William Barr
U.S. Attorney General William Barr made a false statement regarding the law governing collusion during his press briefing last week before release of the redacted Mueller Report. That means the Trump Administration was not exonerated on obstruction of justice, and likely remains on the hook for collusion, as well.
During the press conference, Barr addressed the possibility of Trump affiliates conspiring with Russians to publish stolen emails and other documents from the Democratic National Committee and the Hillary Clinton Campaign. Said Barr:
The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet. The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication. Wikileaks then made a series of document dumps. The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts. Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy. Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.
The highlighted section above is critically important because it isn't true. You will notice that Barr makes no citation to law to support his claim. That's because there is no such citation.
An October 2018 publication from the Brookings Institution, titled "Considering Collusion: A Primer on Potential Crimes," spells out the law governing possible collusion, conspiracy, and coordination -- and it's very different from what Barr said in his press briefing. In fact, the differences are so substantial that it raises this question: Given Barr's blatantly false statement on collusion law, can Americans trust anything he says on the Trump-Russia scandal.
From the Brookings report:
The president and his proxies have frequently advanced the claim that such coordination, even if it occurred, would not be unlawful. Their refrain that “collusion is not a crime” is in one sense correct. Collusion is not a single crime. It is instead a rubric that encompasses many possible offenses. We detail some of the principal ones in this report.
All turn on the possibility that Trump or his associates took action in connection with Russia’s attempts to impact the outcome of our country’s presidential election. The criminal nature of the Russian effort is already well-known. The special counsel’s 191 charges brought against 35 individuals and companies spell out some of the crimes allegedly committed in furtherance of the Russian attack on our democracy. Those include indictments of Russian individuals and entities for their participation in conspiracies to hack into the computer and email systems of Trump’s political opponents and release damaging information and to engage in a social media disinformation campaign using fake identities.
Robert Mueller
It logically follows that if the president or his campaign aides worked with the Russians in connection with those efforts, they too may be liable. That is not just common sense—it is also the law. The specific “collusion” crimes that may be implicated by any coordinated efforts between the president or his campaign aides and Russian operatives principally fall under the rubric of conspiracy: an agreement to further illegal action. The core federal conspiracy statute, 18 U.S.C. § 371, would be implicated if there was any agreement between members of the Trump campaign (or Trump himself) and Russian agents to do something that the law prohibits. For example, if, in connection with the infamous June 2016 Trump Tower meeting, the Russians and a Trump representative tacitly or explicitly agreed about the release or use of illegally obtained information, that could credibly support a conspiracy charge. In fact, there is already enough evidence of this potential “collusion” crime to warrant a searching review of those events, including the fact that within hours of the Russian offer of “dirt” regarding Hillary Clinton in June 2016, Mr. Trump announced a major speech promising revelations about his opponent.Notice the last highlighted sentence in the section above. It plainly states that a Trump representative would not need to have been involved in illegally obtaining information to support a conspiracy charge. All that is needed would be evidence of an agreement, tacit or explicit, about the release or use of such information. Other avenues exist for holding Trumpists accountable on the subject of collusion. From Brookings:
Another example of a “collusion” crime is conspiracy to defraud the United States, which the special counsel charged against Russian social media propagandists and hackers in a February 2018 indictment. Their cyber-misconduct—which included buying political advertisements on social media and organizing political rallies without revealing their Russian identities—defrauded the U.S. by interfering with our 2016 federal elections. If Trump campaign operatives played a role in these activities—for example, by strategically advising the social media disinformation efforts carried out by Russian operatives, or planning speeches or other campaign events around that disinformation—then the Trump campaign could also plausibly be a part of Russia’s broader conspiracy to defraud the United States.
These kinds of possible campaign encouragement of, or involvement in, illegal Russian activity do not just implicate conspiracy law. Russians have been indicted for violating the Computer Fraud and Abuse Act, and their conduct could potentially implicate the Wiretap Act as well. And even if the campaign did not encourage or direct the Russian hacking, individuals associated with the campaign could still be subject to prosecution for aiding and abetting—in lay terms, helping—a violation of those statutes. Aiding and abetting liability could become a factor if, for example, campaign operatives took action to encourage the Russians to publish or otherwise use the hacked materials.
Notice the first section highlighted above. It plainly states that Trump representatives would not need to be involved in hacking Democratic Party computers to be charged with collusion. Using the disinformation to plan speeches or campaign events would be enough.
The second section highlighted above also makes it clear that Trump reps would not need to be involved in document theft to be charged criminally with collusion. Taking steps to aid and abet the Russian scheme would do the trick.
We have more coming on this topic, but for now, here are two take-home points:
(1) Bill Barr brazenly lied to the American people about the law governing collusion in the Trump-Russia probe;
(2) If the rule of law still applies in the U.S., Trump and Co. are no more exonerated on collusion than they are on obstruction of justice.
(To be continued)