The first time that Donald Trump argued about collusion, it was to claim that his political opponents were doing it. Then, it was to argue that he had not done it. Now his attorney is arguing that it’s not even a crime.
But legal experts say that the entire discussion around collusion has been beside the point.
“It’s not whether it’s the crime of collusion it’s whether they engaged in the act of collusion in furtherance of actual criminal behavior,” said Bradley Moss, an attorney in Washington D.C. who specializes in national security issues.
Peter Zeidenberg, who was deputy special counsel in the Scooter Libby case and worked with Special Counsel Robert Mueller at the Justice Department, explained that while the legal code doesn’t strictly define collusion, that doesn’t mean acts of collusion are not criminal.
“Literally that’s true: there is no crime of collusion. But I don’t know how you collude with Russia without conspiring to do so and I think it’s pretty clear that Mueller believes conspiracy with those working to interfere with the election is a crime. It’s a crime of conspiracy to commit an offense against the United States,” said Zeidenberg. “What [Giuliani’s] saying is you can collude but there’s not a crime and I think that’s not really true. I think they’re constantly trying to move the goalpost.”
Trump has used the ambiguity around the term collusion to defend himself as part of a broader campaign to muddy the waters around investigations into any ties his campaign had with Russians who were meddling in the 2016 election. With his former campaign head, Paul Manafort, facing a trial this week on bank fraud and tax charges stemming from special counsel Robert Mueller’s investigation, Trump has stepped up his attacks on the probe.
In the past, Trump has used the ambiguity around “collusion” to attack his opponents.
During the Republican presidential primary in 2016, he tweeted that his rivals Texas Sen. Ted Cruz and Ohio Gov. John Kasich had to “to team up (collusion) in a two on one” because they couldn’t beat him on their own, implying something nefarious about a common political tactic in a three-way race.
Later, he accused Democratic nominee Hillary Clinton of “collusion,” “cover ups” and “bribery” in an attack that fact-checkers found “false” and “over the top,” and argued without evidence that she “colluded” with the FBI to get an investigation into her private email server shut down.
But when federal investigators began looking into Russian meddling in the 2016 election, including any role his campaign might have played, Trump first argued that there was no evidence of collusion, then (falsely) that the evidence proved there was no collusion and, finally, without evidence, that the real collusion was with the Clinton campaign.
Since March of 2017, Trump has tweeted that there was “no collusion” at least 90 times, including twice on Sunday, when he argued that “there is no Collusion” and also — again, without evidence — that the “real Russian Collusion on the Democrats side.”
But on Monday, Trump’s personal attorney, former New York City mayor Rudy Giuliani, argued that collusion is actually not against the law.
“I’ve been sitting here looking at the federal code trying to find collusion as a crime,” Giuliani told “Fox and Friends.” “Collusion is not a crime.” And on CNN’s “New Day,” he said, “I don’t even know if that’s a crime, colluding about Russians.”
“I’ve been saying that from the very beginning … it’s a very, very familiar lawyers’ argument that the alternative, my client didn’t do it and even if he did it, it’s not a crime,” Giuliani said later in the day on Fox News.
Trump weighed in on Twitter Tuesday morning with a similar argument, saying that collusion isn’t a crime, and also noting (without evidence) that “there was No Collusion (except by Crooked Hillary and the Democrats)!” But Trump wasn’t only backing up Giuliani; his tweet echoes arguments he has made in the past against collusion.
In an interview with the New York Times in December, Trump cited a legal expert he’d seen on cable news defending him. “There is no collusion, and even if there was, it’s not a crime,” he said.
Renato Mariotti, a former federal prosecutor who ran for attorney general as a Democrat in Illinois, said the shift from “no collusion” to “collusion is not a crime” was telling.
“Instead of saying ‘no collusion,’ well now they’re saying there is no such thing as collusion, which suggests they think there is evidence out there that makes it hard for them to deny there is collusion,” he said. “And so they switched gears which is an interesting shift in strategy.”
Correction, July 30th, 2018:
The original version of this story misstated the status of Renato Mariotti’s candidacy for Attorney General of Illinois. He is no longer a candidate; he lost the state’s primary in March.
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Write to Alana Abramson at Alana.Abramson@time.com