Understanding the Russia Investigation: When Does an Attempt turn into a Crime?

Special Counsel Robert Mueller’s grand jury has begun issuing subpoenas into the June 2016 meeting between the President’s son, son-in-law, second campaign manager, and lawyers from Russia. After Donald Trump Jr. disclosed a series of e-mails about the meeting, critics condemned the meeting as an attempt to commit collusion with Russia.

Although the average American will never be accused of colluding with Russia, an attempt to commit a crime is still a crime under federal and all state law. Regardless of your politics, it’s still good to know where the line between committing a crime and an innocent act is.

Missing Causation

Most crimes have three elements: intent, causation, and the criminal act itself. In order to be guilty of murder, the prosecution must prove that the defendant intended to kill the victim, took steps to kill the victim, and those efforts caused the defendant to die.  For example, Dan wanted to kill Vicky because she broke up with him, so Dan used his car to run her over, causing her death. In that situation, Dan would be guilty of murder.

However, if we removed one of the elements, it would be harder to determine whether Dan was guilty. If we remove the intent element, the murder charge would fail. If Dan hit Vicky with his car, but it was the result of Dan being careless rather than a malicious intent, then Dan would be liable for a wrongful death, but it wouldn’t a murder. Similarly, if we remove the criminal act, Dan would also be off the hook.  If Dan wanted to kill Vicky, but never takes any action, then Dan would not be guilty. Even if Vicky gets struck by someone else’s car, Dan wouldn’t be guilty (unless Dan was somehow involved in the other car hitting Vicky).

The hardest situation to evaluate is lack of causation. Suppose that Dan intended to kill Vicky and drove a car into her. However, Vicky doesn’t die because Dan hit her with a car. Instead, Vicky dies because of medical malpractice by her physician. In this case, Dan’s lawyer could argue that Dan can’t be guilty of murder because his intent and his action didn’t actually cause Vicky to die; the doctor was the one who actually killed her.

So, Dan’s not guilty of murder, right? Dan might not be guilty of murder, but every state would charge him with attempted murder. Since Dan intended to kill his ex-girlfriend and took a substantive step towards killing her, Dan would be found guilty of attempted murder, even if the actual criminal act failed to kill Vicky. Although the doctor’s malpractice was an intervening cause, it was Dan’s car that put Vicky in a position where she needed treatment in the first place.

Entrapment

In many sting operations, defendants will claim that the police entrapped them. That is, the police convinced them to commit a crime that they wouldn’t have committed had the police not been involved. For example, suppose that Dan, still mad at Vicky, seeks out an undercover police officer to form a contract to kill Vicky. After Dan pays half the money, the officer arrests Dan and doesn’t kill Vicky. Prosecutors charge Dan with attempted murder and Dan claims entrapment as his defense.

Unfortunately for Dan, he would lose if he claimed entrapment. In order for entrapment to be successful, the police must convince the defendant to commit the crime. Since it was Dan who contacted the officer first, Dan formed his intention to kill Vicky on his own. The fact that Dan fell for a sting operation doesn’t change the fact that it was Dan who initiated the crime. Entrapment would only be successful if the officer somehow convinced Dan into joining an attempted murder of Vicky.

Why do I bring up entrapment as a defense? Before Reince Priebus was terminated from his position as White House Chief of Staff, Priebus argued that the Russians the Trump Campaign meet with had ties to Fusion GPS, the organization that created the original memos linking the Trump Campaign to Russia and funded by the Jeb! Bush campaign and later by Democrats. In other words, Priebus claimed that Trump Jr. was set up by Democrats to take the meeting with the Russians.

Is There Enough to Convict?

Right now, there aren’t enough facts to determine whether the Trump campaign was entrapped. Certainly the chain of emails released by Trump’s son shows that it was the Russians who initiated contact, not the campaign. However, we don’t know if there were any e-mails, phone calls, or other contact prior to the publicly revealed e-mail chain. Only the Special Counsel would know right now if Democrats actually entrapped the Trump campaign or not.