THE NONSENSE SPEWING FROM MR. TRUMP’S DEFENSE TEAM*
Untitled, Watercolor, 8.75" x 10.5", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
- Doing it isn’t a crime.
- Given the opportunity, everyone would do it.
- Mr. Trump didn’t do it.
- If he did it, so what.
- He didn’t even know about it.
- If he knew about it, so what.
Most everyone realizes, or should realize, the nonsense spewing from Mr. Trump’s defense team is meant solely as an attempt to shape public opinion. I’m guessing it’s shaped. Everyone knows Mr. Trump won’t sit for an interview with the Special Prosecutor and why he can’t. Public opinion matters only if Mr. Trump moves against the Special Prosecutor or the Congress moves against Mr. Trump. Mr. Trump’s TV lawyers are attempting to mitigate the political fallout.
Public opinion won’t much matter if a D.C., Virginia, New York or Florida grand jury issues an indictment charging Mr. Trump with crime(s) against the United States or naming him as an unindicted co-conspirator. Only competent legal analysis and decision-making — actual lawyering — and not this clown show will matter.
This post addresses conspiracy law and the type of conspiracy the Special Prosecutor has charged against Russians and is likely to charge against others, including possibly Mr. Trump and many in his entourage, who were involved in the Russian interference and influence of the 2016 U.S. presidential election. This post also identifies a possible legal weakness in the part of the conspiracy statute the Special Prosecutor may be forced to use against Mr. Trump or others involved in his campaign.
THE LAW OF CONSPIRACY
Setting aside the tired drivel about “collusion,” conspiracy is a criminal partnership — an agreement to  commit a crime — as defined by a criminal statute — or  defraud the United States or one of its agencies.
The federal conspiracy statute says:
“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.
 CONSPIRACY TO COMMIT ANY OFFENSE AGAINST THE UNITED STATES
Let’s start with the easy one,  above, conspiracy to commit any offense against the United States. 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 Title 18 of the United States Code. In principle “common law” or “judge-made” crimes are not allowed under federal law or the Due Process Clause of the Fifth Amendment. People are entitled to know or be on notice what conduct is prohibited on pain of criminal charges which can result in loss of property, liberty and even life. Only criminal statutes can satisfy the notice requirements.
As an easy example, robbing a bank is a federal crime under 18 U.S.C. 2113. That statute says, in part:
“Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
“Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny —
“Shall be fined under this title or imprisoned not more than twenty years, or both.”
Conspiracy to rob a bank is a separate crime from robbing the bank under 18 U.S.C. 371.
One becomes a member of a conspiracy by agreeing to participate, knowing of at least one of its objects [e.g., to rob a bank] and intending to help accomplish it [e.g., as the lookout]. 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; casing the bank].
Completion of the crime of conspiracy does not depend on whether the crime agreed upon [e.g., robbing a bank] was accomplished. A foiled or abandoned effort to rob the bank does not erase the fact that a criminal conspiracy was committed. If the co-conspirators succeed in robbing the bank, they are guilty of two separate crimes so long as the government proves each element of each crime: bank robbery and conspiracy to commit bank robbery.
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. Robbing a bank is the object of the conspiracy. (There could, however, be a separate criminal conspiracy to steal a handgun and the crime of stealing a handgun.)
 TO DEFRAUD THE UNITED STATES OR ANY AGENCY THEREOF
The object of the second kind of conspiracy, “ to defraud the United States, or any agency thereof,” is found within the conspiracy statute itself rather than in a separate criminal statute. One can argue it is somewhat vague. Mr. Trump’s lawyers appear to be focused on  because they have seen it in the Special Prosecutor’s expanding work product.
On February 16, 2018, a grand jury returned an Indictment against 13 Russian nationals and three Russian companies. 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 No:18-cr-00032-DLF Document 1, Filed 02/16/18, at 2–3, 12.
This conspiracy charge does not rely on a separate criminal statute as the object of the conspiracy but instead on the “to defraud the United States” portion of the conspiracy statute itself.
By comparison, more recently, on July 13, 2018, a grand jury returned an indictment against 12 Russian nationals in the United States District Court for the District of Columbia. That indictment alleges a conspiracy to violate a number of specific criminal statutes, separate offenses, including Fraud and Related Activity in Connection with Computers, 18 U.S.C. 1030, Aggravated Identity Theft, 18 U.S.C. 1028A, and Conspiracy to Launder Money, 18 U.S.C. 1956. The first couple of pages of the indictment lay out the theory and those separate crimes:
“In or around 2016, the Russian Federation (“Russia”) operated a military intelligence agency called the Main Intelligence Directorate of the General Staff (“GRU”). The GRU had multiple units . . . engaged in cyber operations that involved staged releases of documents stolen through computer intrusions. These units conducted large-scale cyber operations to interfere with the 2016 U.S. presidential election.
“Defendants . . . were GRU officers who knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the ‘Conspirators’), to gain unauthorized access (to ‘hack’) into the computers of U.S. persons and entities involved in the 2016 U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 U.S. presidential elections. . . .
“Beginning in or around June 2016, the Conspirators staged and released tens of thousands of stolen emails and documents. They did so using fictitious online personals including ‘DCLeaks’ and ‘Guccifer 2.0.’
“The Conspirators also used the Gucifer 2.0 persona to release additional stolen documents through a website maintained by an organization (‘Organization1’), that had previously posted documents stolen from U.S. persons, entities, and the U.S. government. The Conspirators continued their U.S. election-interference operations through in or around November 2016.
“To hide their connections to Russia and the Russian government, the Conspirators used false identities and made false statements about their identities. To further avoid detection, they Conspirators used a network of computers located across the world, including in the United States, and paid for this infrastructure using cryptocurrency.”
United States v. Netyksho, et al
Some courts have opined that the use and application of section 371, the “to defraud the United States or any agency thereof,” borders on common law or judge-made crimes, or even crosses that line, and is therefore subject to challenge as a valid, enforceable criminal statute. Moreover, one can conceive of a challenge to the statute based on “vagueness,” that is, the language is not sufficiently specific to place people on fair notice of specific conduct that violates the law. Conspiring to do something that is not identified as an “offense” outside the conspiracy statute itself is a little curious and problematic, at least to me, because arguably, at least in this instance it could allow or even require the grand jury, prosecution and ultimately the judge and jury to decide what legally constitutes “defrauding” the United States or one of its agencies. This language has been the subject of considerable analysis by federal trial and appellate courts, legal scholars and commentators.
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,” arguably vague 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 [rather than the Congress] 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.”
So without considering separate possible criminal statutes (hacking, stealing documents, aggravated identity theft, money laundering, campaign finance violations), does interference with the US presidential election fit within the definitions of what courts consider as conduct “to defraud the United States or any agency thereof”?
Did the defendant possess 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 . . . perform acts or ma[k]e 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 . . .”?
Did interference with the U.S. election
“cheat the government out of money or property”? Doubtful.
“interfere or obstruct legitimate Government activity” Yes.
“make wrongful use of a governmental instrumentality”? Possibly.
Again, “common-law” or “judge-made” crimes are not permitted under the United States Constitution.
As noted, 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 Klein conspiracy. United States v. Klein, 247 F.2d 908 (2d Cir. 1957), cert. denied, 355 US 924 (1958). Klein conspiracies have been the subject of considerable analysis and challenge.
I wrote about a Klein conspiracy and its potential weaknesses in a prior post relating to the February 16, 2018 indictment against 13 Russian nationals and three Russian companies. I believe that same analysis and those potential weaknesses apply here.
Commentators have characterized the Russian conspiracy charge in the first indictment 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.
An indictment charging Mr. Trump and/or others in his campaign with a conspiracy to defraud the United States under  will, in my view, be much more likely to survive challenge if it also includes charges of conspiracy to violate separate crimes such as computer hacking, theft of documents, aggravated identity theft, money laundering and/or campaign finance laws. We don’t know where the evidence will lead, but is it possible Mr. Trump conspired with others including Russians to violate separate offenses against the United States and not just to interfere with its lawful operation? Of course.
And this has nothing to do with the broad array of potential crimes, unrelated to Russian collusion, staring Mr. Trump in the face, both before and after he took the oath of office. The list is potentially very long: Obstruction of Justice, Fraud (mail, wire, securities, bank, tax), Tax Evasion, Failure to Report Foreign Accounts, False Statements, Foreign Corrupt Practice Act, Travel Act, Money Laundering, RICO. I have written about some of them in prior posts.
Obstruction of justice
Foreign Corrupt Practices Act
Travel Act, Money Laundering, Foreign Corrupt Practices Act, Obstruction of Justice
*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.