that government function by facilitating the acceptance of improper emoluments by the President. This constitutes a conspiracy to defraud the United States under section 371.

Although corporate officers and foreign agents could not violate the Emoluments Clause themselves, they may conspire to help President Trump violate it. And although their actions may not violate any other law, that doesn’t matter. Those actions may still constitute a conspiracy to defraud the United States by interfering with its proper operations.

This would be analogous to cases involving bribery. Laws against bribery are similar to the Emoluments Clause in that both seek to prevent government officials from being swayed by improper outside influences. Prosecutors have charged schemes to bribe federal officials as conspiracies to defraud the United States. Bribery corrupts the political system and thereby impairs the lawful government functions of the United States. The same is true of violations of the Emoluments Clause.

Image of the Bank of China building. China is one potential source of improper emoluments to President Trump.

Details of a Potential Conspiracy

There are a number of possible co-conspirators in any such case. If we take the China trademark example, co-conspirators could potentially include Chinese officials involved. They could also include any officials within the Trump Organization who took part in the transaction. The Trump Organization itself would be vicariously liable through the acts of those officials. A state attorney general would even have the option of listing the President himself as a co-conspirator. By refusing to divest and by allowing his businesses to accept foreign emoluments, he arguably has joined the agreement.

A conspiracy to defraud must involve some kind of deception or dishonesty. There are a number of possibilities here. Assuming the discussions that led up to something like the China trademark deal are not publicly disclosed, for example, that concealment furthers the scheme to defraud. Other deceptions are likely involved in other potential Emoluments Clause violations. One could even argue that the President’s failure to disclose his tax returns is a part of the deception. By concealing the full scope of his financial holdings and potential conflicts, it helps the conspiracy to succeed.

Of course, it’s not realistic to expect Donald Trump’s own Department of Justice to file a criminal case charging members of the Trump Organization with conspiracy. But that’s not necessary. Building on Prof. Shugerman’s argument, a more promising option is to use conspiracy as a basis to allege fraudulent or illegal corporate behavior in a quo warranto proceeding.

This theory avoids many of the potential quo warranto hurdles discussed above. The unlawful conduct is not the violation of the Emoluments Clause but engaging in a conspiracy to defraud the United States by impeding its legitimate operations. There’s no question that a private corporation is capable of committing that offense. The New York statute quoted above requires that the corporation have engaged in fraudulent or illegal conduct. Participating in a conspiracy to defraud the U.S. fits the bill perfectly.

In a civil proceeding, of course, the plaintiff only needs to prove the conspiracy by a preponderance of the evidence, a much lower bar than the proof beyond a reasonable doubt required in a criminal prosecution. And civil discovery in such a proceeding could lead to disclosure of a great deal of relevant information, including Trump’s tax returns.

Like so much involving the Emoluments Clause, this theory is novel and untested. But given the purpose of the Clause, the breadth of the conspiracy statute’s ban on conspiracies to defraud the U.S. “in any manner or for any purpose,” and the use of a similar theory in bribery cases, I think it’s a compelling argument. A state attorney general or other litigant contemplating a quo warranto proceeding should consider throwing this conspiracy argument into the mix.

Click here to join the Sidebars mailing list and receive e-mail notification of future posts.