A lot of people are throwing around the idea that
Alternative President Donald J. Trump should be arrested and tried for treason.
Now, I’m not a lawyer, I didn’t play one on TV and I didn’t
stay at a Holiday Inn Express last night, but I have researched the law
pertaining to treason, and while I could make a fairly substantial list of
unsavory and possibly illegal things that do apply to Trump, I'm not sure that treason is one of them.
First, the dictionary defines treason generally as “the
crime of betraying one’s country….” That broad definition is what most people
believe, but our country is not governed by the dictionary. It’s governed by
the U.S. Constitution, which declares that “Treason against the United States
shall consist only in levying war against them, or in adhering to their
enemies, giving them aid and comfort.”
[Click here to read Article III, Section 3 of the
Constitution.]
According to the Free Legal Dictionary, the term aid and
comfort refers to “any act that manifests a betrayal of allegiance to the
United States … (or) has any tendency to weaken the power of the United States
to attack or resist its enemies.”
The Free Legal Dictionary also notes the following:
“The Treason Clause applies only to disloyal acts committed
during times of war. Acts of disloyalty during peacetime are not considered
treasonous under the Constitution. Nor do acts of espionage committed on behalf
of an ally constitute treason. For example, Julius and Ethel Rosenberg were
convicted of espionage in 1951 for helping the Soviet Union steal atomic
secrets from the United States during World War II. The Rosenbergs were not
tried for treason because the United States and the Soviet Union were allies
during World War II.”
That raises another question, "What is war?" Does cyberwarfare
count? Obviously computer hacking did
not exist when the Constitution was written but is an accepted threat today,
and evidence clearly shows that Russia did engage in cyberwarfare against the
U.S. during the Trump campaign.
John Shattuck, an international legal scholar and a former
senior State Department official, believes that Trump may have committed
treason in four different ways in his response to the Russian hacking of
Democratic Party emails.
In a December op-ed for The Boston Globe, Shattuck theorized
that Trump denied the cyberattack and failed to legitimize the subsequent FBI
and CIA investigations of it so he could shore up his political standing before
the Electoral College vote. He appeared to undermine the credibility of U.S.
intelligence agencies so he could intimidate them once in office, and persuade
the American public to follow his version of the truth about national security
threats. Finally, Shattuck believed that Trump might have been covering up
evidence that he and/or members of his campaign team were involved in, or had
prior knowledge of, Russian interference.
To Shattuck, all of that added up to “giving aid or comfort
to an enemy of the United States” in violation of the Treason Clause, and would
seem to suggest that cyberwarfare should be considered an act of war.
On the other hand, Carlton Larson, a law professor at the
University of California-Davis and one of the nation's leading treason law experts,
disagrees with such a broad reading of the Treason Clause.
When Donald Trump openly asked Russia to find and release
Hillary Clinton’s emails, he encouraged an illegal act by a foreign country,
and his derogatory statements concerning the U.S. intelligence community and
its investigation of the Russian hacking may have been unwise, manipulative and
not in our country’s best interest.
But according to Larson, these statements alone do not mean
that Trump was guilty of treason. For starters, Larson said, only a country or
entity that has declared war or is in a state of open war constitutes an
“enemy,” so Russia doesn’t qualify when considering the crime of treason.
Second, Larson says, aid and comfort must be something
material, not words of encouragement. "Putting the interest of another
country ahead of the United States, though a bad thing to do, is just not
adhering to an enemy," he said.
We have the freedom to get away with a lot in this country,
which is why so few people have been charged with treason during our history,
and why I couldn’t find a single case of treason being brought during times of
peace. The First Amendment’s free speech guarantee means that Americans can go
so far as to advocate the violent overthrow of the government … as long their
spoken words don’t incite someone to actually try to do it.
Bottom line: There’s a lot of funny stuff going on in Washington
right now, not the least of which are Trump’s business conflicts of interest,
his disregard for ethics, his blatant ignorance of the Constitution and his possible
collusion with the Russians to influence the election – some or all of which
may someday lead to his impeachment – but don’t look for treason charges to be
leveled any time soon.
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