A new right-wing media talking point has taken shape in recent days as special counsel Robert Mueller investigates Russia’s interference in the 2016 election and whether President Donald Trump’s campaign had anything to do with it: that even if anyone on the campaign did collude with Moscow, it would not technically be illegal.
The liberal watchdog group Media Matters for America has been documenting the evolution of this argument since Fox’s Geraldo Rivera first brought it up in mid-May.
“What is the crime?” Rivera said May 10 during an appearance on Sean Hannity’s show.
“If the Russian KGB chief is talking to Paul Manafort and the chief says, ‘You know, I’ve got this dirt here that says Hillary Clinton was this or that,’ and Paul Manafort says, ‘Next Wednesday, why don’t you release that, that’d be great for us.’ That’s not — I don’t know that that’s a crime at all. What’s the crime?”
Right-wing columnist Ronald Kessler went further on May 21.
“There’s no violation of law if, in fact, the campaign colluded with Russia, whatever that means,” he told CNN’s Fareed Zakaria.
Fox News’ Gregg Jarrett seemed to agree.
“Collusion is not a crime,” he told Fox News’ Happening Now on May 30, echoing an op-ed he wrote in which he argued that “colluding with Russia is not, under America’s criminal codes, a crime.”
“ Only in antitrust law,” Jarrett said. “You can collude all you want with a foreign government in an election. There’s no such statute.”
“Collusion is not breaking the law,” conservative writer Michael Reagan, the son of former President Ronald Reagan, told CNN’s Don Lemon on May 31.
“You mean if the Trump folks colluded with the Russians, that’s not breaking the law to influence the election?” Lemon asked.
“What law?” Reagan replied.
Hannity was next.
“What was the collusion?” he asked on his show last Friday. “That maybe somebody in the Trump campaign talked to somebody in Russia because Russia supposedly had the information that Hillary Clinton had destroyed on her server when she committed a felony and tried to cover up her crimes?
“Is that a crime, to say, ‘Release it?’ To show the truth? To show damaging information?”
Two days later, Fox’s Brit Hume said on “Fox News Sunday” that “collusion, while it obviously would be alarming and highly inappropriate for the Trump campaign to — of which there’s no evidence, by the way, of colluding with the Russians — it’s not a crime.”
Just one of the aforementioned hosts and commentators returned requests for additional comment about how they would respond to criticism for taking this position.
“He didn’t fu—– collude,” Reagan said. “Get over it.”
‘These violations are criminally enforceable’
Former White House counsel Robert Bauer, now a partner at the law firm of Perkins Coie, said the view that collusion would not be a crime is “flawed.”
“It fails to consider the potential campaign finance violations, as suggested by the facts so far known, under existing law,” Bauer wrote on Just Security earlier this month. “These violations are criminally enforceable.”
Bauer pointed to a campaign finance law that prohibits foreign nationals from providing “anything of value … in connection with” an election.
“The hacking of the Podesta emails, which were then transmitted to Wikileaks for posting, clearly had value,” Bauer noted, pointing to Trump’s frequent praise of the organization. “And its connection to the election is not disputed.”
Josh Douglas, an election and constitutional law expert who teaches at the University of Kentucky Law School, also cited campaign finance laws — specifically, the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold act — when asked whether collusion with a foreign power to win an election was illegal.
Like Bauer, he said the question would be whether any of the Russian activity “would fall under that law as an expenditure,” and whether the Americans involved — in this case, the Trump campaign — had a “specific intent to engage in that prohibited act.”
To Bauer, the intent seems clear:
“The President and others associated with the campaign made no bones about the value to them of the purloined email communications. … He drew on the emails in the debates with Secretary Clinton. Notably, when he was asked during the debates to acknowledge the Russian program of interference and given the opportunity to openly oppose the actions, he wouldn’t do so. He also mentioned Wikileaks 124 times in the last month of the campaign. The Russians could only have been strengthened in the conviction that their efforts were welcome and had value. That covers the evidence in plain sight.”
James Gardner, an election law expert at SUNY Buffalo Law School, said the answer to whether the Trump campaign colluded with Russia “depends on what specific actions formed the basis of collusion.” Political historian Allan Lichtman agreed, saying indictments and prosecutions would depend upon the particular circumstances of a case and interpretations of the law that are not always clear.
Both Lichtman and Gardner said the federal statute criminalizing treason could apply. But putting aside treason, “there are numerous laws” that could be implicated by collusion with any foreign government, Lichtman said.
Those include the Logan Act, which forbids dealings by private individuals with foreign governments involved in disputes with the US; the Stored Communications Act, which creates Fourth Amendment-like privacy protections for email and other digital communications; and the Espionage Act.
John Coates, an election law expert at Harvard University Law School, pointed to relevant federal statutes that could apply, including at least two federal statutes governing campaign contributions and donations by foreign nationals and two governing fraud and conspiracy offenses.
‘The death of outrage’
Andy Wright, a professor of constitutional law at Savannah Law School, said that if Americans entered into an agreement to assist illegal Russian influence operations, “it could create a conspiracy which is a federal crime.”
Additionally, Wright said, American citizens colluding with a foreign power to illegally affect an election “could constitute aiding and abetting that foreign power’s criminal campaign finance violation.”
Ultimately, q uestions about whether the Trump campaign’s encouragement of Russia’s cyberattacks constituted a form of collusion revolve around whether Trump and his associates incorporated Moscow’s meddling into their overall campaign strategy, Bauer asserted.
That includes whether “specific plans” were made to build messaging around the hacked emails and Wikileaks, and if the campaign made a conscious decision not to denounce the Russians so that the meddling would continue.
“Was the message intended for Russia discussed during preparations for the presidential debate, which would explain Mr. Trump’s special care in refusing to assign direct blame for the hacking to the government or to reject any assistance from the hackers?” Bauer wrote.
The idea that collusion is inherently legal, moreover, is “absurd,” said Mark Kramer, the program director for the Project on Cold War Studies at Harvard’s Davis Center for Eurasian Affairs. He added the form such collusion would have taken — hacking, a clandestine transfer of funds, conspiracy — would be serious crimes on their own.
More broadly, the notion that it would be above water for an American presidential candidate to leverage a foreign adversary to subvert an election “would really signal the death of outrage,” said Wright. And those repeating the talking point are also ignoring the very real possibility that the candidate who colluded would then be beholden to that foreign government — and irrevocably compromised.
“Our national security clearance system relies on being able to vet foreign sources of leverage,” Wright said. “Of course, the premise of kompromat is shame. Some of the president’s defenders appear to be post-shame.”