Is Russia an “enemy”?

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?

 

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Prominent originalists oppose Trump, eviscerate the one possible argument for him

A group of well-respected constitutional originalists have signed this statement: Originalists Against Trump.  I cannot improve upon the statement.  But it is an important one.

The sole remaining argument in favor of a Trump victory is the argument that, as opposed to Hillary Clinton, he will appoint conservative constitutionalists to the Supreme Court.  That may or may not be true (I am skeptical, and my skepticism rises as I think about his potential appointees to the remainder of the federal judiciary).  But even if it is, it is inadequate.  There is no reason to believe that the Supreme Court is the focal point of American constitutionalism and the rule of law.  Rather, as the Originalists’ statement makes clear, the Court is one – but only one – component of a much deeper and richer American constitutionalism that also includes the President and the Congress.  The day-to-day governance of the Nation requires a President who cares about the answers to the constitutional questions that will confront him and his Administration regularly, questions that may never be litigated, much less reach the Supreme Court.  Even if he lacks ready answers, a president must be willing to learn what he needs to know in order to answer them – or at least reflect on them – properly.  Trump strikes me as not only ignorant about such questions, but also intolerably bored by the prospect of confronting them.  Presidents need not be legal scholars, but they ought to have an abiding respect for the constitutional structure and for constitutional rights.  If a President lacks respect for the Constitution, and fails to preserve, protect, and defend it in the daily exercise of his powers, then his promises about the Supreme Court matter very little.  We need a constitutionalist in the Oval Office as much as we need one on the Court.

Ilya Somin has a thoughtful post here at VC, linking to the Originalists Against Trump site and to another thoughtful post, this one by Conor Friedersdorf at The Atlantic.

 

 

On prosecuting political opponents

I have endeavored to avoid jumping into the fray regarding the Trump tape that surfaced last Friday.  Others have adequately said everything there is to say.  And there can be no debate among intelligent people that Trump’s comments there are worthy of condemnation in the strongest possible terms (of course, I have been doing that for over a year now, and have openly wondered why so many others are so late to the party).  And then there are the allegations that emerged last night (see Politico’s piece here).  Governor Pence has attempted to rationalize his continued place on the ticket by emphasizing the nature of Christian forgiveness and grace.   That is surely a ground for forgiving Trump’s sins; it is not, though, a ground for establishing his character and fitness for the Presidency.  That a person has done something for which they should be forgiven is not to say that the person should be elected to high office.  Moreover, someone should ask Governor Pence: wouldn’t the idea of Christian forgiveness, and of God’s grace, extend to Bill and Hillary Clinton, too?  Or are those gifts available only to Republicans?

Additionally, the “Bill Clinton Is Also A Bad Guy” strategy is both illogical and self-defeating.  I am not sure how it benefits Trump to get into a morality contest with Bill Clinton.  Moreover, those who are firmly in the Trump camp already despise the Clintons.  Trump’s goal should be not to preach to the converted, but to expand his support by reaching educated, suburban Republicans (chiefly women, but men, too) who do not yet support him but who generally are not fans of the Clintons, either.  Most likely, the people in that category voted for George H.W. Bush and Bob Dole.  So saying to these folks, “but what about Bill Clinton?!?  Don’t be a hypocrite!” gets Trump nowhere.  The response from this cohort is readily apparent: “I didn’t vote for Bill Clinton, either.”  In other words, these folks cannot be accused of hypocrisy in refusing to support Trump on the grounds that he lacks the character and decency to be President.  And they do not regard Hillary Clinton and her husband as equally culpable in this regard.

But, of course, there are many, many other reasons not to vote for Donald Trump.  Throughout the past year, I have identified two chief reasons why Trump is categorically unacceptable, especially for conservative Republicans: (1) he does not appear to know, or care, anything about the nature and scope of constitutional government in America; and (2) he does not appreciate the importance of limits, of restraint, of boundaries.  These shortcomings have been amply displayed throughout Trump’s campaign.  And the second one is clearly implicated by the Access Hollywood tape and the allegations against him that he has kissed or groped women without their consent, and invaded the dressing room of pageant contestants in a state of undress.  But both flaws were revealed on Sunday night in St. Louis, and that is where I wish to focus, because this race is not over.

In particular, Trump said that he would have his Attorney General appoint a special prosecutor to consider whether to prosecute Hillary Clinton.  It was not clear to me the grounds on which such a prosecution would be undertaken.  Trump meandered between accusations regarding the Clinton emails, the Clinton Foundation, and her interview with the FBI.  Of course, her FBI interview occurred this past July, well after her service in the federal government had ended.  So it was not clear whether he wanted to prosecute her for actions while Secretary of State, or after.  Perhaps he meant all of the above.

In any event, the major problem is one that others (see, e.g., here and here) have now readily identified.  In this country, we generally do not condone a president’s use of prosecutorial power to imprison his political opponents.   It is especially problematic when the president has used prosecuting his opponent as a line of attack during a campaign.  While it is true that federal prosecutors work for the President, and that the President has power to “take care that the laws be faithfully executed,” there is a notable tradition of keeping Presidents distant from the exercise of day-to-day prosecutorial power, particularly when the President’s political interests or personal animosities would create the appearance of using such power improperly.  To say nothing of the fact that Trump seems to be ignoring the existing federal law on how special prosecutors get selected.  There is a legal framework for doing this kind of thing, and that framework does not include presidential whim.

Still, this matter is more complicated than it has been made out to be.  Indeed, some (see., e.g., here at NR) have argued that Trump’s statement at the debate was different.  This is not, they say, a case of Clinton being prosecuted because of her status as a political opponent.  Rather, they argue, there is credible, objective evidence that she committed federal crimes that generally would warrant prosecution.  Categorically refusing to prosecute her merely because she was the Democratic nominee for President would, the argument goes, effectively place her above the law.  Trump’s suggestion does not, then, have the same “banana republic” feel that it would have if there was no evidence of Clinton’s criminality.

That is not an unreasonable line of argument.  But it has several flaws when viewed in light of Trump’s own public comments.

First, Trump complicated that argument at the debate.  When Clinton said it was good that someone with Trump’s temperament was not responsible for law enforcement, Trump interjected, “That’s because you’d be in jail.”  Trump’s childish retort therefore makes it difficult for him to argue that the whole purpose of a special prosecutor is to carefully and objectively investigate the facts and weigh the evidence, regardless of where it may lead.  His statement effectively functions as a categorical determination of her guilt.  It therefore undermines any sense of objectivity, even with a special prosecutor at the helm (federal regulations require special prosecutors to be objective and to have no conflicts of interest).  Indeed, Trump’s rallies have repeatedly been characterized by the chant “lock her up,” and that is something to which Trump explicitly agreed recently.  Passing it off as an non-serious quip (a dubious explanation) still doesn’t help.

To make matters even more complicated, Trump spoke openly about his own administration – with no mention of a special prosecutor – prosecuting Clinton well before the FBI Director publicly discussed the nature of the evidence and its own findings.  I posted about this many months ago, discussing even then the complex constitutional and legal questions that such a presidential action would involve.  The fact that Trump was pressing this matter – not just her potential criminality, but his intention to personally use the powers of the presidency against her – months before she had even been interviewed by the FBI, and before the FBI released its own decision, suggests that Trump had already formed a conclusion about her guilt.  Now, he was not the only one.  Many (far more thoughtful and intelligent) people had expressed views about her alleged criminality prior to the FBI’s recommendation and the DOJ’s decision.  But the difference is clear: there is no evidence whatsoever that Trump’s earlier statements about prosecuting her were based in any way on a careful analysis of the facts and the law.

In other words, Trump may have had a more credible basis for seeking prosecution of Clinton if he had only kept his big mouth shut.  But by constantly making public statements about his view of her guilt and condign incarceration, without any meaningful legal analysis, he has created the appearance that any subsequent investigation would be a sham, even if done by a special counsel.

I am not among those who believe that it is easy to separate politics entirely from the criminal law.  The creation and definition of crimes often involve political calculations; the chief law enforcement officer and her subordinates are political appointees, who serve at the pleasure of an elected official.  Presidents and their politically-appointed subordinates make decisions about enforcement priorities, budgets, etc.  But I would distinguish these kinds of political considerations from the exercise of prosecutorial discretion on partisan or electoral grounds.  The exercise of federal prosecutorial discretion must be objective, apolitical, and non-partisan; it must be based solely on the facts, evidence, and law; and it must carefully consider the federal and public interests in bringing a prosecution, including whether the interests of justice can be served in other ways.  I have said before that “politicization of the Justice Department” is an overused charge.  But where it is true, it is gravely dangerous to the rule of law and to constitutional government.

So Trump’s threat to investigate and prosecute Clinton may arguably be defensible on some abstract theory, but it is surely ill-advised.  The fervor of his public comments – “lock her up,” Crooked Hillary,” etc. – including those he had made earlier in the campaign, have created the appearance that any investigation and subsequent prosecution would be based in substantial part on personal animus against Clinton.  Even if there remained a good faith legal basis for a criminal prosecution, the hostility that Trump has personally shown toward Clinton, and his repeated incantations about her imprisonment, would have the effect of transforming an otherwise legitimate inquiry into an attack on the rule of law.  And it would represent yet another instance in which Trump’s pettiness, petulance, and self-absorption led him to ignore appropriate boundaries.

 

The first debate, and the vices of low expectations

Imagine the following exchanges on Monday night:

LESTER HOLT:  Secretary Clinton.  Please tell us ten specific things you would do to combat international terrorism, linking those specific proposals to a comprehensive plan for addressing the Syrian refugee crisis, which you should also link to a specific plan for addressing undocumented immigrants in America, and explain why the American people should trust you with these responsibilities given the fact that you were nearly indicted for transmitting classified national security information through a private email server and that people generally find you dishonest and unlikable.  And I will need that response in the form of a question.

[Clinton responds carefully and effectively to each point]

LESTER HOLT:  Mr. Trump, the next question is for you.  Please spell the word “dog.”

[Trump struggles at first, but ultimately spells the word correctly.  Trump is declared the winner.]

Though hyperbolic, this is the scenario that Clinton supporters, or at least those against Trump, fear: that so long as Trump can piece together a coherent sentence without using a racial epithet, he wins.  This is the low expectations game that has buoyed Trump throughout the election.  And the emerging conventional wisdom is that it benefits him enormously in the debates.  If that is true, Clinton must find a strategy that mitigates this advantage that Trump will have.

There is an interesting analogue to this.  In Season 4 of The West Wing, President Bartlet faces a re-election bid against the Republican Governor of Florida, Rob Ritchie.  Bartlet is seen as erudite, aloof, and pompous; Ritchie is viewed as unsophisticated and lacking in intellect but possessing a common touch with voters.  In “20 Hours in America,” Deputy Chief of Staff Josh Lyman and Deputy Communications Director Toby Ziegler clash over whether Bartlet’s smarts are a virtue or a vice against an opponent who, though not nearly as intelligent, appeals to the masses.  Critical of the Bartlet campaign’s efforts to make the election about their candidate’s ability to grasp the complexity of the issues, Lyman at one point says, “most people weren’t the smartest kid in the class.  Most people didn’t like the smartest kid in the class.”

In a later episode (“The Red Mass”), Press Secretary C.J. Cregg tells Toby Ziegler that she is convinced that the low expectations game heavily favors Ritchie.  She says, after being asked by others what would constitute a win for President Bartlet in the debates, “at this point, I feel like if, and only if, Ritchie accidentally lights his podium on fire does the President have a fighting chance.”  After Toby disagrees, she then elaborates:

C.J:  If the whole thing is that he can’t tie his shoelaces, and it turns out he can, then that is the ballgame.

TOBY:  And I believe he’ll have to do more than tie his shoelaces.

C.J.: Not much more.

Two episodes later (“Game On”), after the candidates have agreed to a single debate, and rather than take a softer and more collegial approach, the President demolishes Ritchie with a skilled performance that demonstrates his command of the issues and Ritchie’s lack of depth.  After the debate, in a bar up the road in California, Deputy Communications Director Sam Seaborn meets with a congressional campaign operative named Will Bailey.  Bailey says to Seaborn, referring to Bartlet, “I thought he was going to have to fall all over himself trying to be genial.”  Seaborn responds:

“So did we.  But then we were convinced by polling that he was going to be seen as arrogant no matter what performance he gave at the debate.  And then that morning at 3:10 my phone rings.  And it’s Toby Ziegler.  And he says ‘Don’t you get it?  It’s a gift, that they’re irreversibly convinced he’s arrogant, because now he can be.’  If you’re guy is seen that way, you might as well knock some bodies down with it.”

Bartlet cruises to a landslide victory in the election.

Clinton’s dilemma is not fictional and probably more complicated.  Trump is sui generis.  But there is a lesson for her in this series of episodes.  There exists a conventional wisdom that she must be careful not to come across as tutorial, or condescending; that no one really liked the smartest kid in the class.  Maybe.  But no one really liked the dumbest kid in the class, either.  They didn’t really like the class clown.  And they didn’t really like the class bully.  Clinton’s challenge is to show voters that when picking a President, it’s better to have the smartest kid in the class than the dumbest; better to have competence than clownishness; better to have an aloof cheerleader than a belligerent thug.   And she has to do it all while not coming off like Tracy Flick.

In other words, if people already see her that way, she might as well knock a few bodies down with it.

But it’s still a risk, especially at a time when facts and issues seem to matter so much less than ever before.  This has been the Attitude Election.  And for all of Trump’s shortcomings, attitude has been his asset.  It’s how he knocks down bodies.

So, there’s an irony here.  Trump wants to Make America Great Again, but his latest pitch is, “it can’t get any worse, so what do you have to lose?”  Hardly an inspiring message.  Hardly an appeal to American greatness.  But it is at least consistent with his broader message that we are a second-rate country.  He wants to Make America Great Again, but his easiest path to the presidency is to simply satisfy basement-level expectations of his abilities.  Greatness, by being mediocre.  That’s the Trump method.  And it’s working.  Will it on Monday?

What will become of Chris Christie?

Last week, before an ever-fawning media that was being played like a fiddle, Donald Trump spent several seconds repudiating the despicable Obama birther lie that he had willfully helped to perpetuate.  To exacerbate his offenses, Trump repudiated the lie in an especially grotesque manner, using the event to claim his actions as some kind of personal achievement, all while peddling hotel rooms.  But there was more.  He compounded the birther lie with another tried-and-true Trumpist falsity: blame Hillary Clinton.  He claimed that she started the lie, contrary to all existing evidence (there is no evidence that Clinton ever personally believed or trafficked in the birther lie).  And yet he was still not done.  He also claimed to have finished the birther issue, despite overwhelming digital evidence actually showing him perpetuating his birtherism after the spring of 2011, when President Obama released his long-form birth certificate (the legitimacy of which Trump has repeatedly questioned in the years since).

Trump’s weak and rather pathetic self-repudiation event was, of course, the subject of much news and commentary.  But perhaps just as grotesque as Trump’s fabrication-renunciation was the effort by his supporters this weekend to defend Trump.  It was a humiliating spectacle, and one that should have embarrassed Republicans everywhere.

One of those defending Trump was New Jersey Governor Chris Christie.  Sigh.  This man was once a force of nature.  Smart, skilled, funny, tough.  He wasn’t an ideologue, and he had the right combination of experience to be a major national figure.  Now, he’s relegated to defending Trump’s birtherism.  This once credible and serious man now spends his days playing the role of Grover Dill to Trump’s Scut Farkus.

Yesterday, Christie’s complications deepened.  During the “Bridgegate” trial in New Jersey, where federal prosecutors have charged two Christie aides with crimes related to civil rights deprivation and misuse of federal program funds, the prosecution stated that it had evidence that Christie knew of the lane closures at the George Washington Bridge.  This is a claim that Christie has repeatedly denied.  And now career federal prosecutors are prepared to counter his denial.

It is not yet clear how the Government will prove this up, or how significant that the evidence is.  If all they have is the testimony of their main witness, another former Christie associate and Port Authority official, the claim may ultimately appear thin.  This may well be a question of credibility.  Moreover, when Christie learned of the lane closures, if he did, might also matter.  Learning about it as it happened, one might argue, is different from learning about the plan before it happened and giving approval.  I am not yet persuaded that this is quite the bombshell that it appears to be.  Notably, the Feds have not as yet decided to prosecute Christie.  And it is unclear what the charges against him would include (conspiracy?  false statements under 1001, if Christie lied during his interviews with investigators?).

But let us assume that Christie is never prosecuted (and that, I think, is the likely outcome here).  Does this actually hand the Clinton campaign some ammunition?  After all, Chris Christie is the one who “prosecuted the case” against Clinton during the Republican convention, despite no formal charges ever being brought against her.  Christie’s case: a major political figure in a position of power broke the law, put lives at risk, misled people about the nature of her actions, and then avoided criminal prosecution because of who she is.  Is that not the very narrative that Clinton could run against Christie?

Governor Christie may well avoid facing any legal consequences in the Bridgegate scandal.  Indeed, perhaps he did nothing wrong and has been entirely honest with the public and with investigators.  But if the trial’s opening day is really an indication of what is to come, the scandal could create an insoluble political problem for Christie – and for those who would be pushing for Christie’s high place in a Trump Administration.

Nope, still not the Law and Order Candidate

I have seen a fair amount of commentary regarding the press conference held yesterday by Donald Trump.  During the event, he says “Russia, if you’re listening.  I hope you’re able to find the 30,000 emails that are missing.  I think you would probably be rewarded mightily by our press.”  He further states, “They probably have them.  I’d like to have them released.  It gives me no pause, if they have them, they have them.  If Russia or China or any other country has those emails, I mean, to be honest with you, I’d love to see them.”   Many, as noted in the news piece, have said that Trump’s words amounted to encouraging espionage.  Others, as Politico reports here, have even suggested treason (though a phrase I have also seen is “tantamount to treason.”  I’m not sure what that means).  Still others, such as here at C&C, have said that Trump could not have been encouraging the hacking of Clinton’s server because the hacking already occurred, the hackers already have the emails, and the server is no longer online.

I want to address this combination of claims by raising some issues that I think have gone unexplored.  I am not, to be clear, claiming that Trump committed a federal crime or that he intended to do so.  I just want to better understand the arguments here.

It is, of course, a federal crime for a foreign national, or anyone else, to commit espionage against the United States.  18 U.S.C. 793, 794.  It is also a federal crime for any person to aid, abet, counsel, command, procure, or induce the commission of a federal crime.  See 18 U.S.C. 2.  The aider and abettor is treated as a principal, meaning he or she is guilty of the target crime (here, espionage).

As to the claim that Trump was encouraging future hacking of Clinton’s email server, then it must be remembered, as the C&C post says, the server went offline long ago.  But I do not think that is the main concern.  Even if the hacking itself (under the Espionage Act, the “gathering” of the national defense information) already occurred, there remains the concern that such hacked information could still be “communicated” or “delivered” or “transmitted,” including to a foreign government.  18 U.S.C. 793, 794.  So it is not sufficient to absolve Trump of culpability simply on the ground that the server can no longer be hacked; its information can still be communicated or delivered or transmitted, and encouraging that would still be criminal.  Indeed, Trump specifically said that he wanted the emails to be released.  Also, traditionally, factual impossibility is not a defense to an attempt prosecution (but see below).

Now, some might say that Trump was being sarcastic and did not intend to encourage any crime.  A lot of ink has been spilled over the mens rea required for aiding and abetting under Section 2.  Federal courts have been inconsistent, though in a recent case, Rosemond v. United States, the Supreme Court attempted to clarify the standard, at least as to a 924(c) prosecution.  The Court said that a person is liable under Section 2 if he “(1) takes an affirmative act in furtherance of the offense, (2) with intent of facilitating the offense’s commission.”  This seems like a pure specific intent standard.  If Trump was speaking tongue-in-cheek or joking, then specific intent could not be established – but ask yourself, don’t you think he really does want the emails to be communicated or released publicly, if the hackers have them?

But even if the standard is one of specific intent, and even if it could be shown that Trump specifically intended to facilitate espionage by his encouragement, the question remains whether any encouragement must actually aid the principal actor.  At common law, the accomplice’s assistance had to actually aid the person committing the target offense, and in Rosemond, the Court said section 2 is derived from common law principles.  And yet, in Rosemond, the Court did not appear to impose that kind of reading upon section 2.  Rather, merely engaging in the prohibited act, with requisite mens rea, would appear to be sufficient even if it did not actually aid (so, unlike at common law, under this theory an attempt to counsel or encourage the principal would be enough, and some federal courts have recognized such a thing as attempted aiding and abetting under section 2).  Still, I am not confident that I have found sufficient authority stating unequivocally that attempting to encourage a crime is sufficient for section 2 liability if it does not actually encourage the commission of a crime.  Nonetheless, the question I am asking is whether he could be liable for encouragement, if the emails would be communicated or transmitted regardless of his statements.

As to treason, readers know that I have covered this ground several times before (including as recently as last week, when it was a Trump supporter who accused Hillary Clinton of treason).  To be treasonous, Trump had to intend to betray the United States.  But even if that could be shown, the Treason Clause of Article III requires giving “aid and comfort” to an “enemy.”  For the same reasons that Trump may not have violated the complicity provisions of Section 2, it could also be argued that he did not actually give any “aid” to an “enemy.”  Though it might not be our Government’s favorite place, I think there would be a serious question as to whether Russia is an “enemy,” as that term is used in the Treason Clause (though I’m open to the argument).  Again, let’s all just calm down the treason talk.

This, of course, is hardly the first time that Trump has flirted with criminality.  Nor should his statements come as any particular surprise.  But this episode shows three things worth noting.

First, Trump’s comments are ironic.  Trump (and other Republicans) have accused Hillary Clinton of being unfit for the presidency because she, they argue, violated the Espionage Act and posed a threat to our national security.  Trump, it seems, has now forfeited any credibility or legitimacy in criticizing Clinton’s alleged criminality, or her danger to our national security.  When you tell a foreign power that you “hope” they are able to find damaging information about your political opponent by hacking into her computer, and that you want that unlawfully obtained information to be released publicly, even if you are sarcastic (and I am skeptical of that explanation here), you have lost whatever credibility you may have had in claiming superiority on national security.

Second, and related, this episode further reveals that, even if Trump’s statements were not prosecutable under the Espionage Act and the complicity provisions of Section 2, he continues to demonstrate why he is not, and can never credibly be, the “Law and Order” candidate.  To continue a theme I began recently here, you cannot be the candidate of “Law and Order” if you encourage a foreign national or foreign government to hack into, deliver, and/or reveal sensitive information obtained unlawfully from computer systems of American citizens.  Your offense is aggravated if you express enthusiasm at the prospect of the foreign national or foreign government revealing unlawfully obtained information about a political opponent that could damage her.

Third, and perhaps as bothersome, Republicans have been disturbingly tepid on this episode.  Proponents of “law and order” and of protecting American national security – as Republicans claim to be – should have been aggressive and unequivocal in denouncing Trump’s comments, whether actually criminal or not – as many did after his comments about Judge Curiel.  One can only imagine the head-explosion in Republican circles if Clinton or any other Democratic candidate ever said such a thing.

As we saw in Cleveland, the unmitigated hatred of Hillary Clinton, and the bizarre and unprincipled embrace of Trumpism, is leading many Republicans down a lot of dangerous paths – paths from which they may never be able to emerge unscathed.

UPDATE:  As noted in this CNN piece, Trump has now said he was “being sarcastic.”  But sarcastic as to what?  As to the hacking, that’s one thing.  But yesterday, on the issue of the hackers revealing the emails, Trump seemed both serious and unequivocal (as was his tone during the press conference on this matter).  He also said, “to be honest with you” and indicated his desire to to see the emails.  None of his wording or behavior seemed consistent with sarcasm (one does not normally say “to be honest with you” when one is joking).  And his seeming joy at the prospect of someone releasing Clinton’s missing emails seems to belie any assertion that he does not desire that to happen.  In other words, the sarcasm excuse seems contrived, at least as to the issue of release.

Wolves as wolves, and the future of the Justice Department

One of my favorite lines from my favorite opinion of Justice Scalia’s – his dissent in Morrison v. Olson – is his observation that some cases raise issues that will affect the equilibrium of government power in ways that are not obvious.  Those threats to the separation of powers are wolves, he observes, that appear in sheep’s clothing.  “But,” Scalia stated confidently, “this wolf comes as a wolf.”

Of course, he was right.  One wonders whether the same might be said about Donald Trump.  Despite Trump’s pliable relationship with the truth, his pandering, his waffling, his refusal to answer questions about his Obama birtherism, and his seeming disdain for meaningful conversations about the substance of governing, he has not concealed his weakness on constitutionalism.  Time after time, his disregard for, or ignorance of, constitutional government has been on prominent display.  Puffy assertions by folks like Newt Gingrich that Trump is the only candidate who would protect the Constitution are so demonstrably false as to be worthy of harsh and sustained mockery.

That’s why those Republicans who prefer Trump to Clinton solely on the grounds of a potential Supreme Court appointment seem, though not unreasonable, a bit short-sighted: promising to appoint constitutionalist conservatives to the Court rings hollow if the President himself does not understand how to – nor does he care to – protect and defend the Constitution.  And while it is true that the institutions of American government are likely strong enough to withstand a Trump presidency, why would we voluntarily put our institutions to that test?  Doesn’t it say something about the intolerable danger of a candidate that we have to simply hope that the other branches of government will restrain his most dangerous tendencies?  What if we’re wrong?  It is not unreasonable to think that many in a Republican-controlled Congress would be too intimidated by Trump to defy him.  As I have said before, Trump supporters cannot credibly complain about President Obama’s alleged constitutional excesses.  And even Liberal constitutionalism is preferable to anti-constitutionalism.

So I was so pleased to read Orin Kerr’s assessment at VC, which I commend to readers, of a potential Trump Justice Department.  Those of us who worked at Justice, like myself and Kerr, and who have deep affection for the DOJ as an institution, are rightly concerned about what a Trump agenda would do to the enforcement of federal law and the federal Constitution.  And Kerr covers this ground well in his piece.

Most notably, though, Kerr concludes with the following observation about a Trump DOJ: “If you aren’t scared, you aren’t paying attention.  A fascist thug has won the GOP nomination, and now has a very good shot at becoming president of the United States.  And he hasn’t run in sheep’s clothing.  As Justice Antonin Scalia might say, this wolf comes as a wolf.