Law & the Courts

No Winners in the ‘Collusion’ Wars

President Trump talks to reporters as he arrives for a Senate Republican policy lunch on Capitol Hill, March 26, 2019. (Leah Millis/Reuters)
Both sides are peddling inflated talking points.

‘There was absolutely no collusion!”

“Are you kidding? There was a boatload of collusion!”

I’ve been doing legal analysis in hotly contested cases, including political cases, for about 35 years. By now, I should be used to the insidious word games, as well as the confusion inherent when people imprecisely use ambiguous words because they don’t know any better. Yet it seems like it has never been worse than it is now.

That’s because I’m spoiled. I spent the first couple of decades in the confines of a top-tier judicial system. In legal proceedings, a judge is there to make sure no one plays fast and loose with language. As a young prosecutor in the Southern District of New York, I was very fortunate that my cases were assigned to exceptional judges, who made it their business to mind the court record.

At the time, I didn’t appreciate how valuable that was — judges interrupting the testimony, even if there had been no objection, to clarify what a lawyer or witness meant by some loaded word planted in a question or uttered in an answer. But by the end of the trial, in the transcript that would ultimately be reviewed by appellate courts, there was no way a fuzzy term, such as “collusion,” would be permitted to muddy the waters. Everyone understood what it meant, and didn’t mean, within the four corners of the case.

Politics doesn’t have a judge.

What it has is our marketplace of ideas, so-called. Clarity and truth are supposed to emerge from the crucible of debate. But as any good economist will tell you, markets aren’t perfect; they’re just better than any alternative. Our reliance on robust debate in the political marketplace is better than any other approach, but that doesn’t mean the market always works well. If the number of people seeking to exploit confusion overwhelms the number trying to clarify it, “fake news” always has a chance to become conventional wisdom.

So it remains with “collusion.”

Obviously, Attorney General William Barr’s letter outlining Special Counsel Robert Mueller’s final report has not put an end to our confusion. There are still two camps relying on the ambiguity of the word collusion to argue their opposing positions, indignant that anyone could disagree.

To repeat what we’ve stressed with only middling success for a couple of years: Collusion has two meanings. There is the general, overarching meaning: Collusion always denotes concerted activity, though not of any particular kind — it can be good or bad, benign or sinister, admirable or unsavory. Then there is what, in the context of a criminal investigation, is a very specific meaning: collusion as criminal conspiracy — an agreement between two or more people to engage in conduct that violates a criminal law (which, in the law’s eyes, makes the agreement just as criminal as the crime that is the agreement’s objective).

It is this second, narrow sense that the special counsel is talking about when he reports finding no collusion. Indeed, Mueller (as reflected in the attorney general’s letter) tries to avoid the confusion by not invoking “collusion”; he discusses whether the president or his campaign “conspired or coordinated” with Russia.

In addition, he undertakes to clarify that, by “coordinated,” he means an “agreement — tacit or express — between the Trump campaign and the Russian government on election interference.” To be sure, this clarification itself invites some confusion because “election interference” is yet another ambiguous term. As we’ve just pointed out, a conspiracy is an agreement to commit a crime. There is no crime called “interference.” The word just means to interrupt, influence, or somehow affect some activity. As with “collusion,” some “interference” is legal and some is criminal.

Nevertheless, Mueller is unmistakably referring to the criminal kind of interference. Barr’s letter informs us that when the special counsel speaks of Russia’s “election interference,” he is referring to two schemes: the first to conduct “disinformation and social media operations”; and the second to conduct “computer hacking operations.” Mueller found that the objectives of both of these schemes violated federal criminal law. This finding is more convincing with respect to hacking, an obvious crime, than it is with respect to the propaganda activities — which the special counsel alleged to be a “conspiracy to defraud the United States” by impairing the ability of government agencies (the Federal Election Commission, the Justice Department, and the State Department) to administer federal regulations relating to “foreign involvement in certain domestic activities.”

It is not my purpose to quibble over this theory of fraud. (As explained before, I am not a fan — enough said.) I simply mean to clarify what Mueller found. When he concluded that the Trump campaign did not commit the crime of conspiracy, all he meant was that the campaign was not complicit in Russia’s hacking or its social-media propaganda operation. Period.

In their giddiness this week, Trump advocates have inflated this finding into a Mueller pronouncement that “there was no collusion with Russia.” That is not what he said. Mueller did not conclude that, apart from the two criminal schemes, Russia refrained from all activities that could influence an election. And he did not say that Trump-campaign officials had no meaningful associations and engaged in no concerted activity with operatives of the Kremlin.

Russia tries to influence elections in many ways. So, not coincidentally, does our government. Most foreign-government activities that could conceivably influence an election are legal (and, in the greater scheme of things, they are trivial). There is no doubt that some Trump-campaign officials engaged with Kremlin-connected actors. Some of these engagements — in particular, the Trump Tower meeting in which campaign dirt on Hillary Clinton was expected to be delivered — may have involved Russia’s hope to influence the election. Since the information provided was a dud, I am more inclined to think the Kremlin hoped to put Trump in a compromising position, or to open a dialogue with the potential future president on the Magnitsky Act that Putin so despises. But that’s all speculation. So is the theory that Putin “wanted Trump to win,” as opposed to my surmise that Putin expected Trump to lose — since backing losing factions is the best way to alienate them against the winners and thus sow discord, Putin’s real aim.

Speculation about Russia’s motives aside, when we eventually get to see Mueller’s report, these facts of Trump–Russia interplay will certainly be recited. But before the “there was a boatload of collusion” crowd goes up in a balloon over that, a few points must be made.

First, just as Trump fans are inflating the special counsel’s no-conspiracy finding into a disingenuous “no collusion” talking point, Trump’s detractors have, from the start, disingenuously inflated all Trump–Russia associations into not only crimes, which they are not, but into treason, which is a slander. Up until the night Trump won, Democrats and much of Washington’s political class were fine with Russia, belittling as quaint Cold Warriors any naysayers who saw Putin as more KGB than WTO.

Second, these episodes of Trump–Russia concerted activity were not illegal. If you find at least some of them unseemly, I do too. But it is not a crime for a U.S. candidate to be the preferred choice of a repulsive regime. (Again, I am not convinced that Putin actually wanted Trump to win, but he may have. I doubt neither that the Soviet Union preferred Democrats to Reagan, nor that the Iranian regime preferred Obama to Republicans. So what?) Moreover, it is not a crime for a campaign to seek compromising information on a political opponent — especially if it is truthful information — from reprehensible sources, including foreign ones. In a society committed to free expression and free association, it would be impossible to police such transactions — something to bear in mind when, inevitably, Washington overreacts to 2016 campaign improprieties by trying to ban information exchanges.

Third, the United States government is among the world’s most active meddlers in other countries’ political processes. We reason, as we should, that we are a force for liberty, so this is all to the good. But many lousy regimes in the world are threatened by our meddling, and some — like Russia — are in a position to retaliate. I am not suggesting we should stop being a beacon of freedom; just that we should stop shrieking as if it were shocking that governments interfere in each other’s elections. It is standard. We need to be on guard against foreign meddling, but let’s also remember that our hands are not clean, even if we see virtue in the grime.

Fourth, if, under the guise of “collusion,” we are going to play this game of framing all non-criminal campaign-related contacts with a foreign power as “an attack on our democracy,” then we have to apply the new rules to everyone, not just Trump.

Hillary Clinton’s campaign retained a foreign spy to pry anti-Trump dirt from Kremlin-connected sources. Unlike Trump’s ham-fisted and ultimately futile effort to obtain compromising information on his opponent, the Clinton–Britain–Russia collusion enterprise not only fed anti-Trump propaganda to the media. It also managed to transmit this sensational hearsay nonsense — some of which may have been Russian disinformation — to U.S. intelligence and law-enforcement agencies, which used it to get court warrants and rationalize spying on the opposition political campaign. That may just scratch the surface. There are indications that the Clinton campaign, through its Fusion GPS contractor (the same characters behind the Steele dossier), collaborated with Ukrainian government officials to secure information damaging to Trump — specifically, records of under-the-table payoffs from Kiev to former Trump campaign chairman Paul Manafort. (See the reports from the Daily Caller’s Chuck Ross and The Hill’s John Solomon.)

Collusion? I suppose.

Illegal? No . . . at least not on the Clinton campaign’s part — Ukraine is investigating its own officials for meddling in the U.S. election; and with Mueller’s probe completed, congressional and Justice-Department examinations of potential investigative abuses are ramping up.

Mostly, this stuff is unsavory. I wouldn’t appoint a special counsel to spend two years on it, but the Clinton campaign should be part of any Justice Department or congressional investigation of coordination between U.S. campaigns and foreign powers. No one is going to jail over these shenanigans, but we should be reinforcing norms against both politicized use of spying powers and foreign involvement in our elections.

Trey Gowdy is a perceptive former federal prosecutor and congressman. This week, Gowdy told Fox News he is in the minority of people opposed to disclosure of the Mueller report. In law enforcement, investigative subjects either get charged or they don’t, and when they don’t, the evidence in the case should not be disclosed. If it is released into the court of public opinion, there is no judge there to enforce standards of proof and police the lawyerly manipulation of ambiguous terms like “collusion.”

Gowdy is right. In this instance, alas, what is right is politically unrealistic: There is no way the Mueller report will be withheld. That is why, to my mind, there is no point fighting disclosure, even though we know it will be abused. Better to push for disclosure of everything that would be revealed in a judicial case — the full report spelling out the prosecutor’s evidence, plus all the relevant investigative documents that would tell us why and how the probe was conducted. If we’re going to have at it, let’s have at all of it.

But let’s not pretend there is anything edifying in further plumbing the depths of “Trump–Russia collusion.” When the Mueller report is published, we’ll still be talking past each other, selectively mining the details so one side can say “no collusion,” and the other side can say “boatload of collusion.” No judge, no resolution . . . just fatigue.

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