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Is it treason with Trump?

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Jocelyn

Jocelyn Muchlinski

Following revelation after revelation implicating President Donald Trump’s team in Russian efforts to subvert the American democratic process, there are murmurs of treason floating around bars and late-night talk shows. Is there any substance to these accusations?

“It’s funny because it’s treason.” Stephen Colbert repeats the line a few times to the delighted laughter of a studio crowd. During the time in which Donald Trump has occupied the highest office in the land, “it’s funny because it’s treason” has become something of a catchphrase on The Late Show.

Where did this start?

In July of 2016, then-presidential-candidate Trump publicly endorsed Russian hacking into Democratic National Committee servers at a news conference. “I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 emails that are missing.”

Later, in December 2016, Trump’s son-in-law Jared Kushner and then-National Security Adviser Michael Flynn met with Russian Ambassador Sergey Kislyak at Trump Tower in New York, purportedly to “establish a line of communication” between the new administration and the Russian government. This meeting remained undisclosed until March 2017. During this time, Flynn also had a series of clandestine phone calls with Kislyak, the contents of which he misrepresented to the FBI, later resulting in a federal indictment against Flynn for making false statements to the FBI and a guilty plea.

In January 2017, the Office of the Director of National Intelligence released an unclassified report confirming that Russia ordered an influence campaign intended to undermine public faith in the U.S. democratic process and to bolster Trump’s chances of winning the election. Then-FBI Director James Comey later confirmed that the FBI was investigating possible links between Russia and the Trump campaign. Trump responded to the news of this investigation by firing Comey.

It then came to light that the president’s son, Donald Trump Jr., and Trump’s campaign chairman, Paul Manafort, met with Russian lawyer Natalia Veselnitskaya during the 2016 campaign for the express purpose of receiving damning intelligence about opponent Hillary Clinton. It was a meeting former chief strategist Steven Bannon called “treasonous.” Manafort was ultimately indicted on charges including conspiracy against the United States and acting as an unregistered foreign agent. Trump’s former foreign policy adviser, George Papadopoulos, likewise felt the sting of the justice system, as he pleaded guilty to one charge of making false statements to the FBI.

This is all very alarming. But is it, as Colbert so casually alleges, treason? Let’s see.

The U.S. Constitution defines treason in Article III, Section 3, clause 1: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Treason is made a crime in 18 U.S.C. § 2381, which states: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Treason is considered the most serious offense that may be committed against the United States, rising above lesser offenses such as aiding the enemy per 10 U.S.C. § 904 and seditious conspiracy per 18 U.S.C. § 2384. There are two essential elements to the crime of treason: (1) adherence to an enemy of the United States, and (2) giving aid and comfort to same.

There must be overt acts of aid and comfort to the enemy, and these overt acts must be intentional—not just negligent or otherwise undesigned.

An overt act may be enough to constitute treason even if it is abortive or unnecessary for the success of the enemy’s plans. The overt act need not even be crime in and of itself. An American who, in time of war, traffics with known agents of an enemy state with knowledge of their hostile mission and intentionally gives them aid in executing it is guilty of treason, regardless of motive.

It is not necessary for an American to actually send arms to an enemy or openly levy war against the United States for treason to lie. The “adherence to” and “giving aid and comfort” requirements may be satisfied by merely giving helpful information to an enemy state.

The term “enemies,” however, is narrowly construed. Open hostilities—that is, full-on war—seems to be an absolute prerequisite to treason.

This is where I believe accusations of treason on the part of Trump and his posse fail. There is no denying that Russia engaged in a concerted effort to undermine America’s election process by way of server hacking, data leakage and even cooperation with the Trump campaign. But regardless, there simply is no open war between Russia and the United States. Absent open hostilities, treason cannot lie. And I doubt our president will be declaring war on Russia anytime soon.

So treason is a no-go.

But what about the federal regulation prohibiting solicitation, acceptance or receipt of contributions and donations from foreign nationals? Now that allegation may have some substance. It comes down to whether damaging information about political opponent Hillary Clinton counts as a thing of value under the letter of the law. And that’s a question for the courts.


Jocelyn Muchlinski is an attorney editor at Thomson Reuters in Eagan, Minnesota.


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