A convincing case could now be made that President Donald Trump has abused his power, obstructed justice, violated the Emoluments Clause of the Constitution—all impeachable offenses—and badly tarnished our national security. But he has not committed treason, and his critics should steer clear of such hyperbole, lest they play into his hands and invigorate his supporters.
The charge first took hold on Monday, after his press conference in Helsinki with Russian President Vladimir Putin, where Trump, among other outrages, sided with Putin and disputed his own intelligence agencies on whether Russia had meddled in our 2016 election. Former CIA Director John Brennan tweeted that Trump’s performance was not only impeachable and “imbecilic” but also “nothing short of treasonous”—a verdict that several commentators soon endorsed.
This is no trifling matter. By federal statute, treason is a capital crime, punishable by death. It is also the only crime that the founders chose to define in the Constitution, and they did so very carefully and very narrowly.
“Treason against the United States,” reads Article III, Section 3, “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Notice the word “only.” The founders, who had their roots in rebellion and foresaw more revolutions ahead, wanted to ensure the law wasn’t expanded to cover other lesser crimes. Notice also the words “levying war” and “enemies.” In the few treason cases tried, mostly after World War II, the courts have ruled that “enemies” implies opposing armies in wartime. Jurists have also agreed that, while Congress doesn’t have to declare war in order for acts of betrayal to be considered treasonous, there does have to be an open state of “armed conflict” between the United States and some enemy.
Under this definition, we are not at war with Russia. Therefore, no American, including Trump, can be properly accused of treason in his dealings with Russia.
Would cyberattacks, such as those that Russia launched against the U.S. election process in 2016, meet the bar? Case law here is still in its early stages, but the current consensus holds that, in order for cyberoffensive operations to be deemed acts of war, they must directly cause death or significant physical destruction. Whatever else the Russians have done, they have not done that.
Treason is such a narrowly cast crime that prosecutors have only rarely invoked it. Since 1954, there has been only one federal indictment on a charge of treason—in 2006, against Adam Gadahn, who produced videotapes supporting al-Qaida, and he was killed in Pakistan before he could be brought to trial. Even Julius and Ethel Rosenberg, tried for giving atomic secrets to the Soviets, were charged not with treason but with violating the Espionage Act.
In this framework, it would be a gigantic stretch to regard Trump’s most obsequious and damaging concessions to Putin as “treason,” except possibly in the offhand colloquial style with which ideologues denounce their foes as “fascists” or “reds.” Trump has played loose with this term, too; at one rally, he bellowed that Democratic legislators who hadn’t applauded his remarks at the State of the Union were “treasonous.” (His crowd cheered lustily.)
And here is the point. Robert Mueller’s indictments are beginning to draw a circle around associates of Trump and his campaign. Trump’s words and actions are doing increasingly tangible harm to our alliances, our standing in the world, and (as the blowback from his tariff policy kicks in) our economy. Quite apart from the false label of “treason,” Trump’s attachment to Putin, in defiance of his own national security advisers, is inescapably obvious. His lies, on these and other matters, are growing more outrageous in their magnitude and their indifference to popular reaction.
In recent days, Trump has described the unambiguously disastrous NATO summit as “an acknowledged triumph.” He has said, “So many people at the higher ends of intelligence loved my press conference performance in Helsinki”—when, in fact, his director of national intelligence, Dan Coats, issued a statement (which he pointedly noted had not been cleared by the White House) contradicting Trump’s key remarks at that session. Trump has further claimed that Putin was unhappy with the summit because “there’s never been a president as tough on Russia as I have been”—when, in fact, Russian Foreign Minister Sergey Lavrov pronounced the summit “fabulous, better than super.” On Wednesday, at the start of a Cabinet meeting, Trump said that the Russians were no longer hacking into the U.S. electoral system—despite the fact that Coats is warning that they are.
Does Trump know that he’s lying? Does he care? Does it matter? Will the Republican leaders ever protest the lies or do something about the disastrous policies about which he’s lying? Some Republicans are clearly flustered, but they fear taking action, lest he hurl a primary challenger their way.
Meanwhile, his senior advisers sit where they are, even while knowing that they are working for a dangerous man. Some may rationalize that by staying on the inside they prevent him from being more dangerous still. In some cases, this may be true; in most cases, it is not. More and more, he ignores their advice, as his self-confidence blossoms, nourished by the kind words from the likes of Putin or Kim Jong-un—and by the harsh words from his critics, whom he dismisses as “haters” who want him to go to war with Russia.
This is one reason his critics should stop dipping in the slime with words like treason. In a tweet on Wednesday, Trump taunted these critics for falling prey to “Trump Derangement Syndrome.” It’s a phrase that he and others will no doubt repeat many times in the coming days in order to discredit his opponents as hysterical. The syndrome, to the extent it exists, has, of course, been set off by Trump: His malevolence, mendacity, ignorance, and cruelty—his abject unsuitability for the office and the failure of those around him to act on this obvious fact—are all making us a bit deranged.
Still, it’s time to snap out of it. Hard facts are coming, and it’s important to recognize, highlight, and act on their significance. Things are outrageous enough without getting dragged down in Trump’s game and getting lost in empty rhetoric, like the loose, uninformed cries of “treason.”