In recent weeks, President Trump has continued his troubling practice of accusing folks of treason, clearly not having read the Constitution’s careful definition of treason nor any other authorities that would provide him with even an elementary understanding of American treason law.
In responding to a question last week, the President named several folks from the FBI who were involved in the initial investigation into his campaign, and said their conduct was “treason.” (WaPo story here). Two weeks ago, he Tweeted that his campaign was “conclusively spied on . . . TREASON means long jail sentences, and this was TREASON.” (see here). Add these to a long list of treason accusations from this President (see this earlier piece), who seems to conflate disloyalty to him personally with the forms of national disloyalty that are actually treasonous.
Of course, none of these situations that were the subject of the President’s ire actually implicate the law of American treason. Those who conducted the investigation into the Trump campaign, for example, did not “levy war” against the United States, as that phrase has been long understood, nor did they “adhere” to an American enemy, giving that enemy aid and comfort. Indeed, if the President believes that this was a species of Adherence Treason, then who, exactly, was the enemy that these public servants were aiding? Alternatively, if he believes that their attempted “coup” (it was not that, of course) was tantamount to levying war (it wasn’t that, either), how could they possibly have been levying war against the United States? Trump was, after all, a private citizen at the time. And a presidential candidate’s campaign is not “the United States.”
The President’s suggestions on this matter are so inane that they cannot, and should not, be taken seriously. Fortunately, many commentators have reached this very conclusion and said so publicly (see, e.g., here, and here and here), though I suspect the President will not hear any of us.
In a current research project, I amplify the concerns of some of these commentators and tackle the loose rhetoric of treason (by many, across the political spectrum, over recent years — I have covered this ground here before). But I give particular attention to the dangers of such rhetoric when it comes from a President. The President sits atop the American military command structure, oversees the work of federal law enforcement agents and prosecutors, and “takes care” that the laws are “faithfully executed.” When a sitting President publicly accuses someone of a crime — particularly when that crime is of the most serious variety, defined by the Constitution, and punishable by death — the use of this language takes on special meaning and force. And it can be especially dangerous and irresponsible.
Now, Attorney General Bill Barr has given an interview to Jan Crawford of CBS News, in which he is asked about the President’s suggestions that investigators on the Russian interference probe committed treason. Somewhat remarkably, the Attorney General’s response was, “not as a legal matter.”
Okay. But also: yikes. Of course, he is right that none of this was treason “as a legal matter.” But, what other kind of “matter” is there when it comes to treason? Is there some other way of understanding treason that would justify the President’s statements? Attorney General Barr seems to be implying that there is some extra-legal, political, or cultural construct for treason that one might plausibly use, though it be divorced from the law of treason. Of course, it is comforting that he did not share the President’s view of treason. But I fear that his suggestion here has, even if unintentionally, left open a justification for lobbing treason accusations unbounded by law.
Treason is, by definition, a legal matter. So critical was a proper — and narrow — understanding of treason that the Framers refused to leave it to mere legislation; they constitutionalized it. They rejected the broader definitions of treason that marked English law under the Statute of 25 Edward III. They took great care to craft a sufficiently restrictive law of treason, one that could not be used to suppress mere political dissent or to oppress one’s political opponents. Moreover, when we state affirmatively that someone committed murder, or rape, or bank robbery, we necessarily use those terms as a legal matter, in the sense that we are alleging conduct that is previously defined by law and carries some legal consequence. I suspect that if the President accused a specific person of rape or murder, we would expect a good faith basis for that assertion, one in which underlying facts are specifically applied to the elements of the offense. We should expect no less when it comes to treason.
I worry, then, that the President’s rhetoric has further contributed to a popular belief that labeling someone as guilty of treason is an acceptable political epithet, one that can be used casually — and for political advantage — without any reference to its legal understanding, history, or background. This rhetoric has invaded national security politics, and has the potential to undermine the seriousness with which Americans should take treason. For this reason, Barr should simply have said to Crawford, “no, there was not treason,” and left it at that. Saying there was not treason “as a legal matter” is accurate, but also sounds just equivocal enough to invite confusion, and mischief.