Collusion Isn’t a Crime, But Aiding and Abetting Is

[Elderberry]

Bloomberg 7/30/2018 by Noah Feldman

Trump’s 2016 call for the Russians to hack Clinton’s email should worry his lawyer more.

Rudy Giuliani can’t seem to get the law right. The president’s lawyer suggested Monday on CNN and Fox News that Donald Trump didn’t commit a crime even if he colluded with Russians during the 2016 campaign by encouraging them to hack Hillary Clinton’s email server. “I don't even know if that’s a crime, colluding about Russians,” Giuliani put it. “You start analyzing the crime – the hacking is the crime. The president didn't hack. He didn’t pay them for hacking.”

That’s just wrong. Although there is no formal charge known as “collusion,” federal criminal law covers anyone who “aids, abets, counsels, commands, induces or procures” a felony. The elements of the crime need to be broken down to see how they might potentially apply to Trump’s actions during the campaign. And to be sure, not all the facts that would bring Trump under the federal statute have been proved.

But the law definitely doesn’t require Trump to have hacked himself or to have paid the Russians to do the hacking, as Giuliani argued. And the First Amendment wouldn’t protect Trump if the facts showed that he counseled the Russians to commit a federal hacking crime.

In the U.S. Supreme Court’s formulation, to be found guilty of aiding and abetting, “it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, [and] that he seek by his action to make it succeed.”

The Justice Department usefully summarizes what must be proved at trial to get a conviction:

        That the accused had specific intent to facilitate the commission of a crime by another;
        That the accused had the requisite intent of the underlying substantive offense;
        That the accused assisted or participated in the commission of the underlying substantive offense; and
        That someone committed the underlying offense.

More: https://www.bloomberg.com/view/articles/2018-07-30/rudy-giuliani-is-wrong-about-collusion-hacking-and-trump-s-woes