# Legal Memorandum: Potential Application of Conspiracy Laws in the Trump-Russia "Collusion" Context ## Introduction This memorandum provides an in-depth analysis of criminal conspiracy laws at both the federal level -- focusing on 18 U.S.C. § 371 -- and relevant state analogues, with particular attention to their potential use in political prosecutions stemming from the Trump-Russia collusion allegations. We examine the legal elements of criminal conspiracy (agreement, overt act, intent, and burden of proof), survey key federal and state case law (especially in politically charged cases), and explore how conspiracy statutes could hypothetically be applied to prosecute individuals who **allegedly conspired to falsely accuse President [[Donald Trump]] of collusion with Russia**. We also identify possible _overt acts_ (such as falsifying evidence, leaking classified information, or misleading the FISA court) that might form the basis of such a prosecution. In addition, we address issues of prosecutorial discretion and political bias, as well as potential defenses grounded in the First and Fourth Amendments. Throughout, we cite relevant Supreme Court and appellate precedent, highlight recent developments in conspiracy law, and apply an originalist, **"America First"** perspective to ensure the analysis aligns with a conservative view of the rule of law. ## Elements of Criminal Conspiracy Law (Federal & State) **Agreement:** At its core, a criminal conspiracy is an _agreement_ between two or more persons to commit an unlawful act (or a lawful act by unlawful means). The existence of a "meeting of the minds" is essential -- mere parallel conduct or similar goals are not enough without proof of an actual agreement. Courts have recognized that such agreements are often proven through circumstantial evidence, given the [secretive nature of conspiracies](https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1006&context=appellatepracticeprocess). In federal practice, at least two genuine participants are required under the traditional **"bilateral"** approach (one cannot conspire with oneself or with an undercover agent who has no criminal intent). Some states, influenced by the Model Penal Code, follow a [**"unilateral"** approach](https://lawshelf.com/coursewarecontentview/conspiracy) allowing conviction if the defendant genuinely agreed, even if the co-conspirator was feigning agreement (e.g. a government informant). Regardless, _shared intent_ is key: all conspirators must **[intend to participate in the agreement and pursue its unlawful objective](https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%206%20Conspiracy%20for%20posting%20final.pdf)**. **Overt Act Requirement:** Many conspiracy statutes -- including the general federal conspiracy law, 18 U.S.C. § 371 -- require that at least one conspirator commit an **overt act** in furtherance of the conspiracy. The overt act demonstrates that the conspiracy moved from mere talk to action. Notably, the overt act need not be illegal in itself; any act, however innocent if viewed in isolation, will satisfy the requirement if it is done to advance the [conspiracy's goals](https://sgp.fas.org/crs/misc/R41223.pdf). For example, something as simple as placing a phone call or scheduling a meeting can qualify as an overt act, so long as it is part of the conspiratorial plan. The U.S. Supreme Court has made clear that this overt act element is statutory rather than constitutional -- Congress can choose to omit it for certain conspiracy offenses. Indeed, many federal statutes define specific conspiracies that _do not_ require an overt act (for instance, conspiracies under federal drug laws and RICO). However, under **18 U.S.C. § 371** (the broad conspiracy statute most relevant here), an [overt act is required for conviction](https://sgp.fas.org/crs/misc/R41223.pdf). Most states likewise impose an overt act requirement for conspiracy (often by statute), though a few jurisdictions still adhere to the old common-law rule that the agreement alone completes the crime for serious offenses. The [Model Penal Code's approach](https://courses.lumenlearning.com/suny-criminallaw/chapter/8-2-conspiracy/), adopted in some states, is to require an overt act for conspiracies _except_ those targeting first- or second-degree felonies. In short, any hypothetical prosecution would need to identify some act by a conspirator -- however small -- that was done to help carry out the scheme. We will later discuss concrete examples of overt acts in the Trump-Russia context (such as the alleged falsification of evidence submitted to a court). **Intent (Mens Rea):** Conspiracy is a **specific intent** crime. This means prosecutors must prove that the defendants not only voluntarily agreed to join the conspiracy but also [intended to achieve the conspiracy's unlawful objectives](https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%206%20Conspiracy%20for%20posting%20final.pdf). There are effectively two mental state requirements: (1) the _intent to agree_ or join the conspiracy, and (2) the _intent to commit the underlying offense_ (or to defraud the United States, as the case may be). Simply knowing about a scheme or being associated with conspirators is not enough -- the defendant must **know the essential nature of the plan and deliberately participate** in it. As one court noted, the elements include a ["unity of purpose" and common intent](https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%206%20Conspiracy%20for%20posting%20final.pdf) among the conspirators. Thus, if individuals were to be prosecuted for a conspiracy to falsely accuse President Trump, it would be crucial to show that they **knew the allegations were false or baseless and nonetheless agreed to promote or use them as part of a shared plan**. Absent proof of that knowing intent to deceive (mens rea), no conspiracy conviction can stand. The burden is on the government to establish intent, but direct evidence (like an admission "we knew it was false") is rare; intent is typically inferred from conduct and surrounding circumstances, such as emails, texts, or meetings indicating a coordinated effort. **Burden of Proof and Evidence:** In a criminal case, the prosecution must prove all elements of conspiracy beyond a reasonable doubt. Conspiracies, however, _by their nature occur in secret_, so courts permit a great deal of **[circumstantial evidence](https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1006&context=appellatepracticeprocess)** to establish both the agreement and the defendant's participation. It is common for prosecutors to rely on inferences drawn from the defendants' coordinated actions, communications among alleged conspirators, money flows, or cover-ups to convince a jury that an agreement existed. Importantly, once a conspiracy is proven, the law holds all members liable for the reasonably foreseeable crimes committed by any member in furtherance of the conspiracy (the **Pinkerton** rule of [co-conspirator liability](https://www.law.cornell.edu/wex/conspiracy)). In practical terms, this means if, for example, two officials conspire to defraud the government and one of them commits an overt act of leaking classified material to further the scheme, _both_ can be held responsible for that leak even if only one physically did it. That doctrine can greatly increase exposure, but it also reinforces the requirement that a defendant _truly be part of the agreement_ -- mere awareness or presence when others act is not enough for guilt. Judges often instruct juries that they must acquit unless they find the defendant **[willfully joined](https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%206%20Conspiracy%20for%20posting%20final.pdf)** the conspiracy with knowledge of its unlawful aims. Stated differently, the law draws a line between, on one hand, **legitimate political cooperation or parallel conduct** and, on the other, a **corrupt agreement** to break the law. Only the latter is punishable as a conspiracy. ## Federal Conspiracy Law -- 18 U.S.C. § 371 **Overview:** The primary federal conspiracy statute, 18 U.S.C. § 371, makes it a crime ["if two or more persons 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_."](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us) In effect, § 371 has two prongs: (1) conspiracies to commit a specific federal offense (e.g. conspiracy to commit perjury, conspiracy to commit election fraud, etc.), and (2) conspiracies "to defraud the United States." Both types require the government to prove the common elements discussed above: an agreement, intent, and an [overt act by one of the conspirators](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us). The statute is punishable by up to five years' imprisonment (and fines), except that if the underlying offense is a misdemeanor, the penalty for conspiracy cannot exceed the misdemeanor penalty. **"Defraud the United States" -- The Klein Conspiracy:** The **defraud clause** of § 371 is especially important in scenarios like the Trump-Russia case because it does not require a violation of a separate criminal law; instead, it targets any conspiracy to cheat or mislead the federal government and thereby [impede its lawful functions](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us). The Supreme Court in _Hammerschmidt v. United States_ (1924) provided the classic definition of a conspiracy to defraud the U.S. Government. As Chief Justice Taft explained, _to ["defraud" the United States is not limited to financial fraud; it "also means to interfere with or obstruct one of [the government's] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us)_ In other words, any concerted scheme **aimed at impairing, obstructing, or defeating a legitimate function of government through dishonest methods** falls within the ambit of § 371. Crucially, the government need not suffer tangible loss -- it is enough that the conspirators sought to **[deprive the United States of its right to have its officials carry out their duties free from fraud and distortion](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us)**. The Supreme Court and lower courts have repeatedly affirmed this broad scope. For example, the statute reaches ["any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government"](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us), encompassing schemes that _trick_ government agencies into acting based on false information. In the landmark case of _Haas v. Henkel_ (1910), the Court upheld use of § 371 to prosecute a conspiracy that obstructed the government's reporting functions, reasoning that any conspiracy **["calculated to obstruct or impair [the government's] efficiency and destroy the value of its operations and reports as fair, impartial and reasonably accurate"](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us)** would be a fraud on the United States. Applied to the Trump-Russia scenario, this "defraud" prong could be the basis of a charge that various actors conspired to _deceive and mislead_ federal authorities (such as the [[FBI]], [[DOJ]], and the FISA court) into investigating false allegations, thereby interfering with those agencies' lawful functions. If, for instance, individuals **knowingly supplied fabricated evidence or false statements** to the [[FBI]] and the FISA court to spur surveillance of Trump campaign associates, prosecutors could allege a conspiracy to defraud the United States by impairing the FISA court's truth-finding function and the [[FBI]]'s counterintelligence operations **[through deceit](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us)**. Notably, Special Counsel [[John Durham]]'s investigation found that [[FBI]] personnel **provided false and misleading information to the FISA court** in the course of obtaining surveillance warrants during "Crossfire Hurricane," the [[FBI]]'s Russia inquiry. That finding -- while not resulting in a broad conspiracy charge -- illustrates the type of **dishonest conduct** that falls squarely within the § 371 defraud clause. Courts often refer to such cases as "Klein conspiracies" (after _United States v. Klein_, a leading case involving tax-related fraud on the government), but the principle is general: a concerted effort to **[frustrate government functions by lying or trickery](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us)** can be prosecuted under § 371. **Conspiracy to Commit an Offense:** The other prong of § 371 covers conspiracies to commit specific federal crimes. In a politically charged context, this might include conspiracies to violate statutes such as: 18 U.S.C. § 1001 (making false statements to federal agents), § 1505 or § 1512 (obstruction of justice or congressional investigations), § 1623 (false declarations to a court), or even § 793 (mishandling classified material) if classified info was leaked. In practice, prosecutors sometimes charge both prongs in an indictment as alternative theories. For example, hypothetically, a grand jury could indict certain persons for **conspiracy to commit offense(s)** (e.g. to knowingly **lie to the [[FBI]] and to the FISA court**) and also **conspiracy to defraud** (for the broader scheme to deceive government agencies and derail the Trump presidency). It bears mention that _each object of a conspiracy_ need not be proven if at least one unlawful objective is proven beyond a reasonable doubt -- but jurors must be unanimous on at least one object. **Requirement of an Overt Act:** As noted, § 371 expressly requires an overt act. The statute of limitations for conspiracy (typically five years) begins to run from the date of the [last overt act in furtherance of the conspiracy](https://sgp.fas.org/crs/misc/R41223.pdf). This is significant for a scenario like Trump-Russia where the events largely occurred in 2016--2017: unless a conspirator committed an overt act within the last five years (for example, a later cover-up act or lying in a subsequent investigation), a federal § 371 prosecution in 2025 might be time-barred. Investigators would therefore look for any _continuing actions_ (such as _continued dissemination of false stories or efforts to obstruct inquiries_ into the origins of the Russia allegations) that occurred within the limitations period, to refresh the timeline. Furthermore, while each conspirator is not required to personally do an overt act, at least one must -- and all members are [legally liable for that act](https://sgp.fas.org/crs/misc/R41223.pdf). This element tends to be easily met in most cases, since virtually any step (an email, a meeting, a document draft, a payment to a source, etc.) can count. **18 U.S.C. § 241 -- Conspiracy Against Rights:** Another federal statute worth noting is **18 U.S.C. § 241**, which makes it a felony for two or more persons to conspire to "injure, oppress, threaten, or intimidate" any person in the free exercise or enjoyment of rights or privileges secured by the Constitution or U.S. law. Section 241, originally enacted to combat KKK conspiracies against civil rights, has been applied to _government officials_ who abuse their power to deprive someone of constitutional rights under color of law. Notably, during the Watergate era, a federal court upheld the conviction of Nixon administration officials ([[Egil Krogh]], [[John Ehrlichman]], and others in the "Plumbers" unit) for [conspiring to violate the **Fourth Amendment rights**](https://law.justia.com/cases/federal/appellate-courts/F2/546/910/204358/) of Dr. [[Lewis Fielding]] ([[Daniel Ellsberg]]'s psychiatrist) by means of a surreptitious break-in. The D.C. Circuit affirmed that **[conspiring to conduct an illegal search](https://law.justia.com/cases/federal/appellate-courts/F2/546/910/204358/)** (absent a warrant or any lawful exemption) plainly fell under § 241's protection of the victim's Fourth Amendment rights. The court rejected [[John Ehrlichman]]'s defenses that he believed the break-in was lawful or authorized for national security reasons, holding that _[specific intent under § 241 "does not require recognition by the defendant of the unlawfulness of his acts, but only an intent to commit acts which in fact deprive a citizen of constitutional rights."](https://law.justia.com/cases/federal/appellate-courts/F2/546/910/204358/)_ In other words, a misguided belief in legality is no excuse if the right at issue was "firmly established." This precedent is highly relevant: if federal agents or officials knowingly **conspired to violate the Fourth Amendment rights** of Trump campaign associates (for instance, by submitting false evidence to the FISA court to obtain a surveillance warrant), they could potentially face charges under § 241 in addition to § 371. In fact, President Trump and his allies have characterized the [[FBI]]'s surveillance of campaign aide [[Carter Page]] (based on the now-discredited Steele dossier) as a violation of the campaign's rights -- essentially "spying" under false pretenses. A § 241 charge would frame that as a conspiracy to deprive [[Carter Page]] (and by extension the campaign) of the right to be free from unreasonable searches and seizures. This is a serious charge (punishable by up to 10 years or more if specific aggravating factors are present) and carries a strong moral weight, since it directly invokes constitutional protections. An _originalist_ might note that the founders explicitly required proof of an **[overt act](https://www.boylejasari.com/is-there-anything-that-can-be-doneto-stop-politically-motivated-prosecutions/)** for the crime of treason (Constitution, Art. III, § 3, cl. 1), reflecting a wariness of politically motivated accusations. By analogy, any prosecution under § 241 or § 371 for politically charged conduct should be grounded in **clear, provable actions** that violated the law or someone's rights -- not mere political differences or speculative harms. **Penalty and Sentencing Considerations:** Under 18 U.S.C. § 371, the general maximum penalty is [five years imprisonment and fines up to $250,000 (for individuals) or $500,000 (for organizations)](https://sgp.fas.org/crs/misc/R41223.pdf). Many conspiracies, however, expose defendants to sentencing enhancements if the object crime or the results were serious. In practice, federal judges consult the Sentencing Guidelines, which often tie the recommended sentence to the offense level of the underlying object offense(s) or the scope of the fraud on the government. For example, a conspiracy to commit multiple felonies could lead to a sentence approaching the sum-total punishment of those felonies if carried out. By contrast, **18 U.S.C. § 241** is classified as a felony that can carry **up to 10 years** if no greater harm occurs, and up to life in prison (or even death) if the conspiracy results in death or kidnapping. It's worth noting that one Watergate conspirator, [[Egil Krogh]], received a [relatively light sentence (several months)](https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=3398&context=hastings_law_journal) for his role in the conspiracy to violate rights, likely due to cooperation and the context. But generally, a conviction in a high-profile, politically charged conspiracy today could yield substantial prison time, both for deterrence and because public trust in government is at stake. ## State Conspiracy Laws and Their Application Every state has its own laws criminalizing conspiracy to commit state offenses, and these laws are broadly similar to the federal scheme but with some variations. **Elements:** In general, a state conspiracy requires an agreement between two or more persons to commit a crime and, in many states, an [overt act by one of them](https://lawshelf.com/coursewarecontentview/conspiracy) in furtherance of that agreement. For example, New York law defines conspiracy in degrees, and requires proof of an overt act for all but the most serious conspiracies. **Model Penal Code Influence:** Many states have adopted language from the [Model Penal Code (MPC) § 5.03](https://courses.lumenlearning.com/suny-criminallaw/chapter/8-2-conspiracy/), which notably _does_ require an overt act for conspiracy **"unless the crime is a first or second degree felony."** Under the MPC approach (and states following it), an agreement to commit extremely serious crimes like murder may be punishable upon the agreement alone, reflecting the gravity of the objective, whereas lesser plans need the added proof of an overt step. By contrast, a few states still follow the old common law rule (no overt act needed for any conspiracy), but those are in the minority. **Unilateral/Bilateral Split:** As noted earlier, some states allow conviction of a defendant who believes they have agreed with another to commit a crime, even if the other person was feigning agreement (unilateral theory). For instance, under _Colorado_ or _Illinois_ law (influenced by MPC), a person can be [guilty even if their co-conspirator was an undercover officer](https://lawshelf.com/coursewarecontentview/conspiracy) who never truly intended to go through with the crime. Other states (and federal law) require at least two actual culpable parties (bilateral theory). This distinction could matter if, say, one of the alleged co-conspirators in the Trump-Russia context was secretly working for law enforcement or turned state's evidence early -- under a bilateral requirement, the conspiracy might fail for lack of two **genuine** plotters. **State vs. Federal Jurisdiction:** A critical point is that _federal conspiracy law would only reach offenses against the United States or its agencies_, whereas state conspiracy laws cover schemes to violate state law. If individuals conspired to, for example, defame someone or interfere with a state election process, state law would be the vehicle (noting that many states have criminal statutes for election fraud, computer crimes, etc.). In the Trump-Russia saga, much of the alleged wrongdoing (if any) involved federal agencies ([[FBI]], [[DOJ]], etc.), so federal law is naturally front and center. However, state prosecutors could theoretically get involved at the margins. For instance, if state laws were broken in the course of the alleged collusion conspiracy -- perhaps state laws against computer trespass (in connection with hacking accusations) or **state perjury statutes** if someone lied under oath in a state proceeding -- a state-level conspiracy charge could be brought. One could imagine, for example, a state like _Georgia or New York_ exploring whether local offenses (such as falsification of business records, computer crimes, or state election law violations) were part of a multi-state conspiracy linked to the Russia-collusion narrative. (Indeed, we have seen Georgia prosecutors use a broad _racketeering conspiracy_ theory in an unrelated context involving the 2020 election.) Generally speaking, **state conspiracy statutes are structured similarly**: they require an agreement and often an overt act, and they penalize the conspiracy either at the same level as the most serious target offense or one degree lower. **Interplay with Federal Law:** It is important to note that the same conduct can violate both federal and state conspiracy laws, giving concurrent jurisdiction (except where double jeopardy or specific statutory bars apply). From an "America First" viewpoint concerned about federal agencies' integrity, one might consider whether state Attorneys General or local prosecutors could pursue charges if federal authorities decline. One obstacle is the doctrine of _federal supremacy_: federal officials acting "under color of federal office" have certain protections from state interference. Congress in the past has provided [removal statutes](https://www.congress.gov/committee-report/118th-congress/house-report/371/1) to ensure federal officers sued or charged in state court can get to a federal forum. In 2023, legislation was even proposed (the ["No More Political Prosecutions Act"](https://www.congress.gov/committee-report/118th-congress/house-report/371/1)) to guarantee that any prosecution of a current or former President or Vice President in state court can be removed to federal court. The rationale is to guard against [local political biases in charging national political figures](https://www.congress.gov/committee-report/118th-congress/house-report/371/1). Practically, if a state prosecutor attempted to charge former [[FBI]] or [[DOJ]] officials with a state conspiracy related to the Russia investigation, those defendants would likely argue they were acting in their federal capacity and seek removal or dismissal on Supremacy Clause grounds. Still, state laws could come into play for private actors (e.g., opposition research operatives, ex-British spy [[Christopher Steele]], etc.) if any part of their conduct violated state criminal statutes. For instance, **state false statement laws** or **election-related offenses** might be implicated if false evidence was submitted to state authorities or state campaigns. However, a comprehensive analysis of state statutes would depend on the specific jurisdiction and facts. In summary, state conspiracy law is an available tool but its use in this context would be novel and potentially fraught with jurisdictional fights. ## Case Law in Politically Charged Conspiracy Prosecutions Historically, conspiracy statutes have been both powerful and controversial when deployed in politically sensitive cases. Because conspiracy law punishes the **agreement and preparatory actions**, it has occasionally been used to prosecute individuals for conduct linked to political expression or dissent -- raising First Amendment concerns -- as well as to hold government officials accountable for abuse of power. Below we discuss several relevant instances: - **Smith Act Conspiracies (Political Speech vs. Illegal Advocacy):** One of the most famous examples of politically charged conspiracy prosecutions were the Smith Act cases in the mid-20th century. The Smith Act outlawed conspiracies to advocate the violent overthrow of the U.S. government. In _Dennis v. United States_ (1951), the Supreme Court [upheld the convictions of Communist Party leaders](https://globalfreedomofexpression.columbia.edu/cases/dennis-v-united-states/) for conspiring to organize and advocate communist doctrine, reasoning that the [gravity of the threatened harm (violent overthrow) justified restricting their speech](https://www.oyez.org/cases/1940-1955/341us494). The Court, applying a sort of clear-and-present-danger test, found that the existence of the conspiracy itself posed a sufficient danger, even if success was unlikely. However, a few years later in _Yates v. United States_ (1957), the Court pulled back, overturning convictions of lower-tier Communist Party members. The _Yates_ Court distinguished between abstract advocacy of ideas (which is protected by the First Amendment) and concrete incitement of unlawful action, holding that **[the defendants' speech was too abstract and remote to be punished as a conspiracy](https://firstamendment.mtsu.edu/article/yates-v-united-states/)**. _Yates_ essentially ended the era of Smith Act prosecutions by requiring the government to prove an intent to cause **imminent lawless action** (an approach later echoed in _Brandenburg v. Ohio_ (1969)). These cases underscore that **when conspiracy charges intersect with political speech, courts demand careful line-drawing** -- a conspiracy charge cannot be a pretext to punish mere unpopular beliefs or rhetoric. The Trump-Russia scenario is distinguishable because the alleged conspiracy would involve concrete **criminal acts (lying to investigators, fabricating evidence)**, not just speech. But this precedent reminds us that any prosecution should focus on those _acts_ and _agreements to act_ -- not on political viewpoints as such. As Justice Holmes warned long ago, we must be vigilant that "conspiracy" charges do not become a tool to suppress dissent absent a clear violation of law. - **Watergate and Related Conspiracies (Abuse of Power):** Conspiracy law famously featured in the Watergate scandal. Besides the well-known charges of burglary and obstruction, prosecutors charged Nixon's aides with conspiracy to obstruct justice and conspiracy to violate civil rights. For example, former Attorney General [[John Mitchell]], White House counsel [[John Dean]], and others were indicted for **conspiring to obstruct the [[FBI]] and [[DOJ]] investigations into Watergate**. Perhaps most pertinent was the case of _United States v. Ehrlichman_, discussed earlier, where senior officials ([[John Ehrlichman]], [[Egil Krogh]], etc.) were convicted of **[conspiracy to violate Dr. Fielding's Fourth Amendment rights](https://law.justia.com/cases/federal/appellate-courts/F2/546/910/204358/)** by burglary (a politically motivated operation against someone viewed as a threat). The D.C. Circuit's decision in _Ehrlichman_ is instructive in politically charged cases: it upheld holding powerful officials to account under general criminal laws even though they claimed to be acting for national security. The court emphasized that [constitutional rights are not suspended for political expediency, and that good faith belief in one's political cause does not immunize criminal conduct](https://law.justia.com/cases/federal/appellate-courts/F2/546/910/204358/). Watergate also saw conspiracy charges against campaign operatives (like [[G. Gordon Liddy]]) and even attempts to use campaign funds to pay conspirators for their silence -- which itself became part of an obstruction conspiracy. The key takeaway is that **the law of conspiracy was essential in unraveling a politically motivated criminal scheme at the highest levels of government**. It provided a means to charge not just individual acts (the break-in, the perjury) but the _entire pattern of collusion and cover-up_. An "America First" legal outlook would likely approve of this precedent: it stands for the principle that _no one, not even high officials, is above the law_ and that **conspiring to misuse government power for political ends is a serious offense**. - **Modern Politically Charged Cases:** In more recent history, conspiracy charges have appeared in cases involving alleged misconduct by government agents or politically motivated lies. For instance, Special Counsel [[Robert Mueller]]'s investigation into Russian election interference led to some indictments under § 371 for conspiracy to defraud the United States. A notable example was the case against Russian entities (like the Internet Research Agency) and individuals for conspiring to meddle in the 2016 election by deceptive social media campaigns; the indictment charged that the defendants [conspired to defraud the U.S. by impairing the lawful functions](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us) of the Federal Election Commission, [[DOJ]], and State Department in ensuring fair elections. This showed the **breadth** of the defraud clause -- it was used to address an **information warfare campaign** as a criminal conspiracy, even though the actions (social media posts using fake personas) were not traditional crimes, because they deceived government agencies about foreign involvement in an election. Another example on domestic soil is the prosecution of political operative _[[Douglas Mackey]]_ (in 2021--2023) for conspiracy to deprive voters' rights (18 U.S.C. § 241) by spreading disinformation about voting methods (text-to-vote memes targeting [[Hillary Clinton]] supporters). [[Douglas Mackey]] was convicted on the theory that he conspired to trick certain voters into not casting real ballots, thus interfering with their rights -- a politically charged, novel application of the law. His defense argued a First Amendment violation, but the prosecution prevailed by characterizing the conduct as a [fraudulent scheme, not protected political speech](https://harvardlawreview.org/print/vol-137/united-states-v-mackey/). These examples underscore that **courts are willing to apply conspiracy statutes in politically sensitive contexts when specific unlawful acts (fraud, deception, rights violations) are present**, but they tread carefully regarding the First Amendment. - **Selective or Politically Motivated Prosecution Claims:** Defendants in politically charged cases often claim the prosecution is selective or in bad faith. Legally, this is a difficult argument to win. The Supreme Court in _United States v. Armstrong_ (1996) held that to obtain even discovery on a selective prosecution claim, a defendant must present clear evidence that the prosecutorial policy had a _discriminatory effect_ and was motivated by a _[discriminatory purpose](https://www.boylejasari.com/is-there-anything-that-can-be-doneto-stop-politically-motivated-prosecutions/)_ (such as race, religion, or another unjustifiable standard). Political affiliation or belief is not a protected class per se, making it hard to argue selective prosecution on that ground unless one can show a pattern (e.g., only Republicans are prosecuted for certain conduct and not Democrats, or vice versa). The courts generally presume that prosecutors have acted lawfully and will not inquire into motives absent strong evidence. Historical cases show that even overt political influence (e.g., President [[Thomas Jefferson]]'s role in the treason prosecution of [[Aaron Burr]] in 1807, widely regarded as political retribution) did not create a legal bar to the prosecution -- [[Aaron Burr]] was acquitted on the facts (lack of two witnesses to the same overt act of treason), not because [the case was politically tainted](https://www.boylejasari.com/is-there-anything-that-can-be-doneto-stop-politically-motivated-prosecutions/). In short, the judiciary's stance is that **the remedy for political prosecutions lies with the political process and the jury's good sense, not typically with dismissal of charges**. This doctrine, while perhaps unsatisfying to those feeling targeted, reinforces that any hypothetical conspiracy prosecution of "Russiagate" plotters would live or die on the _evidence of an actual agreement and illegal acts_, not on debates about the prosecutors' motives. - **[[January 6, 2021]] Capitol Riot and Seditious Conspiracy:** A very recent set of politically charged cases involves the [[January 6, 2021]] Capitol breach. Federal prosecutors charged members of groups like the Oath Keepers and Proud Boys with **seditious conspiracy** (18 U.S.C. § 2384) for allegedly conspiring to use force to oppose the authority of the U.S. government or impede the execution of federal laws (namely, the certification of the Presidential election). In 2022--2023, juries [convicted multiple defendants of seditious conspiracy](https://www.justice.gov/archives/opa/pr/jury-convicts-four-leaders-proud-boys-seditious-conspiracy-related-us-capitol-breach) -- the first such convictions in decades -- underscoring that the Justice Department is willing to use _conspiracy charges carrying a strong political context (essentially, insurrectionist violence)_ when supported by evidence. While seditious conspiracy is a distinct offense from § 371, the principle is parallel: prosecutors framed the events not just as spontaneous riots but as **planned criminal conspiracies** against the government. From an analytical perspective, those cases highlight how prosecutors prove agreement and intent in a politicized setting (often using defendants' own communications -- texts, social media posts, and coordinated actions -- to show a common plan). For our purposes, the [[January 6, 2021]] cases demonstrate both the potency of conspiracy charges in safeguarding government functions and the importance of clearly separating criminal acts from lawful protest or advocacy. The convictions required evidence of specific plans to **use force or commit illegal acts**, not just participation in a rally or heated speech. Similarly, any conspiracy prosecution around Trump-Russia would hinge on evidence of concrete illegal steps (deceit, false evidence, etc.), not on mere political opposition to Trump. It is noteworthy that in such charged cases, defendants have raised First Amendment defenses (claiming their rhetoric was protected or they sincerely believed in their cause), but courts have found those defenses unavailing where overt criminal conduct was involved (e.g., breaching the Capitol by force, or in our hypothetical, lying to a court). In sum, **case law shows that conspiracy statutes can reach politically charged misconduct** -- whether it's _collusive deceptions within government, subversive advocacy, or violent plots_. However, courts demand a high degree of proof and are mindful of constitutional limits. The pattern is that **conspiracies involving concrete criminal acts (fraud, obstruction, violence) are punished**, whereas attempts to prosecute pure political expression or association as "conspiracy" are rebuffed. This creates a roadmap for any Trump-Russia related prosecution: it would need to zero in on **provable deceptions or violations of law** committed in concert, and not appear as criminalizing mere political rivalry or differences of opinion. ## Hypothetical Application: Conspiracy to Falsely Accuse Trump of Russia Collusion Under this section, we explore how, hypothetically, conspiracy laws could be employed to prosecute individuals (whether government officials, campaign operatives, or others) who allegedly **conspired to propagate false accusations of Trump-Russia collusion**. We identify potential _charges_, _targets_, _overt acts_, and _legal theories_ for such a prosecution, emphasizing the need for solid evidence and mindful of constitutional protections. **Potential Conspirators and Objectives:** The universe of possible defendants might include persons from the 2016 [[Hillary Clinton]] campaign and its contractors, federal law enforcement or intelligence officials, or others in media/government who, evidence might show, **coordinated a knowing deception**. For example, one could posit a conspiracy involving certain [[FBI]] officials and private actors (like the opposition research firm [[Fusion GPS]] or dossier author [[Christopher Steele]]) to **defraud the U.S. government** by fabricating and disseminating the [[Steele Dossier]]'s allegations, with the aim of triggering government investigations and media firestorms to damage [[Donald Trump]]'s candidacy and presidency. Another possible object could be a conspiracy **to obstruct justice** -- if the plan included misleading the [[FBI]] and Special Counsel to impede a fair investigation. Or a conspiracy **to commit false statements** (18 U.S.C. § 1001) if multiple actors agreed to lie to federal investigators or Congress about material facts (for instance, a conspiracy between a witness and an official to provide a false alibi or cover story). A further theory, as discussed, could be conspiracy **to violate civil rights (§ 241)** if it involved abusing investigative powers to deprive individuals of their Fourth Amendment rights (through unlawful surveillance). It is important to articulate **the agreement and goal** clearly. A sample allegation might be: _"From in or about 2016 through 2017, A, B, and C did knowingly and willfully conspire together, and with others known and unknown, to defraud the United States by impairing, obstructing, and defeating the lawful functions of the [[FBI]], [[DOJ]], and FISA Court in investigating foreign interference in the election, by deceitful and dishonest means -- namely, by manufacturing and promoting false evidence of collusion between the Trump campaign and Russian officials, in order to induce those agencies to take official action harmful to [[Donald J. Trump]]."_ This frames the object as a § 371 defraud conspiracy. A parallel count might allege _conspiracy to make false statements_ (the object being 18 U.S.C. § 1001 violations) by, say, submitting the [[Steele Dossier]] and related false information to the [[FBI]] (an offense against the U.S.). Another count could charge _conspiracy to commit wire fraud_ if fundraising or other frauds were involved, though that seems less directly relevant. **Hypothetical Overt Acts:** To make this less abstract, here are specific examples of **overt acts** that could form part of the indictment, drawn from what is publicly known about the "Russiagate" saga (we emphasize these are hypothetical charges -- to date, no broad conspiracy indictment has been brought): - _Falsifying or Fabricating Evidence:_ One overt act could be the creation of the **[[Steele Dossier]]** itself -- if evidence showed that certain individuals **knew the dossier's contents were false or unverified but nonetheless compiled and delivered it to the [[FBI]]** as credible intelligence. The act of delivering the dossier to [[FBI]] leadership (e.g., via intermediary in [[July 2016]] and again in [[September 2016]]) could be an overt act. Another example is the alteration of an email by [[FBI]] lawyer [[Kevin Clinesmith]]: [[Kevin Clinesmith]] pleaded guilty to falsifying an email in 2017 to hide [[Carter Page]]'s past relationship with the [[CIA]], which was then used in a FISA renewal application. In a broader conspiracy, [[Kevin Clinesmith]]'s alteration (e.g., adding "not a source" to an email about [[Carter Page]]) would clearly qualify as an overt act in furtherance of deceiving the FISA court. It's a concrete, objectively verifiable action. The Durham Report confirms the [[FBI]] **[misled the Foreign Intelligence Surveillance Court by presenting false evidence and withholding exculpatory information](https://www.heritage.org/crime-and-justice/commentary/durhams-damning-report-assails-fbi-leadership-media-enabling-hillary)** in the [[Carter Page]] warrant process. Each such misrepresentation or omission to the FISA court could be charged as an overt act (and indeed as an underlying substantive offense, like false statement or even perjury to the court). - _Leaking Classified or Confidential Information:_ The conspiracy might have involved **leaks to the media** to fuel the collusion narrative. For instance, if conspirators agreed to leak details of the [[FBI]]'s investigation or classified intercepts to friendly reporters to spark damaging news stories, those leaks are overt acts (and felonies in their own right if classified). A known example: in [[April 2017]], news outlets reported on a FISA warrant against [[Carter Page]] -- information that was highly classified. If an [[FBI]]/[[DOJ]] insider and, say, a congressional staffer coordinated that leak as part of a broader scheme to sustain a public narrative of Trump-Russia links, that leak is an overt act (violating 18 U.S.C. § 793 or § 798, which criminalize unauthorized disclosure of national defense or surveillance information). **Unauthorized disclosures** of sensitive investigative details were rampant during 2016-2017, often to the detriment of the Trump administration. Each could be seen as furthering the conspiracy by keeping the collusion story in the headlines. For example, the Durham investigation revealed [text messages between [[FBI]] employees showing a strong anti-Trump bias](https://www.heritage.org/crime-and-justice/commentary/durhams-damning-report-assails-fbi-leadership-media-enabling-hillary) and a willingness to share information to affect outcomes. While bias alone is not a crime, if any coordinated leaking occurred, that's actionable. - _Lying to Investigators or Congress:_ On several occasions, key figures made statements that later proved false. If those lies were part of an agreed plan to cover tracks or inculpate Trump falsely, they are overt acts. For instance, [[Fusion GPS]] contractor [[Glenn Simpson]]'s testimony to Congress could be scrutinized -- did he lie about the dossier's sources or the [[FBI]]'s use of it? If [[Glenn Simpson]] and others coordinated a false narrative in their testimonies, that's conspiratorial. Likewise, when [[DOJ]] official [[Bruce Ohr]] acted as a backchannel for [[Christopher Steele]] after [[Christopher Steele]] was terminated as an [[FBI]] source, if [[Bruce Ohr]] concealed [[Christopher Steele]]'s motives or the [[Hillary Clinton]] campaign's funding of the dossier, that deception (even if internal to [[DOJ]]) might be considered an overt act furthering the plot to lend unwarranted credibility to the allegations. We also know Special Counsel [[John Durham]] prosecuted two individuals -- attorney [[Michael Sussmann]] and dossier source [[Igor Danchenko]] -- for allegedly lying to the [[FBI]] in 2016/2017. [[Michael Sussmann]] was accused of hiding that he was working for [[Hillary Clinton]] when he gave the [[FBI]] purported data about Trump and Alfa Bank; [[Igor Danchenko]] was accused of lying about his own sources. Though both were acquitted at trial, those cases identified specific falsehoods told to federal agents. If one could tie those falsehoods together as part of a _concerted effort_ to ignite an investigation of Trump based on false premises, they become overt acts of a single conspiracy (even if the individuals did not all meet in the same room -- conspiracy law can connect people through a _"chain" or "wheel"_ of agreements sharing a common goal). - _Misleading the FISA Court:_ This deserves special emphasis. Seeking a surveillance warrant from the FISA court using evidence one knows to be dubious or false is a very serious matter. The Durham Report and earlier [[DOJ]] Inspector General [[Michael Horowitz]]'s report (2019) documented that the [[FBI]] **[withheld key information and exaggerated the reliability of the [[Steele Dossier]] in FISA applications](https://www.heritage.org/crime-and-justice/commentary/durhams-damning-report-assails-fbi-leadership-media-enabling-hillary)**. For instance, they failed to inform the court that [[Christopher Steele]]'s own sub-source had contradicted parts of the dossier, and that the dossier was paid for by the DNC/[[Hillary Clinton]] campaign. Submitting the FISA warrant renewal in [[April 2017]] and [[June 2017]], after such problems were known, could itself be seen as overt acts extending the conspiracy (since each submission is an act to continue the surveillance -- and thus the narrative -- under false pretenses). If prosecutors could show that multiple officials discussed internally the weaknesses of the case but agreed to "press on" regardless, that would powerfully establish an agreement to defraud the court. Each renewal application, phone call, or memo furthering that effort is an overt act. Notably, overt acts **of concealment** (after the main goals are achieved) typically [do not extend a conspiracy](https://sgp.fas.org/crs/misc/R41223.pdf) unless the conspiracy's very objectives include covering up the scheme. However, in this hypothetical, the _cover-up_ (suppressing exculpatory info, lying to inspectors) might be argued as part and parcel of the continuing effort to maintain the collusion narrative. - _Coordination with Foreign Actors or Politicized Use of Intelligence:_ The Durham Annex (recently declassified) suggests there was intelligence that **[[Hillary Clinton]] campaign staff were ["preparing scandalous revelations" tying Trump to Russia](https://www.grassley.senate.gov/news/news-releases/newly-declassified-appendix-to-durham-report-sheds-additional-light-on-clinton-campaign-plan-to-falsely-tie-trump-to-russia-and-fbis-failure-to-investigate)** and hoping the [[FBI]] would "put more oil into the fire". If true, meetings or communications reflecting this strategy (for example, a campaign official briefing an ex-spy to get dirt and then that ex-spy briefing the [[FBI]]) could be overt acts. [[Fusion GPS]]'s outreach to media to publish stories about Trump and Russia (e.g., the ersatz story about a secret server connection to Alfa Bank) could also count. The key is showing these acts were not isolated, but coordinated -- e.g., _A_ agrees with _B_ that A will leak a story and _B_ will then cite the media story in official briefs to lend credence to the allegations (a sort of "circular intelligence" gambit). Indeed, it was documented that [[Christopher Steele]] briefed Yahoo News, which then published an article, which the [[FBI]] ironically cited in the FISA application as if it were independent corroboration. This suggests an orchestrated plan. Each step -- [[Christopher Steele]] talking to Yahoo, Yahoo publishing, [[FBI]] officials inserting it into the FISA affidavit -- is an overt act by various members of the conspiracy. In presenting such overt acts to a jury, prosecutors would craft a **chronology of the conspiracy**: e.g., (1) decision in spring 2016 to promote a Trump-Russia narrative ("[[[Hillary Clinton]]] approved...idea about Trump and Russian hackers hampering U.S. elections" as one email cited by Durham's annex suggests](https://www.grassley.senate.gov/news/news-releases/newly-declassified-appendix-to-durham-report-sheds-additional-light-on-clinton-campaign-plan-to-falsely-tie-trump-to-russia-and-fbis-failure-to-investigate)); (2) hiring of [[Christopher Steele]] and [[Fusion GPS]] to compile allegations; (3) dissemination of the dossier to [[FBI]] ([[July 2016]]) and to media (e.g., Mother Jones, [[September 2016]]); (4) [[FBI]] leadership's [rapid opening of Crossfire Hurricane without verifying the info](https://www.heritage.org/crime-and-justice/commentary/durhams-damning-report-assails-fbi-leadership-media-enabling-hillary); (5) a series of deceptive acts like the FISA filings, strategic leaks (e.g., about [[Mike Flynn]]'s calls, etc.), and false congressional testimonies; and (6) continuing efforts into 2017 to sustain the investigation despite internal doubts (Durham notes even [[Peter Strzok]] said ["there's nothing to this" yet pressed on](https://www.heritage.org/crime-and-justice/commentary/durhams-damning-report-assails-fbi-leadership-media-enabling-hillary)). By weaving these into a narrative, the prosecution would argue there was a single conspiracy uniting [[Hillary Clinton]] associates and sympathetic officials to _use fraudulent methods to instigate and prolong a federal investigation for political purposes_. **Challenges of Proof:** This is, needless to say, an extraordinarily complex case to prove. It would require evidence of **intentional wrongdoing** -- not just sloppy investigation or people truly believing mistaken allegations. The defense would argue, as many involved have, that they acted on genuine (if mistaken) concerns about Trump's Russia ties, and that sharing information with the [[FBI]] or media, even if unproven, is not a crime absent a known falsehood. To overcome this, prosecutors would need "smoking gun" evidence like emails or testimony revealing that conspirators _knew_ the information was false or were deliberately **manufacturing a narrative ("let's make up something to stop Trump")**. Some hints of such knowledge exist (for example, the primary sub-source for the dossier, [[Igor Danchenko]], told [[FBI]] he didn't believe some stories and much was hearsay; also, the [[CIA]] warned the [[FBI]] that [some material might be Russian disinformation](https://www.grassley.senate.gov/news/news-releases/newly-declassified-appendix-to-durham-report-sheds-additional-light-on-clinton-campaign-plan-to-falsely-tie-trump-to-russia-and-fbis-failure-to-investigate)). A conspirator's awareness that the dossier was at least partly bogus, yet deciding to push it regardless, would satisfy intent. Also, any evidence of explicit **coordination** -- say, an email from a campaign official to an [[FBI]] contact saying "Time to ignite the investigation" -- would be a bombshell. Short of that, the case might have to be circumstantial: showing an unusual pattern of concurrent actions and communications from which an agreement is inferred. **Constitutional and Policy Concerns:** A prosecution like this walks a fine line. On one hand, if individuals **conspired to lie to the government and the courts**, it is plainly within the realm of criminal law. On the other hand, the backdrop is a heated political rivalry. Defense lawyers would no doubt claim the prosecution itself is politically motivated (more on that below) and that _their clients were engaging in core political speech and advocacy, not crime_. They might claim, for instance, that providing opposition research to the [[FBI]] or urging an investigation is protected by the First Amendment's Petition Clause (the right to petition the government). However, that right doesn't extend to **lying** to the government. The Supreme Court has stated that [speech _integral to criminal conduct_, such as agreements in a conspiracy or solicitations to commit crime, is **not protected by the First Amendment**](https://sgp.fas.org/crs/misc/IF11072.pdf). In other words, while anyone can petition the [[DOJ]] to investigate a rival, you **cannot knowingly furnish false information** as part of a scheme -- that crosses into criminal fraud. Similarly, leaks of classified info are not protected speech; they violate federal law and are outside First Amendment protection (especially for government employees under oath to protect such info). As for any _journalists_ involved, prosecutors would tread carefully -- media outlets publishing information (even if leaked or false) have strong First Amendment protections unless they actively participated in the conspiracy to deceive (which would be quite the threshold). **Comparison to Defamation:** Some might wonder, why not simply view the false collusion accusations as defamation against Trump? Indeed, in civil law, Trump (as a private citizen or candidate) could potentially sue for defamation, but as President/public figure he'd need to prove ["actual malice" -- knowledge of falsity or reckless disregard](https://sgp.fas.org/crs/misc/IF11072.pdf). The bar for criminal libel is even higher and, in modern law, **criminal defamation statutes are rarely enforced** due to First Amendment concerns. That's why the route of using **conspiracy statutes** (targeting the _fraud on government and unlawful acts_, not the _speech about Trump_ per se) is more viable legally. The injury in a § 371 case is to the government's functions and public administration of justice, not directly to Trump's reputation. That somewhat sidesteps First Amendment issues about political speech: the crime is not that the conspirators _accused Trump_ (they could shout their accusations from the rooftops, however false, and likely be safe from prosecution in most instances as opinion or political speech), but that they **lied to federal officials/courts and fabricated evidence**. Those lies are _not protected_ -- as the Supreme Court noted in _Illinois ex rel. Madigan v. Telemarketing Assocs._, [fraud is not shielded by free speech when it causes concrete harm](https://sgp.fas.org/crs/misc/IF11072.pdf). Likewise, false statements that are material to government decisions (like FISA warrants) are punishable. This distinction is crucial to maintain the legitimacy of a prosecution and to survive a motion to dismiss on constitutional grounds. In sum, a carefully crafted indictment would focus on a **scheme of deceit targeting government processes**, list overt acts such as the dossier hand-offs, the FISA applications, and specific lies, and connect the dots among the players. It would likely invoke § 371 (conspiracy to defraud the U.S.), possibly § 1001 (false statements) and § 241 (conspiracy against rights, if surveillance abuse is framed that way). The prosecution would portray the defendants not as political activists, but as individuals who _crossed the line into criminal conduct_ by **willfully providing false information and subverting institutions** for political ends -- a form of fraud on the government and the public. Whether such a case would be **provable beyond a reasonable doubt** is another matter; it would be unprecedented in many ways, and an enormous challenge. However, the legal tools exist and the above analysis shows how they could be applied if sufficient evidence were developed. ## Prosecutorial Discretion and Political Bias in Prosecutions A decision to bring (or not bring) a conspiracy prosecution in a matter entangled with politics -- like the Trump-Russia allegations -- falls squarely within the realm of **prosecutorial discretion**. Prosecutors have broad discretion in deciding whom to charge and with what crimes, and that discretion can be influenced (explicitly or subtly) by political considerations. Here we address how the legal system views such discretion and bias, and the checks (or lack thereof) on politically motivated prosecutions. **Neutrality Not Legally Required:** It may come as a surprise, but there is _no general rule or constitutional provision that prosecutors must be politically neutral_ in their [charging decisions](https://www.boylejasari.com/is-there-anything-that-can-be-doneto-stop-politically-motivated-prosecutions/). As a practical matter, ethical guidelines urge pursuing justice without improper bias. Yet, American history is rife with examples of prosecutions influenced by politics (from the [[Aaron Burr]] treason trial orchestrated by President [[Thomas Jefferson]], to local district attorneys targeting political opponents). A recent commentary by defense attorney [[Dennis Boyle]] encapsulates this reality: _["It doesn't matter if the prosecution is politically motivated. There is no rule, no constitutional norm, that requires a prosecutor to be neutral... [W]e live in a nation with a long history of political prosecution."](https://www.boylejasari.com/is-there-anything-that-can-be-doneto-stop-politically-motivated-prosecutions/)_ The author bluntly notes that [many high-profile cases have political overtones, and elected prosecutors often gain career benefit from taking on prominent targets](https://www.boylejasari.com/is-there-anything-that-can-be-doneto-stop-politically-motivated-prosecutions/). While this is a cynical view, it is grounded in truth -- oversight of prosecutorial decisions typically comes from the voters (for elected DAs) or superiors in the [[DOJ]], not from courts. **Selective Prosecution Doctrine:** The judicial branch provides only a narrow remedy for prosecutions that are improperly motivated: a defendant can claim "selective prosecution" in violation of the Equal Protection Clause (Fifth Amendment for federal cases, Fourteenth for state). However, this is an _extremely hard_ claim to prove. The defendant must show that others similarly situated (who committed the same offense) were not prosecuted, and that the decision to prosecute _was made on an unjustifiable standard such as race, religion, or another arbitrary classification_. Political affiliation or personal animus is not typically enough -- courts require evidence of discrimination against a protected class or an intention to punish the defendant for exercising a constitutional right (like selective prosecution to retaliate for free speech, which overlaps with First Amendment retaliation doctrine). In the context of an "America First" defendant, if one were charged and claimed "this is only because I'm a Trump supporter," a court would demand proof that _non-Trump-supporters who did the same conduct were let off_. That showing is rarely possible. Moreover, if the charge itself is supported by probable cause, courts are reluctant to second-guess the prosecutor's motives. So, while the **perception** of bias can be strong, the **legal remedy** is usually absent unless blatant evidence emerges (for example, a prosecutor's memo explicitly saying "don't charge Democrats for this crime, only Republicans"). **Prosecutorial Restraint and Special Counsels:** Recognizing the peril of perceived bias, the system sometimes resorts to special or independent prosecutors to handle politically sensitive cases. In the Trump-Russia matter, we saw both sides of this: Special Counsel [[Robert Mueller]] led the investigation into Trump's campaign, and later Special Counsel [[John Durham]] investigated the investigators. The idea was to assure the public of an extra measure of impartiality. Nonetheless, both [[Robert Mueller]]'s and [[John Durham]]'s efforts drew criticism of bias from different camps, suggesting that _in hyper-partisan matters, true consensus on neutrality is elusive_. Ultimately, a prosecutor deciding whether to pursue a conspiracy case against "Russiagate" figures would have to weigh not just the legal sufficiency of evidence, but the _broader impact on public trust_. On one hand, failing to prosecute provable crimes due to the political status of suspects would undermine the rule of law (no _de facto_ immunity for a favored class); on the other, launching a prosecution that half the country sees as a vendetta could also erode confidence in justice. **The Two-Tiered Justice Concern:** Many conservatives argue that there is a "two-tiered" justice system -- one that is lenient towards certain political actors and harsh towards others. For example, they point out that several people on Trump's side ([[Michael Flynn]], [[George Papadopoulos]], [[Paul Manafort]], etc.) were aggressively prosecuted for offenses uncovered during the Russia probe, whereas individuals on the other side (like those involved in initiating the probe or allegedly lying in the FISA process) largely escaped charges apart from a single guilty plea by [[Kevin Clinesmith]]. This perception fuels calls for accountability via conspiracy charges. From a legal perspective, unequal outcomes alone do not prove bias -- differing facts and evidentiary hurdles can explain it. But it does fall to prosecutors (and ultimately the Attorney General or Congress) to examine whether **not pursuing certain charges was a matter of lack of evidence or inappropriate favoritism**. If it was the latter, that itself is an injustice. The challenge is that proving or disproving bias is complex. Prosecutors rarely admit to political influence, and internal deliberations are confidential. Congressional oversight can shed light -- for instance, through hearings like those examining the [[FBI]]'s Crossfire Hurricane conduct -- but even then, connecting the dots to prosecution decisions is hard. **Recent Legislative Proposals:** As mentioned, the **[No More Political Prosecutions Act of 2023](https://www.congress.gov/committee-report/118th-congress/house-report/371/1)** was a legislative response to concerns that state and local prosecutors (like Manhattan DA [[Alvin Bragg]] and Fulton County DA [[Fani Willis]], who charged Trump in 2023) were driven by partisan aims. That Act would enable former and current presidents or vice presidents to [remove their cases to federal court](https://www.congress.gov/committee-report/118th-congress/house-report/371/1). While removal doesn't stop a prosecution, it moves it to what is perceived as a more neutral forum ([a federal judge with life tenure, a jury pool beyond a single locality](https://www.congress.gov/committee-report/118th-congress/house-report/371/1)). This reflects an understanding that state or local prosecutors -- who are elected and often politically active -- might pursue cases for political gain. In the context of our hypothetical conspiracy (which likely involves federal officials and federal law), state prosecutions would be secondary, but if they occurred, similar [removal statutes could apply for federal officers](https://www.congress.gov/committee-report/118th-congress/house-report/371/1) (28 U.S.C. § 1442 allows removal of state cases against federal officers for acts under color of office). **Prosecutorial Discretion in Charging Decisions:** Even if evidence might support charges, a prosecutor can **decline to charge** in the interest of justice or institutional priorities. In a scenario where a new administration's [[DOJ]] is reviewing the Trump-Russia investigators, they might conclude that charging ex-[[FBI]] or [[DOJ]] officials (no matter how wrongful their actions) could be too divisive, or that administrative discipline and public reports suffice. This is a discretionary call. Critics could label it a cover-up or "deep state" protection; supporters might call it healing and moving on. Historically, [[DOJ]] often declines to charge officials for malfeasance absent _clear criminal intent_, especially if the conduct can be framed as misjudgment rather than knowing law-breaking. For instance, [[DOJ]] did not charge certain [[FBI]] officials even after the Inspector General found they violated policy in the Russia case -- presumably because proving criminal intent (beyond a reasonable doubt) was deemed unlikely, and the cost to the Bureau's reputation of a failed prosecution would be high. In contrast, _[[John Durham]] did charge_ two private individuals ([[Michael Sussmann]] and [[Igor Danchenko]]) for process crimes and an [[FBI]] lawyer ([[Kevin Clinesmith]]) who admitted guilt. That indicates some willingness to prosecute, but stops short of alleging a grand conspiracy. From an "America First" perspective, one might argue that **failing to charge an obvious conspiracy due to political considerations is itself a political decision** -- essentially a dereliction of duty to avoid ruffling feathers. But [[DOJ]] as an institution also strives to appear apolitical, and ironically that can lead to _inaction_ in politically fraught cases (to avoid appearing partisan, they do nothing -- which has its own partisan effect, arguably). A special counsel or independent prosecutor can help alleviate that tension, as they operate a step removed from main [[DOJ]]. In any case, discretion is part of the equation: even with evidence in hand, prosecutors must assess the likelihood of conviction (would a jury be convinced or see it as politics?), the significance of the harm, and the precedent it sets. **Defense: Abuse of Process and Bias Arguments:** If a prosecution were brought, the defense can raise bias in various guises at trial. They might seek discovery of communications to find if anyone in [[DOJ]] was under political pressure. They might try for a _change of venue_ if they feel the jury pool in D.C. is biased. During trial, they could argue to the jury that the case is a "witch hunt" -- effectively nullification arguments that, even if technically guilty, the defendants are scapegoats of a political vendetta. These aren't legal defenses per se, but they can resonate with jurors. Prosecutors would likely preempt this by emphasizing that _facts are stubborn things_, and the case is about tangible lies and acts, not politics. Indeed, a smart prosecution team in this hypothetical would probably avoid a narrative that paints Trump as victim and instead frame it as _"the U.S. government and courts were the victims of a fraud"_. That shifts focus to protecting institutions (something even jurors who dislike Trump might value). In summary, **prosecutorial discretion in politically sensitive conspiracies is both a sword and shield**. It can ensure that only solid cases go forward (shielding against flimsy, purely partisan accusations), but it can also be wielded to _avoid accountability_ for political favorites. The legal system gives prosecutors enormous latitude, and direct checks on bias are minimal. Thus, any decision to charge in the Trump-Russia matter would come down to leadership at [[DOJ]] having confidence in the evidence and the righteousness of the case, and a willingness to weather the political storm that would ensue. Conversely, a decision not to charge could reflect caution, lack of evidence, or yes, bias -- but it would likely stand, barring new revelations or public pressure prompting another review. ## Constitutional Defenses and Protections (First & Fourth Amendments) Any prosecution arising from the Trump-Russia "hoax" allegations would need to navigate the constitutional rights of the accused and the delicate interplay between criminal law and freedoms of speech and political activity. Here we discuss two key constitutional angles: **First Amendment** protections (free speech, free press, right to petition) and **Fourth Amendment** issues (both in terms of alleged violations forming the basis of charges and the rights of defendants during prosecution). We also touch on other potential defenses such as due process and fair trial concerns. **First Amendment -- Free Speech and Political Advocacy:** The First Amendment looms large over any case entangled with political discourse. Defendants would likely argue that much of their conduct was speech or advocacy about a matter of public concern (the fitness of a presidential candidate) and thus protected. However, the First Amendment **[does not protect speech that is itself part of a criminal act](https://sgp.fas.org/crs/misc/IF11072.pdf)** or scheme. The Supreme Court has consistently held that _"speech integral to criminal conduct"_ -- such as agreements in a conspiracy, solicitations or instructions to commit crime, or fraudulent representations -- is outside First Amendment protection. For example, if A and B verbally agree to forge evidence, that conversation (speech) is not protected; it is an **illegal conspiracy**. Likewise, if someone lies to a federal agent, that speech (the lie) is not protected by free speech rights -- 18 U.S.C. § 1001's prohibition on false statements to the government is constitutional because it targets [knowingly false factual statements made in a context where they cause concrete harm to government functions](https://sgp.fas.org/crs/misc/IF11072.pdf). In _United States v. Alvarez_ (2012), the Supreme Court struck down the Stolen Valor Act, which criminalized lying about military honors, as violating free speech -- but the Court took care to note that [lies that cause legally cognizable harm (such as fraud or perjury or interference with government processes) _can_ be punished](https://sgp.fas.org/crs/misc/IF11072.pdf). So, in our scenario, while an individual has the right to **argue** "I think Trump colluded with Russia" in public (even without evidence, even maliciously), they do **not** have a right to, say, _fabricate a document and submit it to the [[FBI]]_ or _conspire to leak classified info_. The line gets trickier with things like leaks to the press or spreading rumors. Suppose a campaign official gave an unfounded tip to a journalist ("Russia has compromising tapes of Trump"). That is speech, and if done outside of any oath or official proceeding, it might actually be protected or at least not illegal -- unless it's defamatory (but defamation of a public figure requires actual malice). Here, actual malice (knowledge of falsity or reckless disregard) might exist, but criminal defamation is virtually never pursued, and a conspiracy to defame would be unusual (plus truth as a defense would bog down the case into whether Trump _did_ have ties, which is not the focus we want). Thus, **public dissemination of false allegations** is mostly beyond the reach of criminal law due to the First Amendment, unless it involves things like incitement, election interference, or other specific crimes. The better approach, as noted, is to focus on **speech acts that are already criminal** (false statements to government, perjury, etc.). The defendants might also raise the **right to petition the government** (a component of the First Amendment). They could claim that giving information to the [[FBI]] or urging an investigation was a form of petitioning for redress of grievances (albeit grievances about an opposing candidate). However, petitioning does not protect **fraud on the government**. The Noerr-Pennington doctrine in antitrust law, for instance, gives immunity for petitioning the government but not if the petitioning is a _"sham"_ (i.e., objectively baseless and intended to abuse process). Analogously, telling the [[FBI]] "please investigate this" is fine -- _unless_ the request is founded on lies. The [government has a right not to be lied to in its proceedings](https://sgp.fas.org/crs/misc/IF11072.pdf). In addition, government officials themselves (like [[FBI]] agents or contractors) can't hide behind the First Amendment for their on-duty actions; the First Amendment doesn't entitle one to lie in a sworn warrant application or to disclose classified info one promised to protect. Another potential First Amendment aspect is freedom of the press. If any journalists were considered part of the conspiracy (say, hypothetically, journalist X conspired with a source to publish disinformation timed to influence the [[FBI]]), it raises delicate issues. The press has broad leeway to publish information, even classified info (the publisher is generally protected, as per the Pentagon Papers case, unless they actively participated in unlawful acquisition). It's unlikely a prosecution would target journalists; it would focus on government or campaign actors feeding info. At most, reporters might be witnesses, which brings its own challenges (reporter's privilege fights). **Therefore, a well-framed prosecution should not chill legitimate speech or political advocacy** -- it should target _deceitful conduct_. If drafted as such, First Amendment defenses should not legally bar the case. However, from a _jury nullification_ perspective, defendants might try to wrap themselves in the First Amendment, claiming they were engaged in political speech or that the prosecution is effectively punishing them for being anti-Trump. The prosecution would counter that no, it's punishing them for _lying and scheming_, not for their opinions about Trump. **Fourth Amendment -- Unreasonable Searches and Seizures:** The Fourth Amendment issues are twofold: (1) the underlying conspiracy might involve violating others' Fourth Amendment rights (e.g., the alleged unlawful surveillance of [[Carter Page]] via a misleading warrant), and (2) the defendants' own Fourth Amendment rights in the course of being investigated/prosecuted. On the first point, if part of the conspiracy is to conduct illegal searches (like a baseless FISA warrant), that is both a criminal act and a constitutional violation. Typically, conspirators can be charged with the substantive civil rights violation (as with [[John Ehrlichman]] under 18 U.S.C. § 241 for the burglary). In our hypothetical, an indictment could explicitly state that one object of the conspiracy was "to violate the Fourth Amendment rights of U.S. Person(s) by subjecting them to electronic surveillance without probable cause." This would not only underscore the wrongdoing but also resonate with an originalist view that sees the Fourth Amendment as a fundamental check on government abuse. Ironically, using a false warrant to spy on a political campaign is the sort of tyranny the Founders might have feared; framing it as a conspiracy against rights ties the modern facts to constitutional principle. Now, with regard to the _defendants'_ Fourth Amendment rights, any prosecution must of course use evidence obtained in compliance with the Fourth Amendment. There is an interesting twist: some evidence of the conspirators' actions might come from government surveillance or searches of their communications. If, hypothetically, during [[John Durham]]'s investigation, the [[DOJ]] obtained emails or phone records of suspects, those would need a lawful warrant or legal process. One could imagine a scenario where some communications were discovered in counterintelligence surveillance or through the Inspector General's review. Defendants could challenge that evidence if it was gathered improperly. However, since these individuals were often government officials using government systems, a lot of evidence came from government records (which involves less expectation of privacy) or was volunteered to investigators. It's unlikely there is a "fruit of the poisonous tree" issue that benefits the defendants -- usually that doctrine protects defendants when _their_ rights were violated in collecting evidence. Here, the "poisonous tree" was arguably the original [[FBI]] investigation, but that targeted Trump associates, not the would-be defendants. If anything, _Trump's_ Fourth Amendment rights were arguably infringed (via [[Carter Page]], etc.), not the rights of those who initiated it. So the defendants can't complain that evidence against them derived from an illegal FISA on [[Carter Page]] -- that unlawfulness (if proven) violated [[Carter Page]]'s rights, not theirs. In fact, it's the _government_ (as prosecutor now) that might have been the victim of the earlier team's misrepresentations. Therefore, suppression is not a big concern unless prosecutors themselves commit some misstep in evidence gathering. One area to watch is if any evidence is classified or touches intelligence equities. Surveillance on Americans in 2016-17 might have revealed communications that inculpate or exculpate potential defendants. Handling that evidence would invoke the Classified Information Procedures Act (CIPA) to ensure a defendant's right to a fair trial is balanced against security. Defendants might argue they need certain classified info (say, the details of what was actually found on [[Carter Page]] or [[George Papadopoulos]]) to argue that their actions were justified or that any false statements were immaterial. For example, they might say: _Even if we lied, the surveillance found stuff that made it worth it._ That's not a legal defense to lying, but could influence a jury's sympathies. The court would have to manage those issues carefully, perhaps limiting irrelevant detours into whether Trump _really had concerning contacts_ (which is not on trial). Additionally, defendants could raise **due process** arguments if they feel the prosecution is fundamentally unfair. One could imagine a claim of _outrageous government conduct_ -- that the prosecution is punishing them for things the government itself did. Or a laches-type argument that the government waited too long (though within SOL) purely for political timing. These are longshots. **Defenses on Mens Rea and Factual Innocence:** Beyond constitutional defenses, the likely key defense is lack of intent. The defendants will say: _We didn't conspire; we genuinely believed Trump might be compromised by Russia._ If even one juror believes a defendant was _just doing their job or pursuing a legitimate concern, not knowingly engaging in a fraud_, that can result in acquittal or a hung jury. This is where evidence of **scienter** (knowledge of falsity) is crucial for the prosecution. Conversely, evidence of **good faith** helps the defense. For instance, if an [[FBI]] agent can show they included some caveats about the dossier in internal emails, or pushed back at certain claims, they'll argue that shows lack of intent to deceive. An "originalist" minded judge might also be sympathetic to not expanding criminal liability to borderline cases of bureaucratic error or differences in investigative judgment. A bedrock principle is that crimes require a _vicious will_ -- here meaning a deliberate intent to do wrong. The defense will hammer that point: "Our clients at most made mistakes under pressure, which is not a crime." The prosecution will counter with any evidence of collusion or extreme bias (like [[Peter Strzok]]/[[Lisa Page]] texts showing an anti-Trump mission), to imply they were willing to cut corners or worse. Still, bias alone is not illegal; it must tie to specific intentional acts. **First Amendment Right to a Fair Trial (Public Trial, Impartial Jury):** On a final note, given the high-profile nature, defendants might claim pretrial publicity (much of the country already has opinions on Russiagate) jeopardizes an impartial jury -- invoking their Sixth Amendment right to a fair trial. Change of venue from D.C. could be sought (though likely denied, as D.C. courts have handled many political cases by voir dire to weed out bias). The trial judge will instruct jurors to put aside politics and focus on facts. In _practice_, seating a jury that doesn't have preconceived notions will be tough; both sides will carefully vet jurors for signs of strong political leanings. **Conclusion on Constitutional Issues:** From an originalist viewpoint, the conspiracy and fraud statutes are being used to protect core constitutional values (the integrity of government processes, Fourth Amendment rights of citizens, etc.), not to suppress legitimate speech. _If properly confined to intentional, deceptive conduct,_ such a prosecution can coexist with the First Amendment. Indeed, **originalists often note that fraud, perjury, and conspiracy were punishable at the time of the founding** and do not fall under the umbrella of protected speech or activity. The Fourth Amendment's role here is largely as the interest that was violated by the conspirators, reinforcing the seriousness of their alleged crimes. Ensuring the defendants themselves have full Fourth Amendment and due process protections during the investigation and trial will bolster the legitimacy of the outcome -- an aspect any conscientious prosecutor (or judge) would be keenly aware of. ## Relevant Precedents and Recent Developments in Conspiracy Law This final section highlights some key Supreme Court and appellate precedents that shape conspiracy law, and notes any recent legislative or judicial changes that could affect a prosecution of the type contemplated. **Supreme Court Precedents:** - _Krulewitch v. United States_, 336 U.S. 440 (1949) -- Recognized that a conspiracy ends when its central objectives are achieved or abandoned, and warned against expanding conspiracies via tacit "cover-up" phases unless there was a specific agreement to continue concealing the crime. This case would caution that if, say, the "Russia hoax" conspiracy achieved its goal (launching the investigation), later parallel acts of cover-up might not be admissible to extend the conspiracy unless secrecy was part of the original plan. (Justice Jackson famously called conspiracy charge a "prosecutor's darling," warning of its potential for abuse, which defense might quote to urge strict construction.) - _Grunewald v. United States_, 353 U.S. 391 (1957) -- Further clarified the difference between acts of concealment done in furtherance of the main conspiracy and acts of concealment after the main aims are accomplished ([the latter do not extend the conspiracy for statute of limitations purposes](https://sgp.fas.org/crs/misc/R41223.pdf)). In any lengthy scheme like Crossfire Hurricane, one would analyze when did the conspiracy's objective conclude -- was it when [[Robert Mueller]] was appointed? When Trump left office? Or is it ongoing? Grunewald would be a guide. - _Pinkerton v. United States_, 328 U.S. 640 (1946) -- As mentioned, established vicarious liability for conspirators. This means each member can be held accountable for others' foreseeable acts in furtherance. If applied, a conspirator could be convicted not only of conspiracy but also substantive offenses committed by partners (e.g., if one leaked classified info, all could be guilty of violating 18 U.S.C. § 793 under Pinkerton). However, prosecutors might exercise restraint in piling on such liability in a political case to avoid overreach accusations. - _Braverman v. United States_, 317 U.S. 49 (1942) -- Held that a single agreement cannot be prosecuted in multiple conspiracy counts; one conspiracy with multiple illegal objects is still one conspiracy (with one penalty cap). For our hypothetical, that means [[DOJ]] would likely charge one overarching conspiracy rather than separate ones for defraud, false statements, etc., or if multiple, ensure they're truly distinct agreements. - _Dennis_ (1951) and _Yates_ (1957) -- discussed earlier, balancing national security and free speech in conspiracy context. They won't directly dictate outcomes here, but stand as reminders about not over-criminalizing political expression. - _Beckles v. United States_, 580 U.S. 256 (2017) -- (This is more about vagueness and the Sentencing Guidelines, but note: conspiracy statutes have occasionally been challenged as "vague" especially the defraud clause. The courts have consistently rejected those challenges, citing the clear definitions from Hammerschmidt, etc. Originalists on the Court, like Justice [[Neil Gorsuch]], have shown concern about vague laws, but § 371 has survived because case law has concretized it.) - _Kelly v. United States_, 590 U.S. ___ (2020) -- The "Bridgegate" case. While not a conspiracy case per se (it was wire fraud and federal program fraud charges against NJ officials who realigned traffic lanes as political payback), the Supreme Court unanimously overturned those convictions, basically saying **not every act of official dishonesty is a federal crime**. The defendants had lied about a "traffic study" to cover up a political retaliation scheme, but the Court found that because their scheme didn't aim to obtain money or property, it wasn't fraud within the meaning of the statutes used. _Kelly_ is relevant in spirit: it reflects the Court's reluctance to criminalize political wrongdoing that isn't clearly within a federal statute's terms. Defense in our case could argue similarly: that what prosecutors call a conspiracy to defraud the U.S. was, in defendants' view, bureaucratic decision-making and political spin, not the kind of fraud § 371 covers. The counter is that _Kelly_ was about the limits of property fraud statutes, whereas [§ 371's defraud clause explicitly covers impairing government functions](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us). Indeed, Bridgegate might have been chargeable as a § 371 defraud conspiracy (to misuse the Port Authority's resources by deceit) if framed differently. So _Kelly_ serves as a caution to prosecutors to fit conduct squarely within the statute and not stretch statutes to cover political grudge-settling unless it truly matches the offense definitions. - _Smith v. United States_, 568 U.S. 106 (2013) -- Held that a defendant bears the burden of proving withdrawal from a conspiracy once the government establishes the conspiracy and the defendant's participation. This means if any defendant claims "I later pulled out of the scheme," they must prove they took affirmative acts to withdraw (like reporting to authorities or clearly cutting ties). In a lengthy alleged conspiracy, if someone like an [[FBI]] official later claims they tried to stop the investigation, etc., that could be a withdrawal defense, but _Smith_ says the burden is on them to show it. - _Whitfield v. United States_, 543 U.S. 209 (2005) -- Reiterated that no overt act is required for certain conspiracies (in that case, money laundering conspiracy) and that [courts shouldn't imply an overt act requirement where Congress didn't include one](https://www.ca3.uscourts.gov/sites/ca3/files/2021%20Chapter%206%20Conspiracy%20for%20posting%20final.pdf). For us, overt acts _are_ required by § 371, but Whitfield's import is limited. It does, however, reinforce that the existence of an overt act in many statutes is up to legislature, not constitutional demand. **Recent Judicial Developments:** The law of conspiracy itself hasn't been drastically altered in recent years, but its **application** in high-profile contexts has drawn renewed scrutiny. Some developments to note: - The [[January 6, 2021]] cases, as mentioned, revived use of **seditious conspiracy** after many decades. Courts upheld that statute against constitutional challenges (defendants argued it was overbroad, etc., but judges found the evidence of planning to use force took it out of protected speech). Those cases will likely produce appellate decisions clarifying where First Amendment ends and conspiracy begins in the protest/riot context -- that could indirectly influence how a court sees the Trump-Russia conspiracy charges, especially regarding distinguishing political activism from a deliberate unlawful plan. - The [[John Durham]] investigation's outcomes (or lack thereof) could influence [[DOJ]]'s future approach. [[John Durham]]'s only guilty plea was from [[Kevin Clinesmith]] (who got probation), and two trials resulted in acquittals. This might discourage future prosecutors from trying similar cases without rock-solid evidence, or conversely, it might spur them to refine how they present such cases to juries ([[John Durham]] was critiqued for perhaps overcharging or relying on jurors to connect complex dots). - **Statutory changes:** There have been calls to possibly amend FISA processes and surveillance laws in light of the abuses identified (for instance, to impose criminal penalties for officials who lie to the FISA court or to strengthen oversight). If any such amendments passed, they could create new offenses (e.g., a specific statute for knowingly submitting false info to FISC). That would provide a more targeted tool than the generic conspiracy or false statement charges. As of 2025, Congress has debated FISA reforms (Section 702 renewal issues, etc.), but no specific new criminal statute has been enacted yet in response to Crossfire Hurricane. It's something to watch, as an _originalist legislator's approach_ might be: rather than stretch existing law, pass a clear law for this scenario going forward. - At the state level, one notable development: Some states (like Georgia in the 2020 election case) have extremely broad **RICO (racketeering) statutes** that allow political acts to be lumped into a conspiracy charge if they form a pattern of racketeering. Georgia indicted a range of actors (including lawyers) in an alleged election-interference enterprise, raising concerns about criminalizing legal advice/political maneuvering. While that's a separate matter, it shows a trend of using conspiracy-type statutes expansively in political controversies. Our analysis mostly sticks to federal law, but an "America First" audience might compare the aggressive use of RICO against Trump's team in Georgia with the restraint shown in charging those who pushed the Russia narrative. The implication might be: if such tactics are fair game, they should be applied evenhandedly. This is more a political argument than a legal one, but it underscores the evolving landscape where conspiracy/RICO laws are increasingly part of the political battlefield. - **Originalist scholarship:** In recent years, some conservative scholars have questioned the breadth of federal criminal law, including conspiracy. An originalist might note that in 1789, there were few federal crimes and no general federal conspiracy statute -- 18 U.S.C. § 371's ancestor was first enacted in 1867 during Reconstruction to combat fraud on the government. Therefore, an originalist might counsel that any application of it must be faithful to its text and historical purpose (protecting legitimate government functions from deceit). Using it to effectively criminalize what some might view as "dirty politics" could be seen as a slippery slope if not firmly rooted in clear deceptive acts. However, given the clear line of cases from _Hammerschmidt_ onward, using [§ 371 for government-function fraud is well-established](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us). Originalism here would likely reinforce holding government actors to constitutional boundaries: conspiring to violate someone's rights or to abuse a federal court is exactly the kind of misuse of power the post-Civil War Congress (which passed the early conspiracy statute and civil rights conspiracy laws) meant to punish. **Legislative Developments:** We touched on the [No More Political Prosecutions Act](https://www.congress.gov/committee-report/118th-congress/house-report/371/1) (which as of this writing is a proposal, not law). Another legislative topic is **reform of § 1001 (false statements)** -- some have argued it's too broad or can be abused (charging process crimes when the underlying investigation finds no crime). Congress hasn't changed § 1001, but awareness of its use in the [[Robert Mueller]] probe (which caught people like [[Michael Flynn]], [[George Papadopoulos]] in lies) has grown. If a "turnabout" prosecution were attempted, those defendants might ironically cite how those charges were criticized and try to turn the tables, saying, "Now you're charging us with the same kind of process crimes." In any event, the laws on the books are sufficient for a conspiracy prosecution without need for new statutes. To summarize recent developments: The law of conspiracy remains a robust tool, recently applied in diverse high-profile contexts (election interference by foreigners, election interference domestically on [[January 6, 2021]], and even tangentially in state RICO cases). Courts are generally reaffirming that **conspiracy charges, when grounded in concrete criminal acts, are valid even if the context is political**. But they are also careful to require that the **line into criminality** (like use of deceit or force) be clearly crossed. The success of any future prosecution for a "conspiracy to smear Trump with false collusion claims" would depend on aligning the case with those principles -- showing clear, intentional deception (not merely political opinion) and identifiable violations of law (not just unethical behavior). If that can be done, the rich body of conspiracy precedent provides a framework to pursue accountability, and in doing so, to vindicate the idea that **political partisans cannot immunize themselves if they subvert legal processes through fraud or collusion**. ## Conclusion In conclusion, federal conspiracy law -- chiefly 18 U.S.C. § 371 -- and analogous state laws offer a potentially powerful mechanism to address coordinated efforts to perpetrate a fraud on governmental processes, even when those efforts are wrapped in political garb. A prosecution in the Trump-Russia collusion context would require carefully marshaling evidence of an agreement and overt acts undertaken with the intent to deceive the government (and possibly to violate individuals' rights), all while guarding against criminalizing mere political speech or bias. The legal elements (agreement, overt act, intent) set a high bar that ensures only genuine, knowing collusion to break the law is punishable. As analyzed, actions such as falsifying evidence submitted to the FISA Court, leaking classified information as part of a scheme, or lying to investigators can serve as concrete overt acts of a [conspiracy to defraud the United States](https://www.grassley.senate.gov/news/news-releases/newly-declassified-appendix-to-durham-report-sheds-additional-light-on-clinton-campaign-plan-to-falsely-tie-trump-to-russia-and-fbis-failure-to-investigate). Precedent demonstrates that courts will uphold conspiracy charges in politically charged cases **so long as the conduct involves crimes or frauds**, and not mere [political opposition](https://law.justia.com/cases/federal/appellate-courts/F2/546/910/204358/). Indeed, from the Smith Act cases to Watergate to recent election-related conspiracies, the judiciary has drawn a line between **protected political activity and illicit conspiratorial conduct** -- allowing the latter to be punished to preserve the rule of law. An originalist perspective reinforces that notion: the Founders provided tools (like the Treason Clause's overt-act requirement and later Congress the conspiracy statutes) to prevent **subversion of government by deceit or force**, but never to squelch honest political debate. Any decision to prosecute individuals for a "collusion hoax" conspiracy must also reckon with the discretionary and political ramifications. Selective justice is a valid concern -- the law must be applied equally, not as victor's justice. Ultimately, in a nation governed by laws, **no political agenda can justify a criminal conspiracy**, and those who engage in one may be held to account if the evidence permits. Conversely, prosecutors must ensure they are not perceived as wielding criminal law as a weapon to punish political enemies for routine political conduct. The memorandum's analysis suggests that, if the allegations are true, what occurred in 2016--2017 went beyond routine conduct and into the realm of actionable conspiracy: a deliberate, concerted effort to [mislead the government and abuse its powers](https://www.justice.gov/archives/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us). In sum, conspiracy laws _could_ be applied to a politically charged scenario like the Trump-Russia allegations, but success would depend on drawing the case narrowly around clear violations (fraudulent statements, evidence tampering, rights infringements) and buttressing it with solid proof of **intentional wrongdoing**. Should such a prosecution be brought, it would test the strength of our legal institutions -- demanding that a jury sift complex evidence without passion or prejudice. Yet, that is precisely what the justice system is designed for. As the Supreme Court observed long ago in _Berger v. United States_, the United States Attorney "is in a peculiar and very definite sense the servant of the law" whose interest in a prosecution "is not that it shall win a case, but that justice shall be done." A scrupulous, well-founded application of conspiracy law in this context, grounded in an original understanding of law and facts, would aim to do exactly that: to ensure that if public officials or private actors **conspired to subvert lawful processes**, they are brought to justice -- not for political revenge, but to reassert the bedrock principle that **truth and law, not lies and conspiracy, must govern our republic**.