By Carlton F.W. Larson, Professor of Law, University of California, Davis, School of Law
In February, when the Michael Flynn story broke, the Washington Post asked me to write a piece on treason law for their weekly “Five Myths” feature. I pointed out, among other things, that Flynn’s connections to Russia could not amount to treason, because Article III requires that aid and comfort be provided to an “enemy” and Russia was not an enemy for purposes of American treason law.
When the Donald Trump, Jr. story broke, the Post contacted me again, seeking another analysis of treason law. I was initially hesitant to do this; although the facts were different, the legal issues were essentially the same. But I agreed to write something, and again pointed out that collaboration with Russia cannot be treason because Russia is not an “enemy.” Although treason law has many complications, this question is not even close. American law defines treason exceptionally narrowly. As a result, I argued, many offenses that are clearly betrayals of the United States are not technically treason.
For whatever reason, the second Post piece hit a nerve: hundreds of comments (which, on my dean’s advice, I have not read closely) argued that I am clearly an idiot, unaware of the nefariousness of Russian activities, and probably a traitor myself. It smells and stinks like treason – why is some law professor nitpicking about details, when the treason is laid out in e-mails for all to see (and re-tweet)?
Under Article III, treason against the United States consists only of (1) levying war against the United States, or (2) adhering to our enemies, giving them aid and comfort. “Working with foreign countries to harm the United States” is not part of the definition; in many countries it would be, but not in ours. In a separate post, I will discuss the “levying war” argument, with specific reference to cyberattacks. This post will focus on adhering to the enemy.
Let’s construct the best possible argument for treating Russia as an enemy. Assume, for the sake of argument, all of these facts (the full facts hopefully will come to light in Robert Mueller’s investigation): Russia actively interfered in the 2016 American election, both in the primaries and the general election. Russia hacked into the DNC, the DCCC, and other sites, and provided the illegally obtained information to the media and directly to the Trump campaign. Russia also propagated fake news, deliberately spreading false stories about Hillary Clinton on American social media. Finally, Russia sought to access American voting machines and might even have altered the reported vote totals in swing counties.
In so doing, moreover, Russia avowedly sought to undermine American democracy; this was an assault upon our most cherished institutions by a hostile foreign power whose primary goal is to weaken America’s standing in the world. Russia successfully installed an ignorant buffoon, possibly subject to Russian blackmail, in the Oval Office. For any American to assist Russia in this attack upon American democracy must clearly be treason. Right?
This argument has strong emotional and rhetorical appeal. If we use “treason” in a loose, rhetorical sense, it is plausible to claim that Trump, Jr., Kushner, Manafort and others committed treason by knowingly meeting with a Russian operative for the purpose of obtaining dirt on Hillary Clinton.
But the argument fails as a legal matter. The Treason Clause refers to “enemies,” not foreign nations generally. And “enemy” has been the subject of over six hundred years of consistent judicial interpretation (the phrase goes back to the English Statute of Treasons of 1351). For a foreign nation to be an enemy, we must be in a state of declared or open war with that nation. There is no declared war against Russia, so the argument would have to be that the Russian attacks against us are evidence of a state of open war.
To focus the analysis more clearly, suppose it wasn’t Russia. Suppose Belize had done all the things that Russia is alleged to have done. Could we argue that Belize has engaged in acts of war against the United States, and respond by declaring war against Belize, or at least by bombing Belize in a punitive strike? Probably. Most nations would likely condemn us for overreaction and urge sanctions as a better way to deal with the problem. But, at least in theory, one could imagine the United States government responding to foreign election meddling by engaging in military action to such an extent that the meddling foreign country could now be viewed as an enemy within the meaning of our treason law.
But—and this is the key point—we have not done so. The United States has not chosen to treat Russian meddling as an act of war. And for good reason. Imagine what an actual war with Russia would look like; that is, imagine a nuclear holocaust. We are simply not going to enter into a state of open warfare with Russia. And not because the Trump Administration might be a Russian puppet. President Hillary Clinton would not have initiated war against Russia under these circumstances, either. Some response is clearly required, but it will not take the form of open war. To all the internet commentators who insist that we are at war with Russia, trust me, if we were truly at war with Russia it would be transparently obvious to everyone.
This leads to a further problem with the treason argument. Under basic principles of due process, a person must have notice that the United States is treating a particular country as an enemy. Arguments that a particular nation should be treated as an enemy are not enough. There must be objective evidence of official United States policy. This is easy to do for the Taliban government of Afghanistan, or even non-governmental actors such as Al Qaeda or ISIS. But what facts indicate any such treatment of Russia by the United States government? In particular, what facts put Donald Trump, Jr. on notice in June 2016 that Russia was an enemy for purposes of American treason law? In the 2012 presidential debates, President Barack Obama mocked Mitt Romney for suggesting that Russia was a significant threat to the United States (in retrospect, Romney was on to something). Nothing the Obama Administration did looks like treating Russia like an enemy. Telling Vladimir Putin to “cut it out” hardly counts.
Moreover, there is no such thing as a “quasi-enemy” under American treason law. If Russia was an enemy in June 2016, it was an enemy for all purposes. That would mean that any provision of aid and comfort to Russia by any person owing allegiance to the United States was not just illegal, but treason, a capital crime. Any person advising a Russian business, any lawyer representing Russian interests, any person registered as an agent for Russia, perhaps even someone doing an interview on Russian television— all would be equally guilty of treason. The suggestion is absurd, but that is the logical consequence of accepting Russia as an enemy under our treason law.
Finally, there is an argument recently made by a Daily Kos blogger – suppose an American citizen helped plan the Pearl Harbor attack. Prior to the attack, Japan wasn’t technically an enemy, but it would seem ludicrous to say the American didn’t commit treason. By analogy, Americans who aided Russia before the election interference are in the same position.
There are two problems with this argument. First, the United States has not responded to Russian election meddling in the same way that we responded to Pearl Harbor. Second, although it is hard to believe, it may well be that an American who helped plan the Pearl Harbor attack did not commit treason, at least treason by aiding the enemy. The treatise of Michael Foster, perhaps the most influential treason treatise in early American law, considered the situation of an Englishman who persuaded a foreign country to attack England. Foster concluded:
The offence of inciting foreigners to invade the kingdom is a treason of signal enormity. In the lowest estimation of things and in all possible events, it is an attempt, on the part of the offender, to render his country the seat of blood and desolation; and yet, unless the powers so incited happen to be actually at war with us at the time of such incitement, the offence will not fall within any branch of the statute of treasons, except that of compassing the king’s death. (emphasis added)
In other words, persuading a country technically at peace with the United States to attack the United States is not an act of adhering to the enemy. Foster’s solution was to punish the persuasion as an act of compassing the king’s death, but that provision was deliberately removed from American treason law.
None of this is to say that Trump Jr.’s conduct was legal. There is a lot of space between “not treason” and “legal.” Trump Jr.’s behavior wasn’t child molestation or arson, either, but that shouldn’t give him much legal comfort. As I argued in the Post, there “is a significant gap in our legal vocabulary – we do not have a good term to describe behavior that is not technically treason but nonetheless constitutes a betrayal of the United States.” The exceptional narrowness of American treason law means that a wide range of disloyal behavior cannot be punished as treason; fortunately, it can almost always be punished as something else.
Hurling treason accusations against Donald Trump Jr. is no doubt enormously satisfying to many people. But in the context of history, such accusations should be treated with enormous caution. To sustain the argument, one has to accept that (1) treason should be expanded from the narrow definition provided in the Constitution in a manner that no United States court has ever sanctioned; (2) it is a good idea to accuse a political opponent of the capital crime of treason, with the implicit suggestion that execution may be an appropriate punishment; (3) it is an especially good idea to encourage the use of treason prosecutions, which can be initiated only by the United States Department of Justice, against political opponents at a time when the Justice Department is under the control of Jeff Sessions; (4) hundreds, if not thousands of other people, are equally guilty of treason for providing aid to Russia, because at some indefinite, unspecified point, Russia became a formal enemy under our law; and (5) American policy should effectively declare that an open state of war exists between us and another nuclear power.
Liberals should not be attracted to these arguments—they are not attractive, and they are not liberal.