Mueller may now have enough to charge collusion as criminal conspiracy 

During the entire investigation, I’ve written or stated that “collusion” is not a crime. But now I’m persuaded that Mueller has legal precedent and probably sufficient facts to convert knowing collusion into a criminal conspiracy charge. I agree with Randall Eliason’s commentary that Mueller has evidence to turn collusion into a conspiracy charge under 18 USC 371, and Mueller is using this approach in his indictments:
“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 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.”
This development is very serious. Obviously, Mueller needs more evidence, but the indictment of 13 Russians contains both this conspiracy charge and facts that might lead a path towards indicting Trump officials and Cambridge Analytics officials. Certainly the obstruction charges just got a lot more potent now that we know of underlying concrete crimes.

The basic facts alleged in the indictments of 13 Russians were not surprising generally to those following the news of Russian manipulation of Facebook and Twitter, but I was surprised by the details of identity theft and bank fraud. Those specific crimes are more concrete and more easily proven than violations of campaign finance law or election law, and that puts anyone who knowingly conspired with them in more serious legal jeopardy. These indictments do mention “unwitting” Americans, which seems exculpatory of the Trump campaign at this stage, but 1) it is a more careful and professional way of phrasing an indictment at this stage, 2) it is wise for Mueller and Rosenstein to avoid unnecessary politically contentious allegations now, and most importantly 3) Mueller unsealed a guilty plea by a “witting” American co-conspirator on the same day, showing that there is more behind this indictment of Russians than innocent mistake. Even if the indictment doesn’t specify Trump campaign knowing conspiracy, that doesn’t mean Mueller already has evidence of it or is on his way of finding it.

Finally, even if the 13 Russians are never arrested and tried, these indictments prevent them from traveling to countries with Interpol agreements with the US, by which these suspects would be extradited. If they were extradited and tried, their prosecution for identity theft and bank fraud could be “paper prosecutions,” meaning a relatively solid and clear case relying on documents much more than live testimony.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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