Editor’s Note: Michael Zeldin, a CNN legal analyst, has served as a federal prosecutor in the Criminal Division of the Department of Justice and was a special counsel to then-Assistant Attorney General Robert Mueller. The opinions expressed in this commentary are his own.
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Michael Zeldin: Because Mueller's investigation is ongoing, we need a scorecard to understand potential crimes in play
"Collusion" isn't relevant to what's been reported, but conspiracy laws could be examined by Mueller, writes Zeldin
We are a long way from having a complete understanding of the facts in the Russia investigation. We also do not know what possible crimes, if any, special counsel Robert Mueller’s investigation may uncover. But, as in baseball, where a scorecard is needed to keep track of the game, having an understanding of the crimes that might be in play as the evidence unfolds should help in navigating the issues that may lie ahead.
“Collusion” is the word used by the media to describe the allegations that underpin the investigation by Mueller into any potential efforts by the Russian government to interfere in the 2016 presidential election and any possible involvement by the Trump presidential campaign. Collusion, however, is a crime known principally in the context of antitrust law. Typical antitrust collusion prosecutions involve price fixing, bid rigging, or market division/allocation schemes.
Outside the antitrust area, a criminally actionable collusive agreement is described as a conspiracy. Indeed, the mandate given to Mueller by Deputy Attorney General Rod Rosenstein does not include the word collusion. Instead, the mandate authorizes an investigation into any “links and/or coordination” between the Russian government and individuals associated with the Trump presidential campaign and to “matters that arose or may arise directly from the investigation.”
The general federal conspiracy statute, Section 371 of Title 18 of the US Code, criminalizes two types of conduct. The statute makes it an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.”
The first clause, referred to as the Offense Clause, prohibits anyone from conspiring to commit any federal offense (i.e., one defined elsewhere in the Criminal Code). The second clause, referred to as the Defraud Clause, prohibits a conspiracy to “defraud the United States.” Unlike the Offense Clause, the Defraud Clause does not require proof of any other criminal offense. It is, in and of itself, a crime.
The courts have interpreted the conspiracy law to require an agreement and at least one step in furtherance of the agreement (referred to as an overt act). For example, two or more people can agree to rob a bank, but if they do not take any steps to put the plan into action (e.g., get a gun or buy a getaway car), they have not committed a crime.
In the context of the Trump-Russia investigation, the key questions are whether any conduct by the Russian government and/or individuals associated with the Trump campaign potentially could constitute a crime, and if so, whether there was a conspiracy to violate the law.
Put simply, and for the sake of discussion only, if members of the Trump campaign were found to have reached an agreement with representatives of the Russian government to try to affect the outcome of the election in Trump’s favor and to have taken steps in furtherance of the agreement, could this conduct potentially constitute a violation of the conspiracy laws?
It is important to note that no evidence of any such agreement has been disclosed publicly, and those associated with the Trump campaign have publicly denied the allegations. Indeed, the president’s son-in-law and senior adviser, Jared Kushner, has said, “I did not collude with Russia,” and he has advised that he does not know of anyone in the campaign who did. In an off-the-record talk with interns, Kushner apparently remarked that the campaign was too disorganized to collude: “We couldn’t even collude with our local offices.”
To violate the Offense Clause of the conspiracy statute, there must be an agreement to violate another criminal law. If there were a conspiracy, what laws might have been violated?
Election laws
Under Section 30121 of Title 52 of the US Code, it is a crime for a foreign national, directly or indirectly, to make a contribution or donation of money or “other thing of value” in connection with a federal election. It also is illegal for a person to solicit, accept, or receive such a contribution or donation.
Key to determining if a violation of the election laws potentially may have occurred is whether providing negative information to discredit an opposition candidate in connection with a political campaign (opposition research) could constitute a “thing of value” under the election laws.
Two Federal Election Commission advisory opinions would appear to support the view that opposition research is a thing of value. In Opinion 2007-22, the FEC advised that the proposed donation of certain printed materials, used in previous Canadian campaigns, without charge to a US congressional campaign would constitute a contribution and, as such, would be prohibited, particularly in light of the broad scope of the prohibition on contributions from foreign nationals. In Opinion 1990-12, the FEC advised that the proposed donation of poll data or analysis to a candidate, which was commissioned by another candidate, would constitute an in-kind contribution.
While there are a number of allegations that members of the Trump campaign may have colluded (or conspired) with the Russians, as of yet, they have not been proven. A particular focus, however, has been on the June 9, 2016, meeting at Trump Tower, which Donald Trump Jr., apparently organized after he was advised that a group of Russians (or persons acting on their behalf) wished to provide to the Trump campaign opposition research on Hilary Clinton.
If it were determined that Donald Trump Jr., in fact, solicited a thing of value (the opposition research), his conduct potentially could provide the basis for a substantive federal election law violation. This is so because the act of soliciting a thing of value (or assisting in such a solicitation) can be, in and of itself, a criminal violation. The law does not require the solicitation must be accepted, that anything must be received, or that the recipient determined that the thing solicited was worthwhile.
Further, if other evidence were produced that indicated that the two sides had entered into an agreement to use the opposition research to interfere in the presidential election (either before or after the June 9, 2016, meeting), and additional steps were taken, a case alleging a conspiracy to violate the federal election laws also potentially could be initiated. (Donald Trump Jr., has denied wrongdoing. He acknowledged that he met with the Russian lawyer who promised information that could be helpful to his father’s presidential campaign but once the meeting began he determined the lawyer had no “meaningful information” on then-Democratic presidential candidate Hillary Clinton. The meeting, he said, ended within 20-30 minutes with no followup action taken.)
Hacking/cybercrimes
Section 1030 of Title 18 of the US Code makes it a crime, among other things, to access knowingly a protected computer (one used in interstate commerce) without authorization and, thereby, to obtain protected information. It also makes it a crime to conspire to commit or attempt to commit an offense under the statute.
Other statutes, including the Electronic Communications Privacy Act (18 U.S.C. 2701) (ECPA) and the federal wiretap law (18 U.S.C. 2511), criminalize both the intentional and unauthorized acquisition of the contents of messages (like emails) and the disclosure/distribution or receipt of communications that have been acquired unlawfully by a third party. Thus, if anyone connected to the Trump campaign were to have asked the Russians to procure the data stolen from the Democratic National Committee or if a person somehow participated illegally in the acquisition of the data, a violation of the wiretap and/or hacking laws potentially could be established.
Similarly, were evidence produced that Russians (whether participants in the June 9, 2016, meeting or over the course of the campaign) illegally obtained information from a protected computer (for example, the computers at the DNC or John Podesta’s personal computer), a substantive violation of Section 1030 potentially could be prosecuted.
And, if evidence were available establishing that members of the Trump campaign conspired in the unlawful access of computers or that they agreed with others that such hacking should occur, they potentially could be prosecuted for conspiracy or for facilitation of these crimes.
Finally, to the extent that any information taken from the DNC was provided directly to representatives of the Trump campaign, or that the Trump campaign participated in or requested that the information be released through WikiLeaks or otherwise, that conduct could give rise to a potential prosecution for conspiracy, aiding and abetting or facilitating an Interstate Transportation of Stolen Property in violation of Section 2314 of Title 18 of the US Code.
Section 2314 makes it a crime to “transmit, or transfer in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.” To bring an action under the statute, however, the prosecution would have to establish that the information (e.g., the information stolen from the DNC’s servers) constituted “goods, wares, or merchandise.”
Defraud Clause
The historic use of the Defraud Clause finds its origins in the 1924 Supreme Court case of Hammerschmidt v. United States, when Chief Justice William Howard Taft wrote that to conspire to defraud the United States means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.
In that opinion, Taft explained that it is not necessary for the government to be subjected to a property or pecuniary loss by the fraud, but “only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.”
Modern-day legal actions brought under the Defraud Clause often involve a conspiracy to impede the functions of the Internal Revenue Service to collect taxes, otherwise known as tax evasion. For example, in United States v. Klein, the defendants were convicted of a conspiracy to defraud the government by engaging in certain acts, including altering and falsifying books and records, making false statements in tax returns, and making other misstatements to the IRS.
The rationale of the Hammerschmidt decision has survived more recent challenges. For example, United States v. Rodman involved impeding the lawful government functions of the Bureau of Alcohol, Tobacco, Firearms, and Explosives by submitting fraudulent forms, and United States v. Ballistrea involved a conspiracy to interfere with or obstruct the FDA’s lawful function of regulating the interstate distribution of medical devices).
Theoretically, if an agreement had been reached at the June 9, 2016, meeting (or at another time) to obtain and use opposition research from a Russian national to influence the presidential election, it is possible that the government could construe the agreement as an effort to defraud the government by impeding the lawful functions of the Federal Elections Commission.
If there were evidence that there was a further agreement to use any information provided (for example, data stolen from the DNC) to impact voter opinion in the months leading up to the election, a broader case potentially could be made involving more individuals.
False statements and obstruction of justice
Many investigations do not result in a finding of a substantive criminal offense. Nevertheless, an individual sometimes can put himself or herself in legal jeopardy if, during the course of an investigation, that person were to lie under oath, otherwise make a false statement to the government, or obstruct an ongoing investigation.
For example, in United States v. Libby, Scooter Libby, a former assistant to President George W. Bush and to Vice President Dick Cheney, was convicted for making false statements to federal investigators, for perjury for lying to a federal grand jury, and for obstruction of justice for impeding a federal grand jury investigation concerned with the leaking of classified information in connection with the disclosure of the identity of a covert CIA agent, Valerie Plame Wilson. (President Bush commuted his sentence; Libby was not accused of disclosing Plame Wilson’s name himself.)
Section 1001 of Title 18 of the US Code makes it a crime to knowingly and intentionally: Falsify, conceal, or cover up by trick, scheme, or device a material fact to the US executive, legislative or judicial branch of government (federal government); or make any materially false, fictitious, or fraudulent statement or representation to the federal government; or make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry to the federal government.
The acts can be oral or written, and they can be acts of commission (giving a false answer to a question asked) or acts of omission (concealment). If this were to occur, the person making the false statement could be charged with a violation of Section 1001 or with aiding and abetting a violation of the statute.
Any knowing and intentional false statement, whether in writing (e.g. on a government form), in the context of providing congressional testimony, in testimony before the grand jury, or in interviews with FBI agents, could be a Section 1001 violation. And, any agreement to coordinate the making of any false statements could violate the conspiracy laws.
Even if it were the case that no agreement was reached on June 9, 2016, and therefore, there was no violation of the conspiracy laws, if a person were to make a knowing and intentional false statement about any material aspect of the meeting to federal investigators, that conduct could constitute a violation of Section 1001.
Similarly, were any witness testifying under oath to lie willfully as to a material matter either before Congress or in the grand jury, perjury charges could be brought under Sections 1621 or 1623 of Title 18 of the US Code. The obstruction of justice laws make it a crime for anyone to corruptly influence/interfere with a congressional or grand jury investigation or other agency proceedings.
For this reason, if anyone associated with the Trump campaign or otherwise connected to the Trump administration were to attempt, directly or indirectly, to obstruct Mueller’s investigation or any congressional investigations, that person potentially could be charged with obstruction of justice. If there was an agreement between two or more persons to obstruct justice, conspiracy charges also could be brought.
Conclusion
Special counsel Mueller was appointed on May 17, 2017. It has been just over two months since he began his investigation. Sorting out all the legal issues included in his mandate is complicated and will likely be nuanced. Only time will tell whether a criminal conspiracy existed between any Russians and any members of the Trump campaign and, if so, who the participants were and what role they played.
At this point, we are only in the top of the second inning.