Is Collusion a Crime?

They are down to one or two cards. You look over at the other player who, like you, has not fared that well. You agree to cooperate in an attempt to foil the player that is close to winning. Whether your strategy works, many outside observers would claim your actions were unfair or akin to cheating.

This is a benign example of colluding with someone. Based on its Latin roots, collusion means "playing together." But the term collusion means different things in different contexts. It often refers to illegal or at least unethical acts committed by two or more individuals. The media may use the term to describe certain illegal acts, but is collusion itself a crime?

Subversive strategies to win a card game may not be illegal. Still, other forms of collusion could show the presence of criminal intent. This article discusses collusion within the context of criminal law. It includes an explanation of specific criminal charges that might be collusive.

Collusion: Definitions and Meanings

Merriam-Webster's Dictionary defines collusion as "secret cooperation for an illegal or dishonest purpose." 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 of the term often suggest illegal acts. Yet, despite its legalistic tone, the word collusion is not a legal term in criminal law. There's no criminal charge called collusion. The term does not necessarily signal a criminal offense.

When Is Collusion a Crime?

We know that collusion has a few different definitions and is not an actual criminal charge. So, when are acts that appear collusive considered crimes? Even though collusion is not a crime itself, there are criminal offenses characterized by collusive acts. For example, the act of lying is not itself a crime. Yet, it may become a crime in specific situations. When someone tells lies under oath, you have the basis for the crime of perjury. Likewise, when someone lies to gain something of value, you may be looking at the crime of fraud.

The following are examples of situations where collusion may amount to crimes.

Conspiracy

The legal definition of conspiracy, a criminal charge, closely mirrors the concept of collusion to a crime. A conspiracy is "an agreement between two or more people to commit an act prohibited by law or a lawful act by means prohibited by law." Conspiracy, like a criminal attempt or solicitation, is a preparatory crime. It is often a preliminary step in committing a target offense.

Common crimes associated with conspiracy include murder, fraud, and drug offenses. Yet, the state can pursue a conspiracy charge almost any time the evidence shows that two or more people agreed to commit a crime. When investigating crimes involving government officials, law enforcement may uncover a conspiracy to obstruct justice. That is, the conspirators may agree to take action to prevent the discovery of their crime.

The success of the underlying crime is less critical than the intent to commit the crime and the acts taken to plan the crime. For instance, you and your co-conspirators can face conspiracy charges to rob a bank even if the robbery never happens. To conspire to rob a bank is a state and federal crime.

To prove the crime of conspiracy, a prosecutor must find evidence that two or more people planned to commit a crime. In most cases, police also present evidence that one or more persons took an overt act to commit the crime. Unlike the conspiracy theories discussed in the media, the crime of conspiracy must be realistic.

Under federal criminal statutes, conspiracy to commit a crime appears in 18 U.S.C. Section 371. The elements of conspiracy provide that two or more people must conspire to commit an "offense against the United States, to defraud the United States, or any agency thereof." One conspirator must do an act to "effect the object of the conspiracy." Upon conviction, an offender can receive up to five years in prison. If the underlying offense of the conspiracy is a misdemeanor, the punishment can align with a misdemeanor sentence.

Aiding and abetting

Often called accomplice liability, a person who aids or abets the commission of a crime may also face charges for the crime carried out by someone else. Under federal law, the accomplice who assists or encourages the crime shares the same criminal responsibility as the principal offender. (See 18 U.S. Code Section 2)

About the type of collusion at issue, the co-conspirator helps plan the target crime. The accomplice, in contrast, may have no role in the planning. They may collude by the actions they take to help commit the crime. For example, if an accomplice works in law enforcement, they may look the other way while the crime happens.

Treason

To commit treason is to "levy war against" the United States, "adhere to its enemies," or give its enemies "aid and comfort." There may not be an act of collusion since an individual may choose to commit treason alone. Yet, traitors often work directly (or collude) with the enemy.

For example, U.S. citizen Mildred Gillars (aka "Axis Sally") colluded with the Third Reich during World War II. She espoused Nazi propaganda on the radio in Europe. Her conduct included overt broadcasts attacking President Franklin Roosevelt and the use of anti-Semitic remarks. The broadcasts aimed to demoralize U.S. service members in Europe during the war. A common theme involved her speculation on the faithfulness of the soldiers' wives and girlfriends in the U.S. Convicted of treason after the war. She served a prison sentence.

Racketeering

Racketeering under federal law includes crimes such as murder, kidnapping, gambling, robbery, bribery, and extortion. The racket is much larger than any specific crimes or operations it may encompass.

Rackets, or criminal organizations, often use legitimate businesses to launder (or hide the source of) illegal proceeds. Rackets invariably involve collusion. By their nature, they involve the coordination of many players. This can include corrupt insiders and government officials. Federal prosecutors may pursue offenders under the Racketeer Influenced and Corrupt Organizations (or "RICO") Act. This law may enable the government to connect the dots of such rackets more easily.

Price-Fixing and Market Manipulation

Federal and state governments have antitrust laws to thwart actions that would restrain trade. Efforts to manipulate the market can create an unfair advantage for one business. Violations of antitrust laws can happen when large companies merge. These actions may squeeze out other, smaller competitors. Competition generally results in lower prices and thus benefits consumers. Large companies may collude by agreeing not to exceed a certain price point. Investigators call such illegal activity "price-fixing."

Marriage Fraud

All states now offer some form of no-fault divorce. This means parties can end their marriage due to "irreconcilable differences" or "incompatibility." In the past, couples had to show fault to get a divorce. So, couples who agreed to divorce might fabricate grounds for divorce. Family court caselaw includes many cases where couples colluded in this manner.

Today, there remains an ongoing problem that involves collusion over getting married. Marriage fraud often involves a foreign national who wants to work or live in the U.S. freely. They may collude with an American citizen to marry to get a Green Card and benefits. The parties have no genuine desire to live together as a married couple. Immigration and Customs Enforcement (ICE) pursue cases each year associated with marriage fraud. They also warn citizens of the dangers of breaking the law.

Sorting Between Collusion and Crime

One case example is interference by Russia in the 2016 presidential election.

The intersection of collusion and crime came into focus during the investigation by federal prosecutor Robert Mueller into possible crimes committed by agents of the Russian government and people associated with the Donald Trump campaign.

The federal election for president in 2016 featured the Republican Party candidate, Trump, and the Democratic Party candidate, Hillary Clinton. During the summer and fall of 2016, the Clinton and Democratic National Committee (DNC) were victims of computer hackers who stole sensitive campaign emails. These documents made their way online and into public view. Wikileaks, a media company formed to disclose the unethical and illegal practices of government entities and private corporations, released many emails.

By the fall of 2016, top Democratic legislators claimed Russia was behind the hacks. By January 2017, the Director of National Intelligence reported that Russian leader Vladimir Putin had ordered an influence campaign to favor Trump and to harm Clinton's chances at winning the presidency. He reported that Russia used its Internet Research Agency to promote divisive posts on social media. It aimed to divide Americans by race and ideology. It also sought to erode American trust in democratic institutions.

President Donald Trump's first Attorney General, Jeff Sessions, recused himself from any role in supervising the investigation into Russian interference in the election. Sessions had served as a policy advisor to the Trump campaign. He had also met with the Russian Ambassador in 2016.

In May 2017, Trump fired FBI Director James Comey. Comey oversaw investigations into the Trump campaign members and any links to Russia and the hackers. After protests from Congress over the firing, Deputy Attorney General Rod Rosenstein appointed Robert Mueller (a former FBI Director) to head the investigation into Russian interference. As a special prosecutor, Mueller had a certain amount of independence. He could subpoena witnesses and convene grand juries. His office oversaw prosecutions that came from the investigation. In 22 months, Mueller brought cases against several defendants.

The disclosure of a meeting between members of the Trump campaign and Russian citizens raised more questions about the claims of collusion between the campaign and Russia. Mueller interviewed witnesses and reviewed evidence related to the June 2016 meeting, which took place at Trump Tower in New York City. The meeting included Trump campaign officials Donald Trump Jr., campaign manager Paul Manafort, and Jared Kushner. A Russian lawyer, a Russian lobbyist, and two others were also present. Trump Jr. initially stated that the meeting related to the adoptions of Russian children. He later said that he did expect to receive damaging information about Clinton from the meeting.

The Mueller investigation led to no charges against Trump. But, several Trump associates and others went to jail. A federal jury convicted Paul Manafort of tax and bank fraud. He later pled guilty to charges of conspiracy to defraud the United States and witness tampering.

In March 2019, Special Counsel Robert Mueller issued his final report to then-Attorney General William Barr. He stated that Russia had interfered in the election in support of Trump. But, he concluded that there was insufficient evidence to show conspiracy or coordination between the Trump campaign and Russia. The report highlighted several instances where Trump's actions raised issues of obstruction of justice. Federal crimes involving obstruction of justice can be found in 18 U.S. Code Section 1505.

Prior Department of Justice guidance says the government should not bring criminal charges against a sitting president. In light of this, Mueller said it would be up to Congress to decide whether there was cause to pursue charges or other sanctions. Many saw this as an allusion to Congress' ability to use the impeachment process.

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

Sometimes, who you associate with can get you into trouble. What can you do if someone accuses you of colluding with someone who may have broken the law? Consider talking with an experienced criminal defense attorney near you. An attorney can help you understand the law better, including whether your conduct could lead to criminal charges. They can also give strategies for defense and help you seek a just outcome to any investigation or criminal case.