Memo to Rudy: Collusion Isn't a Crime, But Conspiracy Is

Monday on Fox you claimed, "I've been sitting here looking in the federal code trying to find collusion as a crime. Collusion is not a crime." On Tuesday, your client, Donald Trump tweeted the same claim, "Collusion is not a crime."

As a former prosecutor, you know full well that while the crime of "collusion" is not in the federal code, the crime of " conspiracy" is.

18 U.S. Code Section 371 defines Conspiracy against the United States: "If 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, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

As Rudy knows full well, Paul Manafort's business partner Rick Gates already pled guilty to "Conspiracy Against the United States," it's one of the charges against Manafort himself, and the twelve Russians recently indicted by Robert Mueller in connection with election hacking were also charged with that crime.

Criminal Conspiracy

A criminal conspiracy commences when two or more persons agree to commit an unlawful act, then take at least one overt step in furtherance of the conspiracy. Criminal conspiracy does not require that the ultimate ends of the conspiracy are ever even carried out.

A criminal conspiracy commences when two or more persons agree to commit an unlawful act, then take at least one overt step in furtherance of the conspiracy.

For example, to be guilty of conspiracy to rob a bank, you don't have to actually rob the bank. If two or more people discuss the idea of robbing a bank, meet to case the joint, but never actually carry out the plan, they may still be guilty of conspiracy.

Or to take an example closer to home, if Russian operatives contacted the Trump campaign to say they had access to the DNC's security system and Hillary Clinton's emails, and top Trump campaign officials met with the Russian operatives seeking to obtain this information, they could be guilty of criminal conspiracy, even if no information was actually then turned over by the Russians.

If Donald Trump personally was aware of the meeting in advance, and/or if he acted to cover up the meeting and its purpose as he did with the fake press release he helped author claiming the meeting was about "Russian adoptions," Donald Trump could be a co-conspirator.

Moreover, even though no information was actually turned over at the Trump Tower meeting, since Russian intelligence later arranged for the release the DNC's and Hillary Clinton's emails, those could be criminal acts in furtherance of the same conspiracy, even if the top Trump campaign officials or President Trump himself did not directly participate in the hacking and release of the emails--Another aspect of the crime of Conspiracy is that the co-conspirators don't even have to know each other.

And this may be why Rudy is suddenly changing his defense of Trump from "there was no collusion" to "collusion isn't a crime."

A Bogus Defense

Rudy may have reason to believe the Robert Mueller may be close to charging Donald Trump Jr., Jared Kushner and Paul Manafort-and possibly President Trump himself-with conspiracy against the United States, at least in connection with the Trump Tower meeting.

In any case, when Rudy Guiliani, other Trump defenders, and Trump himself claim "collusion isn't a crime," they're lying. As they know full well, collusion can be a crime, and the legal term for it is "conspiracy."

One explanation for their knowing lies is that, if Mueller charges Trump with conspiracy, the jury will most likely initially not be twelve citizens sitting in a jury box, but Congress. The "Collusion isn't a crime" claim could simply be meant to deceive Trump's supporters, and to give his backers in Congress a bogus defense.