(Cross-posted from Esquire)
The world of the law is filled with words that begin with the letter “c.” Consent. Capital. Coercion. And of course the granddaddy of them all, the “Constitution.” My favorite is “capricious,” as in “arbitrary and capricious,” although you rarely see it used anymore. Today, in Washington and around the country, the “c” word everyone is talking about is “collusion,” but don’t be fooled into thinking the fate of the Trump administration rests on how “collusion” is or will be defined. The real “c” word that matters here is “conspiracy,” and right now the only definition of it that matters is the one percolating in the mind of Robert Mueller, the special counsel investigating the Trump team’s seemingly inexhaustible supply of ties to Russians.
Black’s Law Dictionary defines collusion as “a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party…” A conspiracy, on the other hand, is defined as “a combination or confederacy between two or more persons formed for the purposes of committing, by their joint efforts, some unlawful or criminal act, or some act which is innocent in itself, but becomes unlawful when done by the concerted action of the conspirators.” Got it? You can have collusion without having a criminal conspiracy, but you can’t have a criminal conspiracy without some sort of collusion.
There is no federal crime of collusion. No one is sitting in a dank prison cell whining to his cellmate that he is innocent of collusion. And if you ask 10 lawyers or former government officials, you are likely to get 10 different answers about the accuracy of its role in describing the Trump-Russia scandal. Iconic Watergate figure John Dean, for example, who knows a thing or two about White House conspiracies, says it’s a “perfect word” to cover the crimes that may have been committed here. Others disagree. The usually sage Jonathan Turley worries about the free speech implications of what’s happening. So does Eugene Volokh. Rick Hasen calls this preformed defense hooey. But can’t you just see the Gorsuch-infused Supreme Court creating a new First Amendment exception for international collusion under the guise of political speech?
Let’s agree, for now, that “collusion” is a political word, a media word, a polite word countless hacks have settled on because its use allows everyone to cover this catastrophe without having to actually accuse the president and his tribunes of something that sounds like a crime. “No one here engaged in a conspiracy” sounds an awful lot like: “I swear I never touched her, officer,” while the phrase “There is no collusion here” sounds an awful lot like a phrase from a science book that the Secretary of Education soon will be asking school officials around the country to burn.
Each time a Trump tribune says the word “collusion” is one less time that mouthpiece has to use the word “conspiracy.” And each time the word “conspiracy” is not uttered, it helps frame the fight the way the White House wants it framed. To their credit, the president’s enablers and defenders have brilliantly employed the word “collusion” to emphasize, from their point of view, the political (even partisan) nature of the investigation. But it’s clearly getting harder.
First, they said, there was no possible collusion. Next they said there was no clear evidence of collusion. Then they said that whatever collusion may have taken place was either unintentional or unsuccessful. Now, Kellyanne Conway and company are claiming that the only actionable collusion here must be “sustained, systemic, and furtive.” Pretty soon, the company line will be that only a confession under oath of such persistent, pernicious collusion, administered live in the presence of the Pope, will suffice to render unlawful whatever happened between Trump’s team and the Russians.
And then, if the day comes when we do see a conspiracy charge, or even allegations of a conspiracy, the same loud voices that have been denying the existence of collusion will pivot and say: You think collusion is hard to prove beyond a reasonable doubt? Try proving the existence of a criminal conspiracy! There will be no end to the excuses, the deflections, the dodges, not after a trial or a conviction or a sentence if we ever seen one here. There are still Americans who believe that Timothy McVeigh didn’t blow up the Alfred P. Murrah federal building on April 19, 1995. There are people who believe the Sandy Hook elementary school shooting was a hoax. There will always be people who refuse to believe that the president and his men were politically canoodling with the Russians before the election. (No, there is no federal crime of canoodling.)
The good news, for those of us in the rational world or those of us who simply want to understand the scope of what has happened here, is that Mueller and his team know the difference between collusion and conspiracy. If there is evidence a criminal conspiracy took place here, or if there is evidence of obstruction of justice or any other criminal conduct, Mueller will be the one to tell us so. And if there is a criminal case with this scandal at its core, ultimately it will be up to judges and jurors to separate the convenient words with the words that really matter. The deeper we get into the legal component of this story, the more it shifts from cable television to courtrooms, the less the word “collusion” will matter. The letter “c,” you could say, is for context.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.