Regain Your Sense: This “Collusion” Thing is Not a Crime

Cue Scary Music….

In the not so distant past, the immediate relative of a United States president, believing that the leader of the other party was dastardly and crooked, sent a message to a Russian operative, telling them that if Russia would intervene in the American campaign for president, this rich fellow from the Northeast would help Russia look better in American media, and also use their words to make his own political side look like better negotiators and allow his party to win in the upcoming presidential election.

There was a bargain to be made. One thing that was clearly on the bargaining table was air-time and media inroads for the Russian government officials, who would do their best to make this fake news seem like genuine journalism. As our current President says, “I’m great for ratings. Just great.”

There was an outreach made to the Russian leader, a former KGB director, because this deal would also work to Russia’s benefit. There was a confrontational tinge between the current US party in power and Russia, and it had been bad for relations. “Sad. Terrible. An Absolute Disgrace,” as our current President says.

But it wasn’t only that, it was also because this man had political ambitions of his own. He had already given a rousing speech at his party’s national convention, and a future presidential run for himself was clearly a possibility. It would be nice, it would be nice, to have Moscow on his side.

About That Collusion Thing….

Every single fact in that previous section is true, (except for one detail). It has been reported widely. But the only thing is, this is not a story about Donald Trump Jr. and a Russian lawyer. I admit that I added some out of context quotes to mislead you. It is a story about Senator Ted Kennedy in 1983. You can read that story here in Forbes Magazine. It was published in 2009. The small detail that is not true is that I should say “Soviets” instead of “Russians.”

Or maybe I could have written about how Mitt Romney made direct outreaches to a foreign power to help him get a particular voting block back home. Or maybe I could have written about how the Obama campaign both indirectly with money and campaign-connected organizations, and directly with former campaign staff, worked to un-elect a foreign leader in a foreign country. Or maybe I could have written about how the Hillary Clinton campaign in 2016 directly worked with a foreign government to help her candidacy over Donald Trump, including using payments totaling more than $400,000, over Donald Trump, even going so far as to use state-backed investigation of a Trump campaign aide to feed the “corrupt” stereotype, only to back away from that investigation after the election.

I mean it doesn’t really matter which story I use. All of them prove the same point: Popular media culture has gotten WAAAAAAAAAAAAY too crazy with our media’s wildly growing and almost unbounded idea of what “collusion” is. A million un-important bits of information are grouped together, and if you point at any one and say it is unimportant, you are pointed to the other 999,999 and told that the group “paints a picture” or “tells us something, right?”

No. It doesn’t. Random facts don’t tell stories. People tell stories that make sense. So tell me a story that makes sense.  

Let’s pretend some ostensibly serious person in journalism asked, “Did Trump Have an Undisclosed Meeting With Russian?” The first thing we should ask is “Well, why did you leave off the article modifier?” Was it a Russian? Was it some special Russian? Was it a Russian that nobody ever meets with unless they do terrible-bad things? Was it a Russian who is Vladmir Putin’s personal financier, or his hit-job clean-up man? Is it just some guy from Russia? Some Russian national? Was it Yakov Smirnoff? Isn’t it important to know if Trump met with an agent of the Russian government? Wouldn’t it also be important if Trump knew this person was an agent of the Russian government? Wouldn’t it be important if this agent of the Russian government was on a particular mission at the time or the meeting? Wouldn’t it be important if Trump knew the agent of the Russian government was on a mission at the time? Specificity matters. Specificity is what makes stories make sense.

The way people write about this whole “Russia” thing, it doesn’t seem like those details do matter.

And if you think I used some made-up example, you’re wrong. Here is a headline asking, “Did Trump, Kushner, Sessions Have an Undisclosed Meeting With Russian?” Which Russian is it? The Russian Ambassador, Sergey Kislyak. Was the alleged meeting at some unsavory place where espionage or “collusion” would obviously be happening? Or was it at some place where ambassadors routinely meet American political officials? Well, in the text of the article, we can see where it was held. The sponsor of the event (at which this supposed meeting happened) released a statement saying that they invited Sergey Kislyak as one of “four foreign ambassadors” who attended this gathering whose subject was “foreign policy.”

Okay. So what does that mean? Why is it being reported?

I can understand why that’s a fact that should be noted if you are writing a story. I can’t understand why this fact is THE story. “No! It’s not just that these people met! It’s that they LIED about the fact that they met when they earlier said they didn’t meet! That must mean SOMETHING!”

…Okay. People: Think about an event that you attended 11 months ago with about 1,000 people in attendance (I’ve been to the venue where this happened. It actually seats more, and has several spaces for overflow and CC viewing). Would you be able to remember whether or not you spoke to a particular person with whom you are vaguely familiar? If you are not, is that a lie? Why are people writing stories like this? These stories are EVERYWHERE. And they’re junk.

We have gotten WAAAAAY too crazy with this whole collusion thing.

The Current Hullabaloo

Currently, there is a GIANT yuuuuuge ShOcKiNg and GROUNDBREAKING revelation that Donald Trump Jr. admitted he “met with a Russian lawyer with ties to the Kremlinand was EVEN TOLD that Russia wanted to help his father’s campaign! (First off, what ties in particular? Isn’t the nature of those ties important? Doesn’t it possibly damage credibility if a headline pretends that the “tie” is actually less of a connection than implied? Would we make a lawyer’s “ties” to their clients part of their reliability if their clients were, for example, violent murderers and rapists? Then why– oh, nevermind. Back to the story.)

This is the “smoking gun” for collusion.  …..or……. attempted collusion. or…..whatever this is.

So…. what is this? Why aren’t the feds busting down the gold-plated doors of a 5th Avenue Apartment right now due to this gumshoe reporting? Isn’t collusion a crime?

What Collusion Actually Means

Merriam Webster defines collusion as a “secret agreement or cooperation especially for an illegal or deceitful purpose.” Even though it may not be technically necessary to have both, it is fair to say that the question “Was there collusion?” is a two part question. First, “Was there a secret agreement or cooperation?” Second, “Was it illegal?” The first question is one that can be answered with factual investigation. The second can be answered by looking at the law.

Now, that paragraph about collusion is all true. But let’s be honest: these days, “collusion” is not so much a word that communicates a clearly-accepted definition of something bad. Rather, it’s a word that is supposed to make whatever it is attached to sound bad.

In other words…. We have gotten WAAAAAY too crazy with this whole collusion thing

The original story about collusion came after we learned that Russia hacked into the DNC servers back in 2015, and around March of 2016. But that story did not exactly start spreading. For example, take a look at this Google Trends report for searches of the word “Collusion” over the past 5 years.

There is a large and brief jump in searches for “collusion” in April of 2016  when state attorneys general and environmental activists were accused of doing so in an Exxon criminal probe about global warming. There is also a small blip in “collusion” searches at the time when Wikileaks released the DNC emails and a story seriously being reported was that “Trump Urges Russia to Hack Clinton’s Email” by getting on live television at a campaign event and telling Russia to find Hillary’s deleted emails from her mixed government/personal account that she stored in a private server in a loft apartment in Denver. (Strangely, there was comparatively little reporting that this action was Trump seeking media attention by saying something provocative which also connected to an issue — Hillary’s misuse of government email — that his base found important.)

After that, there is a fairly significant growth in “collusion” searches in the uptick to Election Day, after which there is a fairly large plunge. But then the numbers go crazy around February and March of 2017.

But right now, we are in peak “collusion” territory, and it isn’t getting any better.

What Conspiracy Is and Why “Collusion” Isn’t That

Now, I’m just a regular lawyer, and not an election-law specialist or anything. So don’t take this as legal advice, and all specific inquiries about cooperating with foreign governments in federal elections should be blah blah blah……  …but this general info isn’t exactly hard. Everybody gets this in law school.

Originally, “collusion” seemed to be used in the news as a synonym for “conspiracy.” And this isn’t all that hard to remember. At first, the general inquiry was whether or not there was collusion between the Trump campaign and the Russian government on a specific illegal event: the hacking of the DNC and the spread of that stolen, private, and damaging information to the public. No matter what you think about the veracity of some sort of quid-pro-quo or coordination between Trump and the Russian government, at least the idea makes sense. That “collusion” was “a conspiracy to commit a felonious act: the hacking of the DNC.”

Collusion = Conspiracy

And yes, conspiracy is a crime. It is part of a group of “incohate crimes.” These crimes, solicitation, conspiracy, and attempt, can make someone guilty of a crime even if they invited someone to do a crime (solicitation) that did not happen, or if they tried and failed to do a crime (attempt), or if they made an agreement to do a crime that either did or did not happen (conspiracy). Since society must guard against groups of people who come together for a crime more than it must guard against individual actors, with conspiracy, you can be charged both with the crime itself (for example: cyber-hacking) and the making of an agreement to accomplish the crime (conspiracy), but you can’t be charged with attempted cyber hacking and cyber hacking from the same transaction (the two crimes “merge”). What about an attempted conspiracy? That’s a solicitation. And such is the criminal law circle of life complete.

Now, however, the question is whether or not there was collusion between the Trump campaign and “Russians” on a common goal: defeating Hillary Clinton in the 2016 election. Now, that might be some sort of agreement, and people might not even like it. That’s fair.

But it is NOT a conspiracy. It is not a felonious act to defeat Hillary Clinton in an election. We need better reporting, or at least a somewhat cohesive overarching narrative, to say that “collusion” is a crime. We have to keep our terms and ideas straight.

The Current Legal “Collusion” Theory Is…..

Right now, as excellently explained by Eugene Volokh (and not so excellently explained by Vox) is that, the “collusion” was an agreement (conspiracy) or at least an attempt (solicitation) to violate 52 U.S.C. 30121, which says:

(a)Prohibition: It shall be unlawful for—

  (1)a foreign national, directly or indirectly, to make—

 (A)

a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B)

a contribution or donation to a committee of a political party; or

(C)

an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.

(b)“Foreign national” defined As used in this section, the term “foreign national” means—

(1)a foreign principal, as such term is defined by section 611(b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States; or
(2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101(a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101(a)(20) of title 8.

The violation is, the theory goes, that by wanting to accept “damaging information” on Hillary Clinton, this was “a thing of value.” The receipt (or attempted receipt) of this information was from a “foreign national.” It was made as a donation or a “contribution” connected to a “Federal election.” BOOM. All the elements of a felony met. DONE.

Agreement to get that damaging information? Well that’s solicitation and/or conspiracy to commit a felonious act. BOOM!

We’ve got COLLUSION. We’ve got CONSPIRACY. Trump is going down!

WE’RE WATCHING THE DOWNFALL OF A PRESIDENCY IN REAL TIME!

Give me an I ! Give me an M ! Give me a P ! Give me an E ! Give me an A, C, H, M, E, N, T!

…Total Bunk. Let’s Try The Theory Again.

But hey, guys, let’s just…… wait a minute.

Try this reasoning again using a different situation. Let’s pretend that it’s not the hot-button issue of Donald Trump campaign, Donald Trump Jr. and a Russian Lawyer. Let’s pretend it’s a British “foreign national” — like this guy, Christopher Steele, who compiled the Russian “Trump Dossier” and distributed it during the campaign as opposition research for money. He’s a a foreign national. Check. He’s got “damaging information,” which is a thing of value. Check. He sent this thing of value to someone seeking opposition research, a connection to a Federal Election. Check.

So….    ….is that a crime? We knew about this months and months ago. Why didn’t anybody freak out then?

Hint: it relates to getting WAAAAAY too crazy with this whole “collusion” thing.

It also has something to do with the First Amendment, which extends to more than just American citizens. People have the right to transact in information. And it doesn’t matter if that information was stolen by the Russians, illegally leaked by a Pentagon staffer, hacked online, or stolen from a secured government NSA facility. Americans — all Americans, including Donald Trump Jr. — have a Constitutional right to receive things of information in the form of speech and ideas. It doesn’t mean you can take the information from its source (that might be theft or espionage), but you can look at information after it is spread to the public by ANYONE. Period.

–including directly from a hostile foreign government like Iran or Russia.

That’s because this statute was never meant to be applied like this. “Contributions” are meant to be gifts of money and “donations” are the same, but for tax purposes are slightly different because they can go to a 501(c)4, which is not a campaign organization and is tax deductible, but is still connected to federal and state elections.

And of course it’s not ONLY money that is banned from being exchanged by this law. If the King of Saudi Arabia was giving free rides in his plane to Hillary Clinton and her campaign staff from New York to California, then of course that would be a “donation” or “contribution.” But as soon as the contributed “thing of value” becomes protected by the First Amendment, the law simply does not apply.

For a funny example, let’s pretend you get a knock on your door.

[KNOCK KNOCK]
“Yes?”
“Heyl-low.”
“Um…. hi.”
“My nyame is Boris. This is Natalia. We are Russian dreamers. We dream of Mother Russia. But here in America this Autumn, we are… um…. [the two look at each other]…styudents.”
“Okay?”
“We are just hiere as vyolinteers with the Dyonald Trump campaign to teyl you to vote for Miyster Trump on Tuesday. And say Nyet to crooked Hyllary.”

Is that a crime? A direct appeal from a foreign national to Americans through a gift of volunteered hours to influence the vote in an American election?

Answer: No. It definitely is not a crime.

Or if it is, then Hillary Clinton has a very big problem, since she explicitly and openly violated the same criminal statute that Donald Trump Jr. is accused of violating in exactly the same way as the funny example. When she did it, it was reported with celebration and cheer by the New York Times, The LA Times, NPR, NBC, MSNBC and others.

She recruited “Dreamers,” who are (ahem) “foreign nationals” who are “not a citizen of the United States or a national of the United States” and “who [are] not lawfully admitted for permanent residence.”

Check.

They gave their time, energy, effort, and services for the Hillary Clinton campiagn – a thing of value.

Check.

And that donation or contribution was definitely connected to a federal election.

Check.

Congratulations. Your ever-broadening definition of collusion to nab Donald Trump Jr. has given the Trump Administration a legal basis to deport all of these individuals who campaigned for Hillary because they are now FELONS who violated U.S. election law. And the Hillary campaign explicitly conspired with them to do this. “Lock her up!”

Oops.

What We Should Learn From This

These days, the media is seeking clicks and attention. Unfortunately, many stories are dumb inquiries of vague questions like whether Donald Trump “met with Russia” or had a “meeting with Russians” or “undisclosed meeting with Russian.”

They circle around the same meaningless and directionless inquiries, and when a difference of recollection between two people is uncovered, it is called an “inconsistency” rather than a “disagreement between two people about a particular fact.” When someone tied to Trump claims he “did not meet with Russians” but later remembers that he “did meet with a Russian,” then this is a “lie” and not a “lapse of memory.” If two people connected with Trump met with a Russian and disclosed it because they were required to disclose it, but a third person connected with Trump did not disclose it because he is not required to disclose it, then this is salaciously called a “previously unreported meeting” instead of what it is: a big nothing-burger.

This isn’t all smoke and no fire. It’s a case of really really really really REALLY wanting something to be there, and bending all information to that end. Most of the stuff I’m reading on the subject is…. (dare I say it?) ….fake news.

So to combat this, keep your head on your shoulders. Think about the big picture. And by all means, calm down. When you read the news about Trump, ask yourself:

Collusion. Okay. Colluding to do what? Is that thing illegal? Is that thing unethical? Is that thing out of the norm of politics? If an equivalent thing were done by my side of the political divide, would I care? If it has happened before and I didn’t care, should that fact change how I respond right now even though I truly believe this is not a healthy direction for our country to go?

What was the evidence for this collusion? Is this something that normally happens in politics or Washington, DC? What can we reasonably say was going through person A’s head. What can we say was going through person B’s head. He said X. Did he mean X? Is stupidity a better explanation of this past phenomena I’m observing than a secret plot with a foreign power to install a reality TV show real-estate billionaire as President of the United States? Are there other factors at play here?

These are the questions you can ask yourself, a media consumer, to protect against damage to your credibility when your over-reaction is exposed to others (but forgotten by you).

Don’t be the lawyer in your mind, pushing a client’s side when you read the news about Trump. Rather, be the judge who says, “Should I even let this piece of evidence into my mind?”

Conclusion

Believe it or not when I say this, but no, Trump is still not a great guy. Not much has changed there. Sure we who didn’t want him as president can learn from his election, but correcting our views doesn’t erase all past judgements.

Yes, there are still ways that Trump can do bad things. Yes, Trump could have problems with the Emoluments Clause, both Foreign and Domestic. Yes, Trump can ruin norms that actually work for the good of the country. Yes, Trump’s crazy conspiracy theories and encouragement of crowds as they cheer “lock her up” could have problems when the person leading these cheers is given the highest power in the United States. These are all things that we need to guard against.

But don’t guard against it by being a bad guy yourself or celebrating these bad people when they act. Don’t accuse people of doing things that they simply have not done. Don’t create new problems by expanding doctrines like impeachment to their breaking point. Don’t meet Trump’s race to ruin Presidential norms with his tweets by promulgating every single tweet he ever tweets as breaking news every, single, time it, happens, or pretend that fairly innocuous tweets that communicate a non-politically correct idea are dehumanizing and rooted in antisemitism. Don’t beat Trump in a contest to be bombastic. Don’t beat him in a contest of dividing America into “terrible, sad!” people and “great, just great” people.

Just take a deep breath. Go read a book, preferably one at least 50 years old. And then after a week or so, watch a movie.

I think we’ll all feel a little bit better after that.

 

***A previous version of this story’s opening called Senator Ted Kennedy the “son of a United States President.” It has now been changed to immediate relative. This mistake was due to the author’s youth and disinterest in the politics of the Kennedys, his desire to fashion a parallel anecdote, and because it was late when he was writing and he is way too good looking to thoroughly check his facts at that hour.*** 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s