THAT THE RUSSIAN CONSPIRACY CHARGE WILL LIKELY NEVER BE TESTED MAY BE PART OF ITS GENIUS*
Untitled, Acrylic on Panel, 26.5" x 35", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
THE SPECIAL COUNSEL USED THE “TO DEFRAUD THE UNITED STATES, OR ANY AGENCY THEREOF” SECTION OF THE CONSPIRACY STATUTE TO EXPOSE THE DETAILS OF RUSSIANS’ INTERFERENCE WITH THE 2016 ELECTION
On February 16, 2018, a grand jury returned an Indictment against 13 Russian nationals and three Russian companies. For reasons widely publicized and analyzed by an array of experts, the legal, political and geopolitical strategy behind this detailed indictment is brilliant. The details in the Indictment leave little doubt about the quality of US intelligence and access to Russian assets. The message the Indictment sends to Russia and other outsiders who attempt to influence American elections and to any Americans who have chosen or may choose to conspire with such outsiders is clear. And those Russian operative defendants must limit their holidays to countries with which the United States has no extradition treaty. That’s a monkey that will stay on their backs indefinitely.
Finally, someone has our backs.
Given the near-zero likelihood that any of those defendants will ever face trial in the United States, use of this part of the conspiracy statute as the mechanism to lay out the method, means and purpose of the conspiracy in excruciating detail is part of its genius. The Russians, who would hire the best white-collar legal minds, would certainly attack this use of the conspiracy statute, challenging whether this conspiracy count in the indictment even states a crime under federal law. The facts, however, are compelling in their detail. In the eyes of the public and much of the world at large, the allegations are as good as convictions.
The Indictment alleges:
“From in or around 2014 to the present, Defendants knowingly and intentionally conspired with each other (and with persons known and unknown to the Grand Jury) to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016. . . . The conspiracy had as its object impairing, obstructing, and defeating the lawful governmental functions of the United States by dishonest means in order to enable the Defendants to interfere with U.S. political and electoral processes, including the 2016 U.S. presidential election.”
United States v. Internet Research Agency, et al., United States District Court for the District of Columbia, Case №1:18-cr-00032-DLF Document 1, Filed 02/16/18, at 2–3, 12.
Conspiracy is a criminal partnership — an agreement of two or more persons to commit at least one crime. The crime of conspiracy is the agreement to do something defined by statute as illegal. For example, conspiracy to rob a bank is a separate crime from robbing the bank. One becomes a member of a conspiracy by knowing of at least one of its objects [e.g., to rob a bank] and intending to help accomplish it [e.g., as the getaway driver]. The crime of conspiracy is complete when one or more of its members performs at least one overt act for the purpose of carrying out the underlying crime [e.g., purchasing a hoodie, mask or handgun to be used in the robbery]. Completion of the crime of conspiracy does not depend on whether the crime agreed upon [e.g., robbing a bank] was committed. A foiled or abandoned conspiracy to rob the bank does not erase the fact that a crime was committed.
The “overt act(s)” for advancing the purpose of the conspiracy is a distinct element of the conspiracy and should not be confused with the conspiracy itself. For example, one can illegally steal a handgun or legally purchase a handgun to carry out a bank robbery as an “overt act” to accomplish the object of the conspiracy. But acquiring the handgun itself is not the object of the conspiracy which is to rob a bank.
The federal conspiracy statute provides:
“If two or more persons conspire either  to commit any offense against the United States, or  to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. § 371.
The meaning of conspiring “ to commit any offense against the United States” is easily understood and applied. “Offenses” are set forth and defined in federal criminal statutes (laws passed by Congress), primarily, but not exclusively, in 18 United States Code. “Common law” or “judge-made” crimes are not allowed under federal law or the Due Process Clause of the Fifth Amendment.
The meaning of “ to defraud the United States, or any agency thereof” is not so easily understood and applied, and some courts have opined that its use and application borders on common law or judge-made crimes, or even crosses that line. Conspiring to do something that is not identified as an “offense” outside the conspiracy statute itself to me is a little curious. It requires the grand jury, prosecution and ultimately the court to decide what constitutes “defrauding” the United States or one of its agencies. This language, which the Special Counsel uses in the Russia Indictment to allege a widespread conspiracy “to defraud” the United States, has been the subject of considerable analysis by federal trial and appellate courts, legal scholars and commentators.
The United States Supreme Court has yet to take it up, although in a related case the Supreme Court heard argument in December 2017 on whether a crime is committed under the second part of the conspiracy statute if the defendant, in a tax case, was unaware that a criminal investigation was under way when s/he engaged in alleged “obstructive” conduct.
The criminal section of the United States Attorney’s Manuel addresses, and attempts to put to rest, some of the controversy over this “catch-all” language. It explains:
“The operative language is the so-called ‘defraud clause,’ that prohibits conspiracies to defraud the United States. This clause creates a separate offense from the ‘offense clause’ in Section 371. Both offenses require the traditional elements of Section 371 conspiracy, including an illegal agreement, criminal intent, and proof of an overt act. . . .”
“The intent required for a conspiracy to defraud the government is that the defendant possessed the intent (a) to defraud, (b) to make false statements or representations to the government or its agencies in order to obtain property of the government, or that the defendant performed acts or made statements that he/she knew to be false, fraudulent or deceitful to a government agency, which disrupted the functions of the agency or of the government. . . .”
“In summary, those activities which courts have held defraud the United States under 18 U.S.C. § 371 affect the government in at least one of three ways:
- They cheat the government out of money or property;
- They interfere or obstruct legitimate Government activity; or
- They make wrongful use of a governmental instrumentality.”
Unlike other § 371 conspiracies there is no underlying criminal “offense” the violation of which serves as the purpose or object of the conspiracy. If there were such an underlying criminal offense, it would fall under the first section of the conspiracy statute. In the criminal tax context this is known as a Kleinconspiracy. United States v. Klein, 247 F.2d 908 (2d Cir. 1957), cert. denied, 355 US 924 (1958). Commentators have characterized the Russian conspiracy charge in the nature of a Klein conspiracy. The analysis may well overlap with the Special Counsel’s application of the conspiracy statute.
Following is a typical Klein conspiracy charge under § 371:
“The defendant did knowingly and willfully combine, conspire, confederate and agree to defraud the Internal Revenue Service by impeding, impairing, obstructing, and defeating the lawful government functions of the Internal Revenue Service in the ascertainment, computation, assessment, and collection of revenue, that is, federal income taxes.”
Notice the similarity between the language of the Klein conspiracy charge immediately above and the Russian conspiracy charge “to defraud the United States by impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit.” These last four words could be what save the viability of the conspiracy count in the Russian Indictment if any of the Russian alleged conspirators are rounded up and tried.
Not too long ago, the United States Court of Appeals for the Second Circuit, which had authored the original Klein decision, issued an opinion in United States v. Coplan, 703 F. 3d 46 (2nd Cir. 2012), which squarely confronted the question whether the time has come to pare down the judicially-created Klein conspiracy. As the court stated, appellants in Coplan “argue vigorously on appeal that the Klein conspiracy theory is textually unfounded.” Coplan, 703 F. 3d at 61. Addressing the government’s position, the Court said:
“There is nothing in the Government’s brief recognizable as statutory interpretation — no discussion of plain meaning, legislative history, or interpretive canons. Indeed, in all 325 pages of its brief, the Government does not even quote the text of § 371. The Government thus appears implicitly to concede that the Klein conspiracy is a common law crime, created by the courts rather than by Congress. That fact alone warrants considerable judicial skepticism. See United States v. Lanier, 520 U.S. 259, 267 n.6 (1997) (‘Federal crimes are defined by Congress, not the courts’); see also Rogers v. Tennessee, 532 U.S. 451, 476 (2001) (Scalia, J., dissenting) (‘[T]he notion of a common-law crime is utterly anathema today’).” Coplan, 703 F.3d at 61.
In Coplan, the defendant-appellants argued that Skilling v. United States, 130 S. Ct. 2896, 2928 (2010), allows an appellate court to “‘pare’ the body of § 371 precedent ‘down to its core. . . .’” The Coplan court declined to do so, however, stating “such arguments are properly directed to a higher authority [United States Supreme Court]. “As an intermediate appellate court, we are bound to follow the dictates of Supreme Court precedents, no matter how persuasive we find the arguments for breaking loose from the moorings of established judicial norms by ‘paring’ a statute.” Nonetheless, the Second Circuit Court reviewed the expansion and contraction of judicial interpretation of § 371, acknowledging “infirmities in the history and deployment of the statute.”
One commentator said: “Notwithstanding its controversial nature, the Klein conspiracy doctrine has never directly been tested in the Supreme Court, and recent decisions of the Second Circuit, most notably United States v. Coplan, have cast serious doubt on the continuing viability of the doctrine.” Robert J. Anello & Miriam L. Glaser, White Collar Crime, 85 Fordham L. Rev. 39, 57 (2016) (emphasis added).
Likewise, the Ninth Circuit generated a stinging analysis of Klein in United States v. Caldwell, 989 F.2d 1056 (9th Cir. 1993) (implicitly overruled on instructing jury on “deceitful or dishonest means” in United States v. Conti, 804 F.3d 977 (9th Cir. 2015) (not Klein conspiracy but rather conspiracy to commit wire fraud and submit false claims)), in which the court explained the substantial risks to citizens.
Commentator Jeremy H. Temkin (one of the attorneys on the Caldwell case) discussed the Klein conspiracy doctrine in the wake of Caldwell: “Though the court did not address the foundations of the Klein doctrine, it did express concern about the doctrine’s reach and sought to confirm a limiting principle — that the underlying conduct be illegal, or at the very least, dishonest and deceitful.” Time to Revisit the “Klein” Conspiracy Doctrine, New York Law Journal Vol 249 №17 (2013) (emphasis added). Tempkin concluded by stating:
“Together with the Ninth Circuit’s decision in Caldwell, the Second Circuit’s decision in Coplan puts in doubt a long-accepted and widely used theory of criminal liability. Given the extensive Supreme Court precedent girding the government’s interpretation of the conspiracy statute, the Second Circuit concluded that only the Supreme Court can redefine the scope of the prohibition on conspiracies to ‘defraud’ the government.”
“Though reversing decades of law might appear daunting, Skilling demonstrates the Supreme Court’s willingness to critically examine the foundations of criminal liability. The Second and Ninth Circuits’ thoughtful and well-reasoned critiques of the Klein conspiracy theory should lead other courts to reconsider the doctrine, and defense counsel can be hopeful that the Supreme Court will accept the Second Circuit’s invitation to resolve the issue.”
Unfortunately, the Supreme Court did not. Yet.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed nearly 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers.