A “straw man” is an intentionally misrepresented proposition that is set up because it is easier to defeat than an opponent’s real argument. It is a form of lying. In the Trump administration, it’s been elevated to an art form.
The most recent, and perhaps most transparently egregious straw man cooked up by Donald Trump and Rudy Giuliani is the “collusion is not a crime” defense. Since nobody is arguing that Trump should be criminally charged with “collusion,” the “collusion is not a crime” defense intentionally misses the point. It is true in the narrowest sense, but adds nothing to the debate over whether Trump has broken laws or committed high crimes and misdemeanors.
It’s just a public relations gimmick.
The real issue is whether colluding with Russia’s theft and weaponization of stolen emails is evidence of a crime, whether that crime is called “collusion,” “conspiracy,” or something else.
“Collusion” is a word that can encompass a wide range of conduct, some criminal and some not, depending on who is doing the colluding, and to what end. Since we’re in legal land, let’s use the Black’s Law Dictionary definition of 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.”
Stripped of legal jargon, collusion happens when two or more people get together to plan something deceitful. Since “deceitful” doesn’t always mean “criminal,” it would certainly be accurate to say that collusion is not necessarily a crime.
Collusion is a key element of countless crimes, from election fraud to treason
But dropping “necessarily” from that statement, and simply declaring that collusion is not a crime, is at best an overstatement. At worst, it is a lie.
The Rudy Giuliani version is much closer to a lie than an overstatement. Giuliani’s smirking proclamation that he can’t find a single statute that says that collusion is a crime is wholly devoid of meaning, a nothing burger masquerading as prime beef.
Just as there isn’t any statute that says that collusion is a crime, there isn’t a statute that says that shooting a gun is a crime. Hell, it’s even protected by the Second Amendment (at least according to the current Supreme Court). You can show up at any gun club in the country and fire your weapon to your heart’s content.
But if you shoot that gun at kids in a schoolyard, or even just brandish it while robbing a bank or taking a hostage, and if you get caught, you’re going to jail, and you may even get the needle. I assure you that it will be of no help if you pay Rudy Giuliani to say that he has searched through the entire criminal code and hasn’t found a single crime called “shooting a gun.”
And there is no statute that makes it a crime to drive a truck. But if you rent a U-Haul and use it as a weapon to mow down as many people as you can on a pedestrian mall, Rudy won’t be a bit of help to you if insists that there is no crime called “driving a truck,” or that you can’t possibly be charged with a crime because your driver’s license was duly issued and unexpired.
So it is with collusion. One can easily come up with scenarios where collusion, by itself, doesn’t rise to the level of a crime. Given the definition of collusion as a “deceitful” agreement, it is hard to come up with examples of collusion that are entirely innocent or admirable, but let’s accept the proposition that collusion is not necessarily a crime.
That said, collusion is necessarily a key element of countless other crimes, most notably including unlawful conspiracy. Under federal law, it is a crime to conspire to commit any other federal crime. For instance, it is a crime to conspire to commit everything from a violation of election laws to treason. And the successful completion of the underlying crime, be it election fraud or treason, is not a required element of the crime. Entering into the conspiracy, usually paired with at least one overt act in furtherance of it, is itself a crime.
Similarly, fencing stolen property is a crime in every state, as well as a federal crime if the property crossed state lines. Fencing is nothing more than the knowing receipt of stolen property. The emails hacked by Russia were stolen property. Even if Trump had nothing to do with the hacking itself, if the Trump campaign knowingly received stolen emails from Russia, or even if it only conspired to do so and took some overt act in furtherance thereof (for instance, setting up and attending a meeting for the specific purpose of obtaining the stolen information), under those circumstances collusion would be very much a key element of a crime.
Anybody claiming that there is “no evidence” of collusion is either too uninformed or too partisan to be taken seriously.
So where does that leave us?
Forgive me, but unless your name is Robert Mueller, your opinion (or mine) on whether Trump is guilty of a crime involving collusion isn’t worth the paper it isn’t written on. It may say a lot about you and me, but it says little about Trump’s criminal exposure.
All we can say right now is that there is a lot of publicly available evidence pointing strongly toward a collusion-based crime. Trump’s invitation to the Russians to find (hack) Hillary Clinton’s emails; Trump Jr’s gleefully positive response to an offer to receive dirt on Clinton from the Russian government; Trump’s promise to give a major speech exposing Clinton immediately following the Russian offer; the Trump Tower meeting; Trump Jr’s post-meeting calls to a blocked number; and Trump’s backing off on the Clinton speech after the meeting proved to be unfruitful weave a powerful, but not ultimately conclusive narrative of criminal conspiracy.
Given these known facts, anybody claiming that there is “no evidence” of collusion is either too uninformed, or too partisan, to be taken seriously.
At the same time, however, we should not take too seriously anybody who is ready to throw Trump in jail based on publicly available information. There are too many unanswered questions. We don’t know, for instance, exactly what Trump knew about the Russian hacking, or when he knew it. Nor do we know for certain what he knew about the Trump Tower meeting, what really took place at that meeting, or whether Don Jr. or others knew that what they were being offered was hacked (stolen) information. We also don’t know many other things, such as what, if anything, Trump told Michael Flynn or others to offer the Russians in exchange for their assistance in tilting the election in his favor. We may think the answers to those questions should be obvious, but we don’t know.
Most likely, though, Robert Mueller does.
Sooner or later we’ll find out.
In the meantime, let’s not take Rudy’s clown act seriously.