The NYT posted an intriguing opinion piece by Nicholas Kristof this week, comparing the Trump-Russia controversy with the controversy over revelations that President Nixon tried to sabotage diplomatic efforts to end the Vietnam War. Kristof explores the Trump campaign’s Russia connections, conceding that no smoking gun yet exists but piling up the circumstantial evidence as he makes the case for a robust investigation. He asks, straightforwardly: “Was there treason?” He ends by quoting historian Douglas Brinkley, who recently said, “There’s a smell of treason in the air.”
Let’s concede that the matter is still wide open, and that no direct evidence of criminality or collusion has yet been made public, if it exists. But let us take the theory in its current incarnation: operatives associated with the Trump campaign, the theory goes, may have colluded with Russian operatives to obtain and disseminate information about Hillary Clinton that would weaken her candidacy and strengthen Trump’s chances of winning (or, to be more precise, strengthen Clinton’s chances of losing, which is what Russia really wanted). This may have been done on Trump’s own orders, or with his knowledge (or, at a minimum, his willful blindness). It may have even involved complicity in broader Russian efforts to affect our political system. In other words, this theory of the case goes, the Trump campaign may have colluded with agents of an adversarial foreign power to win an election and assist that foreign power in getting the result it desired.
If this theory — and it is as yet only conjecture — plays out as true, then Kristof’s question is a compelling one. Is this treason? I have written before that treason is an oft-used epithet, often describing conduct that is serious and compromises American security or values in some way, but is not — legally speaking — treasonous. Recall that Article III of the Constitution tells us that American treason consists only of levying war against the United States, or adhering to its enemies, giving them aid and comfort. Although one can argue about the ways in which modern warfare has changed, as a matter of original understanding of the Constitution, I think it unlikely that we would say this kind of collusion constitutes “levying war.” The only other option then, is what I have called “Adherence Treason,” the giving of aid and comfort to the enemy, with the intent to betray the United States.
Let’s assume, purely hypothetically, that Trump, or someone from his team, provided assistance to the Russians in their efforts to influence the presidential campaign. And let us assume that they did so with the intent to betray the United States, presumably by undermining the processes of American democracy to the benefit of a private individual (Trump) and of the Russian government, whose leadership despised Clinton and did not want Clinton to win the presidency. This leaves a critical problem if “treason” is the right description of what occurred: is Russia an enemy of the United States?
Aiding a foreign power may violate some other law, but it is not “treason” unless the aid is given with an intent to betray the United States and the foreign power is an “enemy.” My current research is exploring this problem, though I confess that when I began exploring it, I did so in the context of the Islamic State and al Qaeda, wondering whether the original understanding of “enemy” in the Treason Clause included non-state actors or those against whom no formal declaration of war has been issued. We have not formally declared war against ISIL. Indeed, we have not even debated (much less passed) a new authorization for the use of force to target ISIL (we should do that). But we have engaged in hostile action against ISIL, and it has engaged in hostile action against us. Perhaps that is enough to make ISIL an “enemy” and to prosecute for treason those with allegiance to us who give aid and comfort to ISIL.
But what about Russia? We have had a diplomatic relationship with Russia (though that relationship has recently been a frosty one, it seems) and are not engaged in military violence or other hostilities against the Russians. Yet senior American law enforcement, intelligence, and military leaders confirm that Russia is an “adversary” of the United States. Defense Secretary James Mattis made such an observation earlier this year (see here), before he joined the cabinet. Just this past week, at the House Intelligence Committee hearing during which FBI Director James Comey and NSA Director Admiral Mike Rogers testified, both men acknowledged that Russia is an adversary of the United States. The critical question for purposes of the Treason Clause, though, is whether an “adversary” is the same thing as an “enemy.”
The modern dictionary makes these two words synonyms, as does Samuel Johnson’s Dictionary of 1755 (see here). But does the Constitution? Are armed hostilities necessary to make a foreign power an “enemy”? Does the Constitution account for the modern ways in which non-violent action by a foreign power can corrupt and harm American persons and institutions? Perhaps this is an example of how the original public meaning of a word, as of 1787, can still apply to contemporary problems.
I sympathize with those wishing to further explore the Trump campaign’s relationships with the Russian government, or with private individuals working under the influence of the Russian government. I also think such an investigation should fully explore the intelligence, military, diplomatic, and criminal law consequences of any such relationships that are uncovered. Of course, maybe there is no there there. But even if there is, whether such conduct would constitute treason depends upon satisfying the constitutionally-defined elements of that offense. To make it treason, we must be prepared to identify Russia not just as an adversary, but as an “enemy,” as that term is understood not just in common parlance but in the Constitution. I suspect that many Americans and American political leaders are prepared to say this. But is the Trump Administration?