The United States is unique when it comes to governance in one spectacular way: treason is defined above the government in our Constitution. This means the definition of treason cannot be changed merely by adopting a new statute. Specifically Article III, the same article that defines the Federal judiciary, in 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.
Treason has been used to describe Trump’s recent activities with regard to Russia and her President Vladimir Putin. Obviously the President is not levying war against the United States. But did he give Russia “aid and comfort” and “adhere” to them? No.
Let me repeat that: Trump’s most recent actions are not treason under the Constitution. Treason is typically only applicable to actions committed during a time of declared war. If Congress hasn’t declared war, treason cannot apply. For reference, the Second World War was the last time the United States was in a declared state of war.
To be clear, Russia isn’t a US ally or “friendly” to the United States. But not being an ally or “friendly” doesn’t make them an enemy by default. A declared state of war by the United States against Russia or vice versa makes them our enemy. And attempting a treason prosecution against someone for providing aid and comfort to Russia would be on par with a declaration of war, or evidence of an intent by the United States to declare war against Russia.
Quoting Carlton F.W. Larson, professor of law at U.C. Davis, in an article for the Washington Post called “Five Myths about Treason“:
It is, in fact, treasonable to aid the “enemies” of the United States.
But enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war . Nations with whom we are formally at peace, such as Russia, are not enemies. (Indeed, a treason prosecution naming Russia as an enemy would be tantamount to a declaration of war.) Russia is a strategic adversary whose interests are frequently at odds with those of the United States, but for purposes of treason law it is no different than Canada or France or even the American Red Cross. The details of the alleged connections between Russia and Trump officials are therefore irrelevant to treason law.
The United States is not in an open or declared state of war with… anyone currently. While certain groups, organizations, and even States have been called “enemies”, making them actual enemies of the United States requires a declaration of war. “Enemy” is defined at 50 USC § 2204(2):
any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States
Note that an enemy combatant is not the same. An enemy combatant against the United States does not automatically make the country from which they came an enemy of the United States. Again that requires a declaration of war.
As such Russia is not an enemy of the United States. Meaning any person who provides any level of “aid or comfort” to Russia, even to the detriment of the United States, cannot be said to be committing treason. They may still be committing any other crimes against the United States, such as espionage – the Rosenbergs were convicted and executed for espionage – but it cannot be called treason.
Quoting an article by Fred Barbash for the Washington Post called “Trump ‘treason’ in Helsinki? It doesn’t hold up.“:
Problem two: There must be an enemy to aid and comfort.
While many may think of Russia as an adversary and even an enemy, it has not been declared so. An “enemy,” Harvard Law School professor Laurence Tribe said in an email to The Post, “arguably” requires a formal state of war.
“Some commentators,” Tribe writes with co-author Joshua Matz in “To End a Presidency: The Power of Impeachment,” “have argued that Russia also ranks among our ‘enemies’ ” because of its hacking to influence the 2016 election in Trump’s favor. The argument is “interesting and important,” they write, but “continued legal uncertainty about whether it is treasonous to lend ‘aid and comfort’ to Russia militates against basing an impeachment on this theory.” There are plenty of other potential crimes in the Russia investigation, they write, but probably not treason.
The simple fact we aren’t at war with Russia, and they have not declared war against the United States, means Trump’s recent actions cannot be called treason.
Treason is strictly defined in the Constitution to avoid its definition being diluted by the government – see Federalist No. 43 – as kings and dictators have been known to do. We must resist the urge to dilute its definition by casually throwing around the word. And seeing publications like the Washington Post push back against how the word has been used recently is comforting.
