President Donald Trump did a very dumb thing last week when he divulged top-secret information during his meeting with Russian Foreign Minister Sergey Lavrov and Ambassador Sergey Kislyak. And while a bunch of places were calling it an impeachable offense, or even suggested treason, it turns out that treason is a hell of a lot more complicated than you think.
First of all, you pretty much have to wage war against the United States or aide its enemies during a war. Trump didn’t do any of that. Yes, according to The Washington Post, he did provide senior Russian officials information on Islamic State operations that could jeopardize a critical relationship with a U.S. partner with access to the terrorist organization.
But was the information disclosure actually against the law? And worse yet, was it treason?
The word “treason” should not be thrown around lightly. It is a very specific and archaic term, but one that’s actually defined in the U.S. Constitution under 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 Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
So it looks like a charge of treason would need a war, and, well, we are not at war with Russia. Relations are frosty, but it’s not remotely close to devolving into military conflict. And this isn’t the Cold War 2.0., either, which pretty much eliminates a major qualifier to a charge of treason. As for providing comfort or aid to the enemy, we really can’t prove Trump did that. As Vox explains, this, too, is a very difficult argument to prove:
“Aid and comfort” prosecutions are also difficult. The typical defendant is someone like American-born al-Qaeda member Adam Gadahn (the first treason indictment since World War II and its aftermath), or Nazi propagandist Robert Henry Best, or Tomoya Kawakita, a joint US-Japanese citizen who abused American prisoners of war who were forced to do labor at a mining plant he worked at in Japan.
What unites these cases is that they concern countries or organizations with which the US was at war, or at least a de facto state of war. The US is at war with al-Qaeda, as authorized by Congress, and the US had explicitly declared war against Germany and Japan in World War II. An “aid and comfort” prosecution requires that a defendant “adhere to” an enemy entity with which the US is presently at war.
As for the attainder part, here is how the ACLU breaks it down:
There is another provision in the Constitution, Article 3, Section 3, and it deals with treason. It says that “no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained.” This means in effect that whatever the “sins of the fathers,” they not be imputed to future generations. It’s embedded in our Constitution that whatever one thinks of the parents of children born within our borders, the parents’ acts cannot be held to punish their children.
Say what you will about Donald Trump’s father, Fred, but President Trump can’t be held responsible for his dad’s sins.
If we want to find real cases of treason, then, we need to go back to the last time the United States fought an honest-to-goodness declared war. The last six cases in which Americans were convicted of treason all were connected to World War II. Mildred Elizabeth Gillars was convicted of treason for broadcasting propaganda against American soldiers. Herbert Hans Haupt, a naturalized citizen who moved to America with his parents as a small child, spied against the U.S. before he was convicted of treason and executed in 1942. Thirteen Americans in total have been convicted of treason; fewer than thirty people have ever been charged with the offense.
There’s a reason why that number is so low. The legal standard is very specific and tough to prove. Let’s take Edward Snowden for instance. Did he commit treason when he leaked sensitive documents to the press? Probably not. Again, he’d have to be aiding a country with whom we are at war. And, per The Washington Post, that simply is not the case with Snowden:
For example, you have to be aiding and abetting a country or entity with whom the U.S. is actively at war. That’s why Julius and Ethel Rosenberg, when charged with passing state secrets relating to the design of the atomic bomb to the Soviet Union, couldn’t be charged with treason. “They couldn’t be charged for treason, because the Soviet Union wasn’t an enemy for the purposes of treason law, because we weren’t at war with them,” Larson explains. “So they were charged under espionage provisions, which would probably be the easier prosecution, for leaking classified documents.”
Same goes for Aldrich Ames, a former CIA officer convicted of selling secrets to the Soviets, whose actions resulted in the execution of at least 10 Soviet officials who had been working for the U.S. government, as well as Robert Hanssen, an FBI agent whose spying for the Soviets also led to at least three U.S. assets dying.
So the government would have to demonstrate that Snowden was actively trying to provide aid and comfort to a specific entity, such as al-Qaeda, with which the U.S. is at war. What’s more, all treason cases require two witnesses to the “overt act” in question. So the federal government would also need two witnesses who observed Snowden leaking the information.
So far, no witnesses have been produced.
On the other hand, Robert Hanssen, who pled guilty 15 counts of espionage on July 6, 2001, actually spied on behalf of the USSR and its successor, the Russian Federation, for more than 20 years. He delivered highly classified information to Russia during that period in exchange for diamonds and cash. Aldrich Hazen Ames, a 31-year CIA vet who had been spying for the Russians since 1985, was convicted of espionage and sentenced to life in prison.
In short, espionage is defined as spying and or using spies to acquire information, and treason is defined as betraying ones country. It’s a different thing entirely.
We also have to consider that treason law wasn’t designed for 2017. The Founding Fathers were in the throes of building a republic, fighting the British and eyeing people on their side who’d, well, turn. Today, there are no turncoats, per se. We have cyber wars, and wealthy men—it’s almost always men—who run for office or work for the government and have business ties to foreign governments. Think Michael Flynn and “foreign agent.”
And just for argument’s sake, other countries around the world look at treason differently. Take Viktor Yanukovych, the former president of Ukraine, for example. Yanukovych is currently on trial in absentia for treason. (He lives in Russia and the Kremlin refuses to extradite him.) Ukrainian prosecutors accuse Yanukovych of aiding Russia during its invasion of Ukraine in 2014.
Given that he is also accused of ordering snipers to kill his own people and there is a letter from him asking Russian President Vladimir Putin to send Russian troops to Ukraine, he is pretty much in very deep trouble. Moreover, some one hundred witnesses have been interviewed in connection to Yanukovych’s charges. It’s a pretty strong case, and it is very likely he will be convicted. Inviting a foreign army to your country pretty much means you are waging war against your own country. That’s a pretty smoky smoking gun.
Now, there are some state governments that have been accused of using the treason charge against political opposition to maintain power. In Indonesia, eleven people were arrested in December for allegedly trying to overthrow the government of President Joko Widodo, according to the New York Times. Regional analysts do not believe the suspects tried to overthrow the state.
Prabowo Subianto, a former army general who lost the 2014 presidential election to Mr. Joko, expressed doubt that there was a serious plan for a coup d’état.
“I’m sure the state apparatus have reasons, but I don’t think those people wanted to do it,” he said, referring to a government takeover. “They may have some kind of ‘romantic’ vision. But I think to charge them with treason is maybe a bit too much.”
In Zambia, Hakainde Hichilema, the main opposition leader in the country, was charged with treason last month after he allegedly endangered President Edgar Lungu’s life when his convoy supposedly tried to cut off his motorcade en route to an event to which they both were traveling; recently, a Zambian court refused to drop the charges, claiming that was the decision of a higher court to make.
Many observers believe the charges are politically motivated.
Whether it is Ukraine, Indonesia, Zambia or the U.S., treason tends to mean one party is waging a violent overthrow of the government. The accusations, like those against Yanukovych, are solid and really can be considered as someone fighting against their own country.
Social media has been abuzz with folks suggesting or outright accusing the President of treason, in part because his actions (and those around him) suggest he is cooperating with the Russians for his personal gain. Indeed, Trump does look suspicious—especially since, in the words of Garry Kasparov, one of his key associates “has more Russia connections than Aeroflot.” Though, none of this suspicion equals treason. Even James Clapper, the former director of the National Intelligence, admits that while Russia did interfere in the U.S. election, he cannot say for certain whether Trump colluded with Russian agents or not in 2016.
And, until Trump actually does do something that is treasonous, it would be best to stop loosely accusing him of it.