THE CASE OF CRIMINAL VERSUS NON-CRIMINAL COLLUSION

Collusion is not itself a crime. Many people hear “collusion” and think about something akin to the legal concept of “conspiracy,” which is when two or more people agree to commit an illegal act. But there can be collusion that doesn’t involve law-breaking.

Even if we find out that Donald Trump had daily phone calls with Vladimir Putin to chortle together about Hillary Clinton’s impending demise, it wouldn’t necessarily be a violation of any criminal code. It might be, but it wouldn’t always be. There are plenty of activities that might be highly inappropriate and politically consequential but do not violate any criminal law. It all depends on exactly what they’re colluding to do. If the Trump campaign was planning with them to commit illegal acts  like hacking into Democratic email accounts then it would be a crime. Campaign finance law forbids foreign nationals from providing “anything of value” to a campaign, which could give prosecutors wide latitude to pursue a criminal case in connection with collusion.

But the point is that while you could have collusion that is criminal, you could also have collusion that didn’t violate the law, but would still be a grave political violation, one we’d demand to be addressed but that wouldn’t necessarily land anyone in jail.

That means that whatever “proof” of collusion we get may not result in something as definitive as a jury verdict. It will always be subject to interpretation and dispute, and President Trump will always have behind him a formidable media apparatus that will justify and excuse literally anything he does. Every new revelation will be met with furious and desperate pushback from the White House, the conservative media and most Republicans in Congress, as they all insist that whatever the Trump campaign did was completely benign, it wasn’t collusion at all.

So what would collusion actually mean? It would mean that the Trump campaign and the Russian government (or its representatives) undertook some kind of common, cooperative effort to achieve their shared goal of undermining Hillary Clinton and helping Donald Trump.

The most generous interpretation of the campaign’s actions at least the ones we’re aware of so far  would be that while they were well aware that the Russian government was trying to help them, and while there were some initial contacts between campaign representatives and people connected to or acting on behalf of the Kremlin, they never actually got around to working together in an ongoing way. They certainly can’t claim ignorance about Russia’s intentions, since by the summer of 2016 there had been substantial news coverage about Russian meddling. The candidates even argued about it in their final debate, during which Clinton challenged Trump to condemn Russia’s activities and reject their help.

In any case, as of now, the strands of collusion are suggestive but hardly definitive. They paint a picture of people trying to arrange collusion, but not necessarily doing so.

If nothing more is revealed from this day forward, we might be able to say there was no real collusion, even though the Russians were certainly interested in colluding (as evidenced by their repeated efforts to reach out to Trump campaign representatives) and the Trump campaign seemed interested in colluding if the Russians could offer them something useful. But does anyone really think that there are no more revelations to come?

The bottom line is that the question of whether there was “collusion” is too limited. Special Prosecutor Mueller may find that criminal collusion took place, in which case the question will then be whether there are more indictments for it. But if he doesn’t find that, we could still learn that there was collusion that stopped short of criminality, in which case the question of how that should be punished will be up to the political system — the coming elections, oversight in Congress and even a possible impeachment — to settle it. Arguing over whether one conversation or email constituted collusion won’t get us to the most important answers.

Note

Even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime, unless the campaign asked them or helped them to commit criminal acts such as hacking.