Why Paul Manafort was charged with “conspiracy against the United States”

The most eye-popping charge in Paul Manafort’s indictment isn’t as shocking as it looks.

The first of 12 charges in the 31-page indictment against Trump campaign chair Paul Manafort and his lieutenant Rick Gates has an eye-popping name: “conspiracy against the United States.”

Manafort and Gates are not charged with offenses specifically relating to work on the 2016 election. But when the Trump campaign and Manafort specifically stand accused of collaborating with a foreign government to influence an American election, conduct that has (erroneously) led to the word “treason” being thrown around quite a bit, the language of a “conspiracy against the United States” is very loaded, to say the least.

So let’s be clear: “Conspiracy against the United States” isn’t what it sounds like. It has nothing to do with foreign actors influencing an election. It certainly has nothing to do with treason, which would require the US and Russia to be actively at war with each other.

The statute, rather, is an extension of the ordinary crime of conspiracy. Basically, the charge accuses Manafort and Gates of conspiring to commit offenses against, and to defraud the US government. For them, those offenses involve false statements or misrepresentations of financial and lobbying activity.

“The statute defines separate and additional offenses if two or more people enter into an illegal agreement with the intent to engage in criminal conduct, and commit an overt act in furtherance of that agreement,” Lisa Kern Griffin, a professor of law at Duke who specializes in criminal law and criminal procedure, says.

If you and an accomplice plan a bank robbery, or a hacking attempt, or a home break-in, and take at least one concrete step toward enacting your plan, you can be charged with conspiracy. Indeed, Manafort and Gates are also charged with conspiracy to launder money.

So what separates “conspiracy against the United States” from conspiracy to commit X, Y, or Z criminal offense? Here’s what the statutory definition says:

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, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

There are two parts to the definition. One is “defrauding the United States,” which, Griffin explains, doesn’t require an underlying crime. It just requires showing the defendants conspired to “impair or obstruct the lawful function of any part of the government.”

In the indictment, the special counsel specifies that Manafort and Gates defrauded the government by “impeding, impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.”

This is a reference to their alleged money laundering (which obstructs the functioning of the IRS, a subsidiary of the Treasury), their failure to disclose foreign financial transactions (also a purview of the Treasury), and their failure to adequately disclose their lobbying under the Foreign Agents Registration Act, which is enforced by the National Security Division of the Department of Justice.

The second part of the “conspiracy against the United States” definition concerns “commit[ing] any offense against the United States.” Unlike the defrauding clause, charges relating to this part of the statute require an underlying criminal offense against the United States.

The indictment charges that Manafort and Gates ran afoul of this part of the law as well — because making false statements about lobbying for foreign governments, not filing reports about foreign bank accounts, and lying to investigators are all crimes against the United States government.

In the conspiracy against the United States count, the special counsel writes that the two conspired to “commit offenses against the United States, to wit, the violations of law charged in Counts Three through Six and Ten through Twelve.” Those counts include Failure to File Reports of Foreign Bank and Financial Accounts (counts three through six), serving as an Unregistered Agent of a Foreign Principal (count 10, namely serving the pro-Russian government of Ukraine), False and Misleading Foreign Agent Registration Act Statements (count 11), and False Statements to investigators (count 12).

There are three other counts in the indictment relating to failure to file reports of foreign bank and financial accounts, but they relate solely to Gates, not Manafort, and are thus excluded from the conspiracy against the United States charge.

“It is not uncommon when there are multiple actors engaged in criminal conduct—white collar or otherwise—for prosecutors to charge a conspiracy,” Griffin says. That appears to be what special counsel Robert Mueller and his team are doing with the conspiracy against the United States charge. But it is fundamentally a charge related to the other charges of money laundering and misleading federal officials and investigators about foreign bank accounts and lobbying for the Ukrainian government. It’s not about betraying America in some deep sense.