Forget Collusion. Conspiracy’s the Watchword in Mueller’s Filings

(Bloomberg) -- For a look at how Special Counsel Robert Mueller could tie Russian election interference to American citizens, watch the C-word.

Not coordination or collusion, but conspiracy.

One charge in particular -- conspiracy to defraud the U.S. -- has cropped up in several of the Mueller team's major cases. The allegation shows up in filings against former Trump campaign chairman Paul Manafort, as well as in indictments of Russian nationals accused earlier this month of hacking into Democratic Party organizations and election infrastructure. Conspiracy charges are significant because they're building blocks: Once prosecutors allege a conspiracy, they can add more individuals later.

Donald Trump and his circle have long focused on a different buzzword, saying that there was no collusion with Russians, and subsequently that if there was collusion, Trump wasn't aware of it. Now comes Trump attorney-cum-spokesman Rudy Giuliani. ”I don't even know if that's a crime, colluding about Russians,” Giuliani told CNN this week. Trump echoed that in a tweet: “Collusion is not a crime.”

That is at once technically correct and, according to former federal prosecutor Mimi Rocah, beside the point.

“To say there's no crime of collusion means nothing,” said Rocah. “That label isn't in the criminal statutes. But that doesn't matter because the conduct that underlies collusion can be, under certain circumstances, conspiracy to defraud the U.S.”

The statute -- Title 18 U.S. Code 371 -- makes it a crime for two or more people to “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." The maximum penalty is five years.

It's among a list of similar charges that Mueller's prosecutors have brought in their investigation, including conspiracy to launder money and conspiracy to obstruct justice, which can lead to longer sentences.

(Mueller's mandate, it's worth noting, doesn't mention either collusion or conspiracy. Deputy U.S. Attorney General empowered him to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and matters arising from that.)

Tool Kit

The statute has been a basic part of prosecutors' tool kits for decades, said Daniel Richman, a former federal prosecutor who now teaches at Columbia Law School. “It captures conspiracies to violate all sorts of federal laws, and allows the government to go after property or information it is entitled to,” he said.

In the original case against Manafort last October, Mueller accused the former campaign chairman and his longtime deputy, Rick Gates, of conspiring to defraud the U.S. by failing to register as agents of a foreign government, which impeded the Justice Department and Treasury Department's ability to oversee the activity of foreign agents. Gates pleaded guilty and is cooperating. Manafort went on trial Tuesday in Virginia on separate bank fraud and tax charges also brought by Mueller.

Mueller used a similar formulation against Russian nationals and companies that he alleged masqueraded as Americans on social media to sow discord among voters. The February charges included conspiracy to "defraud the United States by impairing, obstructing, and defeating the lawful functions of the government.” The Russians interfered with Federal Election Commission, Justice Department and State Department operations, the filing alleged.

Prosecutors in Washington D.C., working with the Justice Department's National Security Division, also used the charge in their case against Mariia Butina, a Russian gun-rights activist who they say established close ties with the National Rifle Association to advance a Kremlin agenda in the U.S. The charge they used: Conspiracy to defraud the U.S. by acting as a foreign agent without registering with the Justice Department.

Add-Ons

With conspiracy allegations now leveled at more than two dozen Russian nationals relating to the 2016 elections, the U.S. could add Americans if there's evidence that they helped or encouraged them, said Rocah.

“If there's any corruption of the electoral system and the way it's supposed to work, that conduct can be put into this conspiracy. Campaign finance violations can be put in this framework, as well as conspiracy to obstruct the function of the Federal Election Commission,” said Rocah. Mueller, she said, has “put a framework down to which you can add other people.”