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Article
“Collusion” and the Criminal Law
Santa Barbara Lawyer Magazine (2018)
  • Robert M. Sanger
Abstract
The journalistic use of the term “collusion” in the air; it might be a good time for a refresher. This article will make an effort to cover the general framework of federal crimes in which a potential target (i.e., a would be defendant if a case were filed) had a guilty mind but did not directly do the ultimate act. Looked upon from the “collusion” perspective, it is a situation where a person did something with others in which some illegal result was attempted or accomplished by some or all of the participants. Broadly construed, inchoate crimes would include attempt, conspiracy, aiding and abetting, soliciting, and accessory after the fact. There are some other theories of criminal liability that do not require the intent to do the criminal act. Criminal negligence, reckless indifference to human life, and transferred intent all involve a criminal mindset, a mens rea, which could be called a guilty mind but does not involve the intent to do the ultimate harmful act. In addition, strict liability offenses, although rare, do not require an intent to do the harmful act, but do involve assuming a role that involves control over an inherentlydangerous activity. Finally, there is a difference between a willful act and an act with knowledge, or scienter. In current politics, the word “collusion” is being used both by journalists and politicians. It is used as both an allegation and a defense. This article intends to go through the federal criminal law on horseback without making or defending any factual allegations. It should not be read as either supporting one side or the other in the various arguments about collusion or lack of collusion that are being made publicly. It is just a discussion of the law that applies to both sides.
Keywords
  • collusion,
  • conspiracy,
  • attempt,
  • aiding and abetting,
  • accessory after the fact,
  • obstruction of justice,
  • criminal law,
  • constitutional law,
  • presidency,
  • president Trump,
  • criminal liability
Publication Date
September 10, 2018
Citation Information
Robert M. Sanger. "“Collusion” and the Criminal Law" Santa Barbara Lawyer Magazine Vol. 2018 Iss. 552 (2018) p. 21 - 31
Available at: http://works.bepress.com/robert_sanger/43/
Creative Commons license
Creative Commons License
This work is licensed under a Creative Commons CC_BY-SA International License.