Mueller's Definition of 'Collusion' Will Be Clear
(Bloomberg View) -- One legal question looms larger than others over special counsel Robert Mueller’s investigation of Donald Trump’s presidential campaign and its possible Russia connections: What laws, exactly, would be violated by collusion if it could be shown?
Remember that the word “collusion” itself has no formal legal status in this investigation. No relevant federal criminal statute that I know of makes “collusion” -- as opposed to conspiracy -- a crime. The letter appointing Mueller directs him to investigate “links and/or coordination” between Russia and the campaign, with no mention of “collusion.”
A potentially applicable criminal law is 52 U.S.C. 30121, which governs campaign contributions by foreign nationals. It makes it a crime for a foreign national to make a “contribution or donation of money or other thing of value” to a campaign -- and a crime for an American to “solicit, accept, or receive” such a contribution.
The revelation that Trump campaign adviser George Papadopoulos was told in April 2016 that Russia had “thousands” of emails related to Hillary Clinton’s campaign has again brought this provision to the fore. It also arose in July, when it came out that Donald Trump Jr. had expressed enthusiasm about possible Russian-provided information on Clinton and attended a meeting with Russians to explore it.
Now, the idea is that if it can be shown the Trump administration willingly received the gift of the hacked Democratic National Committee emails, that could be the basis of a criminal charge for accepting or receiving something of value from Russian nationals.
Does this legal theory hold water? It might.
But before Trump critics get too excited, a crucial caveat: Mueller and his team would be making a serious strategic mistake if they relied on the theory to try to convict the president’s closest aides. When the stakes are this high and the issues are so deeply partisan, it would be unwise to rest high-profile prosecutions on a novel theory of the meaning of a criminal statute, however plausible the interpretation might be.
The crucial element of the law in question is the meaning of the phrase “thing of value.” The statute says explicitly that a campaign can’t take money from a foreign national. Another “thing of value” would include, say, private airplane rides or catered food.
The tricky bit is whether “thing of value” would include the publication of emails hacked from a candidate’s opponent.
On the one hand, opposition research is a saleable commodity. Campaigns pay to produce it, and they sometimes buy it outright. To this extent, the foreign national who provides free opposition research to the campaign might be said to be donating something of value.
Yet although information can be bought or sold, it isn’t exactly the same as an ordinary thing of value. Consider a foreign national who writes a complimentary letter to a U.S. candidate for office. The candidate then shares the text of the letter with the public in a speech. Speech-writing can be bought and sold. But the letter clearly isn’t a donation.
A bit closer to home for Democrats, consider the compilation of the notorious Steele dossier on Trump. Suppose some Russian national freely gave former British intelligence officer Christopher Steele dirt on Trump, knowing that the information would make it to a U.S. candidate like Clinton. Would that information on Trump count as a thing of value such that Clinton’s campaign would be guilty of violating the law by receiving it? The answer is certainly no -- as most Democrats I think would acknowledge.
So if Russians stole or gathered information on Democrats and gave it to Trump, is that really a violation of the prohibition on campaign contributions by foreign nationals? At best it’s a close call.
That’s exactly why the Mueller team can’t really rely on this theory of the meaning of the foreign contribution statute. When it comes to interpreting criminal statutes, judges are guided by what’s called the “rule of lenity,” a particular favorite of the late Justice Antonin Scalia. That means ambiguous criminal statutes are supposed to be interpreted in favor of the defendant, not the government.
Under ordinary circumstances, prosecutors can pursue aggressive theories of the meaning of criminal statutes, and defendants, who are afraid of harsh prison terms, may fold at the threat rather than take a risk by challenging the prosecutors’ interpretation in court.
But in a case as intensely partisan and closely watched as any Trump campaign-related prosecution would be, defendants would be able to expect that courts would bend over backward not to make new law by upholding their convictions.
More important, as Mueller’s team no doubt recognizes, going after the campaign of a sitting president isn’t just an ordinary criminal prosecution. Mere possibility of surviving appeal isn’t good enough.
As Ralph Waldo Emerson told Oliver Wendell Holmes Jr. in a very different context, “When you strike at a king, you must kill him.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
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