John Shattuck, who as a lawyer ought to know better, says that Donald Trump’s actions with respect to Russia “raise the specter of treason.”

Now, I bow to no man in my hatred and contempt for Orange Julius Caesar, and I fully support Shattuck’s demand for an investigation of foreign interference and other misconduct in the course of the election just completed, but using the word “treason” is simply wrong, for reasons I’ve given before. And its wrongness matters, not just because hyperbole always weakens argument, but because the carefully restricted definition of the crime of  treason is essential to protecting free speech and the freedom of association.

Even assuming that:

  • Trump willingly accepted, and even asked for, Russian help to get elected (which I’d rate very likely);
  • Offered specific policy concessions in return for that help (less likely, though there might be an implicit bargain); and
  • Knew that those concessions were damaging to the national interest (still less likely, and in any case impossible to prove;

he still did not commit the crime of treason, simply because the United States is not at war with Russia.

Treason is the one crime defined in the Constitution; it consists in “waging war on the United States, or adhering to their enemies, giving them aid and comfort,” and it must be proven either by confession in open court or by an overt act testified to by two witnesses. An “enemy” in this context is a nation (or other entity) with which the United States is at war; that is clear both from the fact that “adhering to their enemies” is an alternative to “making war on the United States” and by the definition of “enemy” in international law. As the Declaration of Independence says, the United States regards other nations as “enemies in war, in peace friends.” A Nazi or Japanese sympathizer in 1940, even one taking German or Japanese money to betray American national interests, was not, by this definition, a “traitor.”  Therefore, no matter how disloyally Trump has acted, he has not acted traitorously.

Why insist so strongly on what might seem a pedantic legal distinction?

Because the Framers knew what they were doing. “Treason” had been used in English politics as a catch-all charge against the losers in various political struggles. Worldwide, treason charges are among the most powerful tools of tyranny, precisely because the ordinary-language concept is so vague.

If “enemy” simply means a country whose government makes efforts to damage U.S. national interests, then whether someone is a “traitor” becomes a mere question of opinion (or, as Talleyrand said, “just a matter of dates”). Anyone working in tandem with a foreign government might find himself charged with treason. The absolute rock-bottom principle of criminal law in a free society has to be that it’s possible to know whether one is or is not breaking the law, and that it’s not possible to become a criminal retrospectively when Oceania goes to war with Eastasia. The Reagan Administration waged an illegal and semi-covert war against the Sandinista regime in Nicaragua; that doesn’t make Americans who tried to stop that war, and who did things to help the Sandinistas, guilty of treason. “Cold War” was a metaphor, not a type of “war” for Constitutional purposes.

Of course, the “declaration of war” by Congress has now been rendered somewhat obsolete by changes in international practice. Even absent such a declaration, we’re clearly “at war” with a country or other entity with whose forces our forces are currently exchanging gunfire. Al-Qaeda, the Taliban, and ISIS are currently our “enemies.” But Saudi Arabia, despite what I am convinced was the direct involvement of senior officials and even members of the royal family in planning and financing the 9/11 attacks and other terrorist attacks, is not our “enemy” in that sense. And neither is Russia.

This principle will be even more important with Trump as President. Do you really want him to be able to announce that we’re “at war” with “Islamic terrorism” and start charging people with treason for building mosques? No, I didn’t think so.

So: repeat after me: Paul Manafort, whose firm helped pay for riots in Ukraine in which U.S. Marines were attacked, is disloyal. Donald Trump may well be subjectively disloyal, and very likely has acted disloyally. But they are not “traitors.” 

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.