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?



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.

Could the peddlers of the “treason” charge please read the Constitution?

I have been trying desperately to avoid commenting on the Republican Convention.  The Convention, while certainly having its interesting moments, has demonstrated how a once great political organization – an organization of statesmen, of character, and of the Constitution – can come undone when raw emotion overwhelms reason and prudence.  Too many (though not all) in the Party have allowed the gathering to devolve into a display of disgusting and belligerent rhetoric, ignorant slurs, and political thuggery.  It’s not just demeaning to their political opponents; it’s demeaning to Republicans.  Just ask Ted Cruz.

So I have avoided posting about the details of the last three days.  But today brought a story within my wheelhouse that I felt compelled to mention.  Consistent with the entire tone of Trump’s new Republican Party of late – that it is not enough to disagree with Hillary Clinton, or even to vote for someone else, but that her opponents must actually spit upon her face every chance they get – one of Trump’s advisors, a veteran, suggested that Clinton be executed for treason by a firing squad.  Really.  Time has the story here.  The Secret Service is apparently investigating.

Normally, I would not comment on this.  But I’m working on a treason project now and so I’m giving attention to this stuff.  And a veteran should know better.  Set aside the outrageous idea of suggesting the official killing of a political opponent.  On the legal side, the suggestion repeats a rhetorical theme that I find troubling.  Folks bent on this kind of rhetoric tend to throw around the word “treason,” either because they do not know what treason is, or because the intend to use it as an epithet rather than a serious legal claim.  But accusing a person of treason, of disloyalty to their country, is a serious charge.  For treason is an actual crime, defined by the Constitution and by a federal statute.  See 18 U.S.C. 2381.

The Constitution is clear that its definition of treason against the United States is the only one: it requires levying war against the United States, or adhering to their enemies, giving them aid and comfort.  It is beyond clear that Clinton’s conduct with respect to the tragedy in Benghazi comes nowhere close to the constitutional definition.  In addition, what I call “Adherence Treason” requires proof of intent to betray the United States.  Whatever mistakes Clinton made with respect to Benghazi, it is ridiculous to suggest that she made those mistakes with an intent to aid the enemy (and which “enemy” would she have aided, anyway?).  And I have seen no evidence for it.  See a prior post on these matters here.

Contrary to an apparent belief on the part of this advisor, and perhaps others, the Uniform Code of Military Justice does not define treason (it does define “aiding the enemy,” which contains elements different from treason and lacks the proof requirements).  And even if it did, it could not define treason in a way that conflicts with Article III of the Constitution, just as section 2381 does not.  As I have said in a previous post, there is strong legal authority for the proposition that treason cannot be alleged in a court-martial, but rather can only be alleged in a civilian court.  Moreover, death is not an automatic punishment for treason (nor is it for aiding the enemy).  The Constitution gives Congress the power to “declare” the punishment for treason, and Congress has determined that, although the death penalty is available, there is no minimum punishment.

I understand that this advisor served this country with distinction, for which we should be grateful.  But upon and during his service, he swore to protect the Constitution.  It is perhaps time for him to read it, and give special attention to Article III.


American terrorism prosecutions in the news

In the midst of pettiness and petulance of American politics, the attacks in Belgium this morning remind us once again of the challenges the world faces, challenges that require serious and sober leadership, rather than entertainment.  As I have said in the past, though the military and intelligence components may be the most prominent of all components in the war against terrorism, the law enforcement and prosecutorial communities also have a vital role.  That is particularly true with respect to early detection and prevention.  With that in mind, I continue my research on the existing statutes criminalizing material support for terrorism, and their relationship to American treason.  There are a couple of variations on this subject matter that are drawing my interest at the moment: one relates to who can be an “enemy” for purposes of the Treason Clause; a second relates to the recruitment of, and actions taken by, juveniles with respect to terrorism.

In conducting my research lately I was struck by something: in a span of three days (from March 16 to March 18), the Justice Department announced major action in no fewer than five terrorism cases.  On Friday the 18th, Joseph Hassan Farrokh of Virginia pleaded guilty to a material support conspiracy that involved travel to Syria to fight for ISIL.  On Thursday, Aws Mohammed Younis Al-Jayab of California was indicted for attempting to provide material support overseas, based on allegations that he communicated on social media that he traveled to Syria to fight alongside terror organizations.   Also on Thursday, Abdul Malik Abdul Kareem of Arizona was convicted of various federal crimes, including conspiring to provide material support to ISIL, based on his helping to plan with two other men the May 2015 attack on a “Muhammed Art Exhibit” in Garland, Texas.  Also on Thursday, Mufid Elfgeeh of New York received a 270 month sentence for recruiting two men to join and fight for ISIL (the two men turned out to be FBI cooperators).  And on Wednesday, Amir Said Rahman Al-Ghazi (aka Robert McCollum) of Ohio pleaded guilty to attempting to provide material support by trying to persuade others to join ISIL and by expressing his desire to launch a domestic attack.

From what I can tell based on the DOJ’s press releases, this was the busiest single period of such announcements since December 2015, in which, during a period of 9 days, the DOJ announced major action in 10 cases (six of them were within 4 days of one another between December 14 and 17).

Now, a caveat is in order.  These are only the press releases from Main Justice.  I have not yet scoured the press releases from every United States Attorney’s Office.  And there can be a lot of different reasons for the timing of these various actions that have nothing to do with one another.  And, of course, these press releases surely do not reflect all of the work in every terrorism prosecution – the public will not see much of the work currently happening in these investigations and prosecutions.  But the Main Justice news section is at least a reliable source for major developments in terrorism cases – indictments, convictions, guilty pleas, and sentencing.  And last week, based on the objective factors I have examined, was a busy week for news of such developments.

It should be reassuring to Americans, after Belgium especially, to see specific examples of the federal law enforcement effort with respect to detecting potential domestic attacks and preventing and punishing foreign fighter travel.  Clearly, though, this work is far from over.


Ted Cruz on treason

Senator Ted Cruz is an excellent lawyer with a mature understanding of the Constitution.  But he is wrong on treason.

At Thursday night’s presidential debate in Detroit, Senator Cruz reiterated a point he has made earlier: that Edward Snowden likely committed, and should be prosecuted for, treason.  That is because, he said, the Constitution defines treason as giving aid and comfort to the enemy.  And that, Cruz claims, is what Snowden did.

Close, but incomplete.  Article III actually says that treason consists of “adhering to [American] enemies, giving them aid and comfort.”  Cruz’s exclusion of the word “adhering” is significant.  That is the language that helps to supply the relevant mens rea of treason, which is an intent to betray the United States.  The Supreme Court recognized this many years ago in Cramer v.  United States.

As I have said and written (here), I have not seen evidence sufficient to prove beyond a reasonable doubt that Snowden adhered to the enemy (or, that he intended to betray the Nation).  There certainly is evidence that he has aided an American enemy, but contrary to Cruz’s statement, that aid must be accompanied by adherence to an enemy and the intent to betray.  In other words, even if he did something that aided ISIS or al Qaeda (as seems likely), I have not seen evidence that he was adhering to them.

Some have speculated (Donald Trump said this last night) that Snowden was a spy.  But for whom? Russia?  China?  First, espionage and treason are not the same.  Second, even if we assume that Snowden was a spy and that he meant to adhere to the country for whom he is spying, in order to be guilty of treason that country would have to be an “enemy.”  To my knowledge, neither China nor Russia would be considered “enemies” for purposes of the Treason Clause.  We have our issues with them, but would we say they are our “enemies”?  I would agree that we need some better research and analysis on who is an “enemy” (I’m working on it), but I have seen no evidence that Snowden adhered to, or was working on behalf of, any nation or group that would fit any sensible constitutional definition of “enemy.”

To be clear, I favor prosecuting Snowden for whatever crimes he has committed.  And I favor breathing new life into American treason law, most particularly with respect to those who have joined, fought for, or supported certain terror groups.  See my previous post here.  But I am not yet persuaded that Snowden’s case is the right vehicle for doing so.  If Senator Cruz and others are committed to reviving treason prosecutions, I would start by looking at the citizens who have become fighters for – or otherwise are adherents and aiders of – ISIS or al Qaeda, for whom the Government’s existing strategy is to use the material support statutes.


Federal charges in connection with San Bernardino attack

The Government has filed a criminal complaint against Enrique Marquez, detailing charges that allege Marquez’s role in plotting to commit multiple terror attacks on American soil, as well as his connections to Syed Farook, one of the San Bernardino killers.  The complaint (there is not yet an indictment) identifies three distinct federal criminal laws that Marquez allegedly violated: conspiracy to provide material support for terrorism, making a false statement in the purchase of a firearm (a straw purchase), and defrauding immigration authorities.  The Government does not allege that Marquez participated in, or knew in advance about, the San Bernardino attack.

The Justice Department’s press release is here.  The complaint is here.

According to DOJ, forensic tests show that two of the rifles that Marquez allegedly purchased for Farook were used in the San Bernardino attack.

First, I have said for some time that Congress needs to give serious consideration to a strong federal straw purchaser statute that explicitly makes it a crime to purchase a firearm for another person.  The existing statutory scheme, 18 U.S.C. 922(a)(6) and 924(a)(1)(A), is called a “straw purchaser” scheme, but really it is a false statement scheme.  The Government has to prove that the purchaser knowingly lied when completing the required paperwork, by holding himself out as the actual purchaser when, in fact, the purchase was for someone else.   The Supreme Court held last year in Abramski v. United States that the statute applies regardless of whether the actual buyer – the person for whom the straw purchase is made – is legally eligible to possess a gun (though that is a debatable holding, in light of the way the statute is written, which is among the reasons why I think a new statute is needed, despite Abramski).

The proposal for a new and explicit straw purchaser law has bipartisan support in Congress, even among strong supporters of Second Amendment rights (e.g., even Ted Cruz sponsored his own straw purchaser legislation).  And there is a connection between straw purchasing and background checks.  The Marquez charges are a reminder of the need to address this problem in federal gun law, despite the fact that the existing statutory scheme was adequate in this particular case.

Second, could DOJ charge Marquez with treason?  Marquez and Farook never acted on their original plan, so Marquez did not wage war against the United States.  Alternatively, if the allegations are true, he certainly gave aid and comfort to Farook, but was Farook an “enemy” in 2011 and 2012?  It appears as though Farook expressed an interest in joining AQAP, but it is not clear that he did.  This may be one of those cases in which treason would be a stretch, and where the material support statute might be the better fit.  Under the material support statute, the act that the person is supporting need not be committed by an “enemy;” it need only be one of the listed terrorism offenses.



Bergdahl to face court-martial, but not for treason

As described in this CNN story, Army Sgt. Bowe Bergdahl will now face a court-martial on two charges: “desertion with intent to shirk important or hazardous duty,” and “misbehavior before the enemy.”  Please note that Bergdahl has not been charged with treason.  You may see news reports or commentary out there saying that Bergdahl faces treason charges.  That is false.

I am not a military law expert, but my understanding is that treason charges cannot be brought in a court-martial.  Treason is an offense that probably can only be prosecuted in the civilian judicial system.  The Uniform Code of Military Justice certainly contains offenses that are very similar to treason (such as Article 104, “aiding the enemy”).  But treason is defined only by Article III of the Constitution and 18 U.S.C. 2381 – indeed, treason’s place in Article III is arguably textual evidence that the Framers of the Constitution intended it to apply only in civilian, Article III courts.  And it is not among the offenses listed in subchapter X of the UCMJ, nor is it cognizable under the UCMJ’s Article 134 (because treason is a capital offense).

If others have better information about this, let me know.  My work on treason would certainly benefit.  But for now, even if Bergdahl’s conduct would constitute treason (and that is debatable), I believe the best authority out there says that treason is not cognizable in a court-martial.