Collusion versus Conspiracy.

This is a short post on two terms that I'm sure you're hearing a lot right now: collusion and conspiracy.  They look and sound similar, and it's easy to both confuse one with the other and be unsure of the meaning and legal significance of each.  And the news media, most often not trained in the law and forced into sound-bite length segments (there are exceptions on both counts) don't make it any clearer.  (I'm not trying to trash the media here, but there is only so much anyone in their circumstances can do).  So here goes.

(Some of what follows comes from the "Law and Order" column of Politico which can be found here.  Well worth the read).

Collusion, as bad as it sounds and as bad as it can be, is not by itself a crime.  The only place collusion is a federal crime is in antitrust law (e.g., price fixing).  Now the act of colluding--a secret agreement between two or more parties to facilitate their ends--can clearly lead to a crime/criminal activity.  From the article: "For example, if Donald Trump Jr. sought “dirt” on Hillary Clinton from the Russians, he might be charged with conspiring to violate the election laws of the United States, which prohibit foreign nationals from contributing any “thing of value” to an electoral campaign. The opposition dirt is at least plausibly a thing of value. And to the extent that the Trump campaign aided, abetted or advised the Russians (or any other hackers) about what would be most useful to steal from the Democrats or how best to enhance the impact of their release, they may well have violated the Computer Fraud and Abuse Act."

But notice: the crimes (in this case) would be election tampering and computer fraud, not collusion.  Collusion can lead to crime; it isn't a crime itself.  I have to say sloppy reporting has lead to the notion that collusion=criminality.  It doesn't. 

Conspiracy is a crime.  Conspiracy has been defined in the United States as an agreement of two or more people to commit a crime or to accomplish a legal end through illegal actions.  A conspiracy does not need to have been planned in secret to meet the definition of the crime.  Under most U.S. laws (federal and most states), for a person to be convicted of conspiracy, not only must he or she agree to commit a crime, but at least one of the conspirators must commit an overt act in furtherance of the crime.  See more about conspiracy here.  And you can try your hand at reading a federal statute here (18 U.S.C. Chapter 19--Conspiracy (§§ 371-373)(defining conspiracy as a federal crime (§371), conspiracy to impede or injure an officer (§372), and solicitation to commit a crime of violence.(§373)).

So just remember: Collusion can lead to crime; conspiracy is a crime.  Collusion is nowhere in the federal criminal statutes (it's only in antitrust, where it is a crime, but only there); conspiracy is right there at 18 U.S.C.§371.

Clearly there is a great deal more to these issues, but the basic terminology is always a good place to start.


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