The world of the law is filled with words that begin with the letter “c.” Consent. Capital. Coercion. And of course the granddaddy of them all, the “Constitution.” My favorite is “capricious,” as in arbitrary and capricious,” although you rarely see it used anymore. Today, in Washington and around the country, the “c” word everyone is talking about is “collusion,” but don’t be fooled into thinking the fate of the Trump administration rests on how “collusion” is or will be defined. The real “c” word that matters here is “conspiracy,” and right now the only definition of it that matters is the one percolating in the mind of Robert Mueller, the special counsel investigating the Trump team’s seemingly inexhaustible supply of ties to Russians.
Black’s Law Dictionary defines collusion as “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…” A conspiracy, on the other hand, is defined as “a combination or confederacy between two or more persons formed for the purposes of committing, by their joint efforts, some unlawful or criminal act, or some act which is innocent in itself, but becomes unlawful when done by the concerted action of the conspirators.” Got it? You can have collusion without having a criminal conspiracy but you can’t have a criminal conspiracy without some sort of collusion.
There is no federal crime of collusion. No one is sitting in a dank prison cell whining to his cellmate that he is innocent of collusion. And if you ask 10 lawyers or former government officials, you are likely to get 10 different answers about the accuracy of its role in describing the Trump-Russia scandal. Iconic Watergate figure John Dean, for example, who knows a thing or two about White House conspiracies, says it’s a “perfect word” to cover the crimes that may have been committed here. Others disagree. The usually sage Jonathan Turley worries about the free speech implications of what’s happening. So does Eugene Volokh. Rick Hasen calls this preformed defense hooey. But can’t you just see the Gorsuch-infused Supreme Court creating a new First Amendment exception for international collusion under the guise of political speech?
Let’s agree, for now, that “collusion” is a political word, a media word, a polite word countless hacks have settled on because its use allows everyone to cover this catastrophe without having to actually accuse the president and his tribunes of something that sounds like a crime. “No one here engaged in a conspiracy” sounds an awful lot like: “I swear I never touched her, officer,” while the phrase “There is no collusion here” sounds an awful lot like a phrase from a science book that the Secretary of Education soon will be asking school officials around the country to burn.
“Collusion” is a political word, a media word, a polite word countless hacks have settled on.
Each time a Trump tribune says the word “collusion” is one less time that mouthpiece has to use the word “conspiracy.’ And each time the word “conspiracy” is not uttered, it helps frame the fight the way the White House wants it framed. To their credit, the president’s enablers and defenders have brilliantly employed the word “collusion” to emphasize, from their point of view, the political (even partisan) nature of the investigation. But it’s clearly getting harder.