Is Collusion a Crime?

You and some close family friends got together one evening to plan a surprise party for your spouse's 40th birthday. You claimed you were seeing a movie instead, thereby deceiving your spouse. What's more, everyone who helped you plan the big event was sworn to secrecy, prompting a flurry of little white lies leading up to the party. All was revealed when you brought your spouse home after an early dinner and his closest friends jumped out of the shadows and yelled "Surprise!"

This is a rather benign example of collusion which, based on its Latin roots, literally means "playing together." But the term collusion means different things in different contexts, often referring to illegal or at least unethical acts committed by two or more individuals. The term typically is used to describe certain illegal acts, but is collusion itself a crime?

Planning a surprise birthday party under the cloak of secrecy is of course not illegal, but other acts of collusion could constitute crimes. The following is a discussion of collusion within the context of criminal law, including an explanation of specific criminal charges related to acts that might be characterized as collusive in nature.

Collusion: Definitions and Meanings

Merriam-Webster's Dictionary defines collusion as "secret cooperation for an illegal or dishonest purpose," but Webster's New World College Dictionary calls it "a secret agreement for fraudulent or illegal purpose; conspiracy." According to Black's Law Dictionary, collusion is "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 of his right."

Definitions offered by the latter two sources suggest illegal acts, but Merriam-Webster's definition is vaguer (i.e. simply being dishonest is not necessarily a crime). However, despite its "legalistic" tone, the term collusion has no specific legal meaning in criminal law; there's no such criminal charge called "collusion," nor does the term necessarily signal a criminal offense.

When is Collusion a Crime?

We know that collusion has a few different definitions and that "collusion" is not an actual criminal charge, but when are acts that can be characterized as collusion considered crimes? Even though collusion is not a legal term of art, quite a few offenses are characterized by collusive acts and may require special counsel. Similarly, the simple act of lying is not itself a crime, but it becomes a crime in specific situations, like when lies are told under oath (perjury) or to gain something of value (fraud).

The following are examples of situations where acts of collusion amount to crimes:

Conspiracy

The legal definition of conspiracy, which is a criminal charge, perhaps most closely mirrors the various definitions of collusion. The term is defined as "an agreement between two or more people to commit an act prohibited by law or to commit a lawful act by means prohibited by law." Common crimes can include obstruction of justice, election interference, criminal conspiracy, and other synonymous terms.

The underlying crime is not as important as the intent to commit a crime and acts taken to plan for the crime. For instance, you and your co-conspirators can be charged with conspiracy to rob a bank even if the robbery is never actually attempted, which can result in a federal crime. Conspiracy theories are when people believe in actions or theories that may or may not be true.

Treason

To commit treason is to "levy war against" the United States, "adhere to its enemies," or give its enemies "aid and comfort." This doesn't necessarily require an act of collusion, since an individual may choose to commit treason on their own, but traitors often work directly (or "collude") with the enemy. 

For example, U.S. citizen Mildred Gillars (aka "Axis Sally") colluded with the Third Reich by broadcasting Nazi propaganda during World War II. She was convicted of treason and served a prison sentence. A recent example of this is the Mueller Report and claims of treason regarding special counsel Robert Mueller of the FBI. The report brings allegations against the Trump campaign and involves the Russian government.

Racketeering

Racketeering activity is broadly defined under federal law, including such crimes as murder, kidnapping, gambling, robbery, bribery, and extortion. The "racket," therefore, is much larger than any one of the specific crimes or operations it may encompass.

Rackets, or criminal organizations, often utilize legitimate businesses to launder (or hide the source of) money received from illegal operations. Since rackets typically require the coordination of multiple players (often including corrupt insiders), they almost invariably involve collusion. These crimes are prosecuted at the federal level under the Racketeer Influenced and Corrupt Organizations (or "RICO") Act, which enables prosecutors to more easily connect the dots of such rackets.

Price-Fixing and Market Manipulation

Federal and state governments have antitrust laws in place to thwart actions that would restrain trade or create an unfair advantage in the marketplace. Antitrust laws often are invoked when large companies merge and squeeze out other, smaller competitors. But since competition generally results in lower prices and thus benefits consumers, large companies may be tempted to collude together instead by agreeing not to go below a certain price point. This illegal activity is called "price-fixing."

Fabricating Grounds for Divorce

All states now offer some form of no-fault divorce, whether it's "irreconcilable differences" or an "irretrievable breakdown of the marriage." Therefore, couples no longer have much incentive to fabricate grounds for divorce. Still, there's plenty of caselaw regarding couples who colluded in order to falsify grounds for divorce in states that once didn't offer the option of no-fault divorce.

Is Your Collusion a Crime? A Criminal Defense Attorney Can Help

Even if your spouse gives you the silent treatment for throwing a surprise birthday party they didn't want, you didn't commit a crime by colluding with your mutual friends. But if you're the target of an investigation from the justice department or facing charges for other nefarious acts, colluding with others in the commission of those acts may be criminal and you'll need legal help for exoneration. Get started with your defense today by contacting an experienced criminal defense attorney near you.