Collusion Isn’t a Crime, But Aiding and Abetting Is

(Bloomberg Opinion) -- Rudy Giuliani can’t seem to get the law right. The president’s lawyer suggested Monday on CNN and Fox News that Donald Trump didn’t commit a crime even if he colluded with Russians during the 2016 campaign by encouraging them to hack Hillary Clinton’s email server. “I don't even know if that’s a crime, colluding about Russians,” Giuliani put it. “You start analyzing the crime – the hacking is the crime. The president didn't hack. He didn’t pay them for hacking.”

That’s just wrong. Although there is no formal charge known as “collusion,” federal criminal law covers anyone who “aids, abets, counsels, commands, induces or procures” a felony. The elements of the crime need to be broken down to see how they might potentially apply to Trump’s actions during the campaign. And to be sure, not all the facts that would bring Trump under the federal statute have been proved.

But the law definitely doesn’t require Trump to have hacked himself or to have paid the Russians to do the hacking, as Giuliani argued. And the First Amendment wouldn’t protect Trump if the facts showed that he counseled the Russians to commit a federal hacking crime.

In the U.S. Supreme Court’s formulation, to be found guilty of aiding and abetting, “it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, [and] that he seek by his action to make it succeed.”

The Justice Department usefully summarizes what must be proved at trial to get a conviction:

  1. That the accused had specific intent to facilitate the commission of a crime by another;
  2. That the accused had the requisite intent of the underlying substantive offense;
  3. That the accused assisted or participated in the commission of the underlying substantive offense; and
  4. That someone committed the underlying offense.

Special counsel Robert Mueller’s team would first have to prove that Trump intended for the Russians to hack into Clinton’s campaign when he said on July 27, 2016: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”

Trump could defend himself by saying that he was joking. But that interpretation is arguably belied by the fact that he also told the Russians, “I think you will probably be rewarded mightily by our press” – which sounds like a rational argument, not a joke.

Second, Mueller would have to prove that Trump intended for the hacking to be done knowingly by the Russians. This would be easy, because there’s no way to hack Clinton’s emails by accident.

Third, and hardest, Mueller would have to show that Trump in some way “assisted or participated” in the offense. The proof would presumably have to show that Trump was both assisting and participating by telling the Russians what they should hack next.

The Russians made their first attempt to hack into the servers in Clinton’s personal office on the same day that Trump made his statement. This was alleged by Mueller in his most recent indictment of Russian intelligence officers on hacking charges.

To extend the charge to Trump, Mueller would have to show that the fact that the Russians were possibly taking guidance from Trump tends to prove that he was intending to assist them by providing direction.

The final element, that the attempted hacking of Clinton’s campaign actually took place, is also easy to prove. Ironically, this is the element that was unclear when Trump initially made his statement – but which is now demonstrable through the evidence that Mueller is relying on his indictment of the Russians.

If Trump tries to claim that his statement was just an exercise of his free political speech, he shouldn’t be able to prevail – at least not if prosecutors could prove beyond a reasonable doubt that he was assisting or participating in the crime.

Lots of crimes are committed by words. Aiding and abetting is a prime example of a crime that can be committed just by talking. But free-speech law doesn’t extend to the speech used to commit such crimes.

If Trump was really just joking when he suggested that the Russians look for Clinton’s emails, then his speech would be protected by the First Amendment. Given that he was running for president, it would be appropriate for a court to bend over backward to make sure he wasn’t being convicted for making a joke.

But “I was joking” would be a defense against the crime of aiding and abetting. It wouldn’t be a separate free-speech defense. That is, if Trump really wasn’t joking, he could be criminally convicted.

Of course, Mueller isn’t going to issue an indictment of Trump while he’s in office. At most he will make a recommendation to Congress that would be relevant to impeachment.

Scholars disagree about whether the “high crimes and misdemeanors” required for impeachment under the Constitution must be actual statutory crimes – I tend to think not.

But everyone agrees that genuinely criminal conduct may count as a high crime when it is related to the office of the presidency – which this conduct certainly would be.

The bottom line is that Giuliani is either intentionally or unintentionally misstating the criminal law. That’s pretty bad for a former federal prosecutor. Aiding and abetting isn’t some obscure corner of criminal law. It’s the second section of the U.S. criminal code.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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