[Update: I was interviewed on WNYC’s On the Media by Bob Garfield on this piece. Listen here.]
In the last 24 hours, I have seen people on the left and right throw the term “treason” at each other: “Flynn/Trump committed treason!” “No, the intelligence community/leakers committed treason!” Soon people will accuse each other of treason for making an accusation of treason. This is the sad repressive history of the charge of treason: the cycle of criminalizing political disagreements and criminalizing foreign policy or diplomacy we don’t like.
The Framers of the Constitution wisely defined treason — and wisely defined it narrowly — in Article III, Section 3: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” The legal consensus is that the charge of treason is only applicable during wartime, and only when one assists a wartime enemy or assists acts of war against the U.S. The Framers knew their history and learned from it. In England and throughout human history, governments used the charge of “treason” to criminalize their opponents. If you did not support a government’s policies, then you did not support the government, and you were betraying your country or giving support to the country’s rivals. The charge of “treason” has a history entangled with authoritarianism, political repression, and the abuse of criminal prosecution. In medieval England, the government had expanded the common law of treason in precisely this repressive way. Eventually, Parliament passed the Treason Act of 1351 to define the charge of treason more narrowly in order to limit its use. But in the 18th century, Parliament expanded the law of treason and created too much ambiguity and discretion in bringing treason charges, all part of a century of religious and political struggles (see the Treason Acts of 1702 and 1708).
The Framers’ lesson was, “Enough with the treason talk already.” They adopted a narrow definition and a restrictive procedure to limit the abuse of treason charges.
We may not think of Putin and Russia as allies, but we are not at war with them under any definition of the word “war.”
There are other crimes that Trump and others may have committed:
1. Did Trump conspire with Russia to steal electronic information from public or private sources during the campaign? (High crime).
2. Did Trump make quid pro quo deals with Russia on Ukraine policy? (High crime).
3. Did Trump or others lie to the FBI about Russian contacts? (Obstruction of justice, high crime).
4. Emoluments are not a felony, but Randolph, one of the Framers, said that the refusal to return an emolument was impeachable.
5. I didn’t even mention the Logan Act of 1799, which has never produced a conviction for unauthorized negotiations with foreign countries. But we have never witnessed events like this before, and we could be seeing history being made.