The revelation that Donald Trump Jr. was offered incriminating information about Hillary Clinton as “part of Russia and its government's support for Mr. Trump,” and that Junior enthusiastically accepted and pursued the offer, is shocking. What Trump Jr. did could very well be a crime under federal campaign finance law.
But some politicians and commentators are raising the possibility that he committed an even graver offense: treason. “We're now beyond obstruction of justice,” US Sen. and former Democratic vice presidential nominee Tim Kaine said. “This is moving into perjury, false statements, and even into potentially treason.” Richard Painter, President George W. Bush’s White House ethics lawyer, declared on MSNBC that Trump Jr.'s behavior "borders on treason" even before the worst revelations about the incidents came out. Rep. Seth Moulton (D-MA) commented, “If this isn’t treasonous, I’m not sure what is.” According to Merriam-Webster, searches for the definition of “treason” are on the upswing.
This is nonsense. Whatever Trump Jr. did, it’s definitely not treason. Treason is a very specific crime with a definition set forth in the Constitution that Trump Jr’s conduct doesn’t come close to meeting, for one simple reason: The US is not at war with Russia.
The US has to be at war with a country for helping that country to be treason
Article 3, Section 3 of the Constitution lays out the definition of treason used in US criminal prosecutions: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
I looked into this issue a few years ago when Edward Snowden faced accusations of treason for disclosing highly classified NSA surveillance programs. UC Davis law professor Carlton Larson told me then that there are two broad categories of treason charges: “aid and comfort” prosecutions, and “levying War” prosecutions.
The latter is rare, and typically involves someone who’s literally using an army to fight the government of the US or one of the 50 states. John Brown was convicted and hanged for treason against the commonwealth of Virginia in 1859 following his ill-fated attempt to launch a slave rebellion at Harpers Ferry. Former Vice President Aaron Burr was prosecuted unsuccessfully in 1807 on charges that he conspired to levy war against the United States and create an independent country in the center of North America, combining what are now some Western states with Mexican land.
Obviously, Trump Jr. did not actively conspire to wage a literal war with armies and troops and stuff against the United States. I mean, with the flood of damning leaks about the Trump administration occurring on a daily basis, I’m nervous about ruling anything out at this point, but it seems pretty unlikely.
“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.
And the US is not at war with Russia. Not even close. Indeed, when Julius and Ethel Rosenberg were prosecuted for sharing atomic secrets with the Soviet Union, they were not charged with treason. The US may have been in a Cold War with the USSR at that point in time, but it was not in a literal war, and in lieu of a state of war, the Rosenbergs couldn’t be accused of that specific crime.
That has nothing to do with the question of their guilt (which, in the case of Julius, even the couples’ children now acknowledge). Indeed, other, uncontroversially guilty spies for the USSR/Russia, like Aldrich Ames at the CIA and Robert Hanssen at the FBI, were charged with espionage but not treason, for the same reasons. The meaning of “treason” excludes aid and comfort offered to a foreign country that’s a mere geopolitical rival but not an enemy in an actual war. A country, in other words, like Russia.
What Trump Jr. did was outrageous. But that doesn’t make it treason, and it’s irresponsible to keep throwing the term around willy-nilly.