Yes Collusion!

Many who are pro-impeachment or tend in that direction concede that Mueller’s Volume I supports Trump’s repeated claim  “No Collusion.” Trump and his friendly media go so far as to say that the Trump Campaign was “exonerated” on collusion.

Not so. There is in the Mueller Report itself evidence, summaries of evidence, and conclusions about evidence that strongly support what we would ordinarily call “collusion” between Trump and the Trump campaign on one side and agents or intermediaries of Russia or Wikileaks on the other. In Mueller’s judgment, this evidence is insufficient to support a prosecution under Justice Department guidelines for conspiracy or any other crime in the collusion neighborhood. However, that is far from a conclusion that there was in fact no collusion.

(1)    Mueller may have been wrong in not prosecuting some conspiracy cases.

(2)    Mueller may have been right not to prosecute another, but only because  of the binding, but erroneous, opinions of the Office of Legal Counsel (OLC) that a sitting president is not indictable.

(3)    Some non-criminal acts are collusion.

(4)    The Report gives evidence of such acts.

(5)    Those instances of collusion deserve strong condemnation.

(6)    Had Trump, with knowledge, permitted these acts, that would arguably     be grounds for a collusion-based impeachment, independent of any         cover up charges.

(7)    There is a good probability that there is additional evidence out there,     beyond what is in the Report, of collusion-genus crimes by Trump and     by official or unofficial members of his campaign.

In this post I will discuss some general issue about prosecution standards and collusion. In later posts I plan to expand on some particular instances of collusion as evidenced in the Report. 

The Mueller Report and the “Beyond a Reasonable Doubt” Standard 

The Mueller investigation focused on indictable crimes. With respect to the US persons of Volume I interest, the charges the investigation was considering were chiefly crimes of conspiracy, either pursuant to the general federal conspiracy statutes or one of the conspiracy statutes specific to a particular species of crime. It is wholly consistent with Volume 1 that members of the Trump Campaign conspired with foreign nationals, but that admissible evidence of that conspiracy available to the investigation fell short of proof beyond a reasonable doubt. 

Where a possible impeachment is in the air, the “beyond a reasonable doubt” standard of criminal law may not be applicable. In the Impeachment trial of Judge Harry Claiborne, the Senate rejected his petition that it use the criminal trial standard. Instead the burden of persuasion was left to the individual senator.  Some senators in the past have indeed favored “beyond a reasonable doubt,” but the opposite extreme, the civil burden of “preponderance of the evidence” has had its own supporters. Also proposed have been intermediate standards “clear and convince evidence” and “overwhelming preponderance.” As the Constitution leaves it to the Senate to make its own rules, the Chief Justice, presiding over the next presidential impeachment trial, will not charge the senators to deliberate under the reasonable doubt standard or any other particular formula of the burden of persuasion. 

The last paragraph would have special relevance if there were significant evidence that Donald Trump himself conspired with the Russians, their agents, or WikiLeaks. Other than “consciousness of guilt” evidence, however, of which there is plenty in Volume II, the Investigation turned up no sufficient evidence that Trump himself was part of a conspiracy with those parties. (Would such evidence have surfaced if Donald Jr. were not the president’s son, and if Donald Jr., along with Paul Manafort and Roger Stone, among others, were not confident of pardons if they were caught lying, withholding, or destroying evidence? That would be pure speculation, although, I think, not crazy, wild speculation.)

Still, with respect to potential impeachment charges against Trump for “Russia, if you listening” or for election law violations for paramour payoffs, the fact that the Senate is not bound by the criminal court’s burden of persuasion is potentially important.

Non-Criminal Species of the Genus Collusion

It is also potentially important for impeachment, as well as for the public condemnation of persons not-impeachable, that not all forms of collusion are to be found in the US Criminal Code. In antitrust, where collusion, by name, is a criminal offense, it is sometimes difficult to distinguish between non-criminal “conscious parallelism” and criminal collusion. The paradigm of criminal antitrust collusion is express agreement, for example, to fix prices. Coordinated conduct between competitors not based on agreement is, however, sometimes also criminal collusion if there are “plus factors.” If parties act enough like there were coordinating under an agreement, even where there is none,  they may be chargeable. Where coordinated action is not chargeable, it is still often anti-social and deserving of emphatic public condemnation.

Things were already moving towards “tacit collusion” when the Trump Campaign coordinated their advertising and outreach with the Russian program of election interference. (One does not absolutely have to know the precise identity of another party to collude with them. Sometimes actions speak not only louder than words, but loud enough.) For example, Trump several times lauded WikiLeaks. Could he have thought that would encourage WikiLeaks and whoever was supplying them with stolen emails? He also appears to have advanced knowledge of WikiLeaks releases, but there has not been evidence to clear that up. There is evidence that Trump Jr. tweeted out a Wikileaks link to a stash of emails hacked by the Russians to injure Clinton and help Trump. The weakening of the Ukraine plank in the GOP platform was made by his people, as Trump conceded in an interview with George Stephanopoulos, although claiming to have been personally uninvolved.

There can be no doubt that the Russian agents and WikiLeaks coordinated their actions with events of the electoral competition and with the strategy and tactics of the Trump Campaign.  Manafort had Gates send internal poling data and campaign tactical perspective from time to time to Kilimnik, with expectation it would also get to sanctioned Russian oligarch and Putin ally Deripaska. Apparently no direct evidence has turned up, but it seems not improbable that this Trump Campaign information found its way to those who were orchestrating the Russian election interference, and at least as probable that this was precisely Manafort’s intention. That would amount to collusion if not conspiracy.

Even if there is insufficient evidence to indict Manafort or any other member of the Campaign, given the reasonable doubt standard, there is plenty of reason to condemn the Campaign for taking specific advantage of Russian interference in the election. Alone this would require the “No Collusion” claim to bear a prominent asterisk and footnote: “where ‘collusion’ means a ‘conspiracy chargeable under US law.’”

The Trump Tower meeting, that is the meeting itself, may well have been the product of a conspiracy, with Donald Trump Jr. one of the co-conspirators, to violate the election law. The Report makes it clear that charging this was given some serious consideration. 

This is an instance where the Report’s explanation of why no indictment was sought is less than wholly persuasive. Yes, state of mind is difficult to prove. The particular mental state it would be necessary to prove would be Don Jr.'s knowing that it is unlawful to accept an in-kind contribution of aid (dirt on Clinton)  from a foreign state or foreign person. Is it really possible that someone so much involved with a campaign had heard nothing about foreign contributions being off limits. "Knowing" doesn't require a detailed knowledge of the law. I speculate that if Don Jr. were pressed about all the conversations in which election law came up, there would have been something about this. 

It is Justice Department policy that a "knowing and willful" offense is not to be charged if there is doubt about substantive illegality. The report mentioned an in-kind contribution of information as perhaps being in this category. I think that was overly cautious. "Opposition research" of the sort Don Jr. expected is unquestionably something of value to the campaign. We know that by the amount that campaigns have spent for less significant opposition research.

Yet, even if the Trump Tower meeting did not constitute a conspiracy, it was an initiative by a foreign power to injure one candidate and aid another in a federal election. The members of the Trump Campaign present should have informed the FBI that the Russians had offered illegal election help. It was certainly understood between the two sides present in the Tower that the Campaign would not do so. That was collusion. Mueller may be right that it was not criminal collusion. The agreement to meet may not itself have been a provable conspiracy to violate the election law and failing to report an unlawful offer is not itself a crime. But there was at least here collusion with the Russians that the Campaign participants would refrain from doing what any American citizens should have done. 

Conclusion

The Mueller Report does not exonerate on collusion, it shows that there was collusion. Moreover, the Report is consistent with, and shows some evidence towards, impeachable collusion, and even criminal collusion despite the decision not to indict. 

If you absolutely insist on a very narrow definition of “collusion” that extends no farther than express agreements, then you will want to say that the Investigation concluded that there was insufficient evidence of collusion rising to the beyond a reasonable doubt standard. You would still have to concede, however, that there is evidence, as between the indicted Russians (and their various agents and bosses, including their ultimate boss, Putin), on the one hand, and the Trump Campaign, on the other, of a high level of symbiosis: shared purpose; parallel, interlocking, and bilaterally reinforcing activities; mutual denials and minimizations of those shared purposes and bilaterally reinforcing activities, including the extensive consciousness of guilt coverups of Volume II; abundant contacts through intermediaries; some apparent foreknowledge of each other’s plans; and a shared success. If it is not collusion, it is its all but identical twin. There is solid evidence in the Report of 99 percent of what is bad about collusion.