Earlier in the week, US President Donald Trump was blasted by multiple commentators for “treasonous” behaviour, after siding with the Kremlin over his own government agencies. These are obviously very serious charges – but how closely does his behaviour meet the legal definition of ‘treason’ under US law? Let’s find out…
Treason, the act of betraying one’s country, is a serious charge. Under US law, it’s defined so narrowly and enforced so rarely that only a few dozen people have faced treason charges in the country’s history.
The Constitution sets out a definition of treason and states that presidents can be impeached for it, so in light of the US president’s recent words and actions, it’s worth taking a close look at what counts as treason in the US.
Patriot: A person who loves, supports, and defends his or her country and its interests with devotion.
Traitor: A person who commits treason by betraying his or her country.https://t.co/Keq4fhTlRB
— Dictionary.com (@Dictionarycom) July 16, 2018
Treason Requires an Enemy
In a dictionary sense, treason can mean any sort of betrayal, but if we’re talking about enforcing a law about treason, we need to look to its specific legal definition. In the US, treason is defined in the Constitution’s article III, section 3:
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.
You need a war to have an enemy, according to many legal scholars.
“Russia is not technically an enemy because we are not at war with it,” Ross Garber of Tulane Law School told Newsweek.
Carlton F. W. Larson of the University of California, Davis agrees, writing about myths about treason for The Washington Post earlier this year: “Nations with whom we are formally at peace, such as Russia, are not enemies. (Indeed, a treason prosecution naming Russia as an enemy would be tantamount to a declaration of war.)” However, he says, al-Qaeda, ISIS and North Korea (since the Korean war never formally ended) might be legally considered our enemies.
“Levying war” and “Aid and Comfort” are also high bars to clear. The Constitution’s treason definition, Larson says, was intended to be as narrow as possible so that accusations of treason couldn’t be used as a political weapon.
He writes: “Speaking against the government, undermining political opponents, supporting harmful policies or even placing the interests of another nation ahead of those of the United States are not acts of treason under the Constitution.”
But the court’s interpretation is what really matters. Other legal scholars think there’s an argument to be made that Russia is an enemy, and that Trump’s actions could be construed as aid.
Jens David Ohlin of Cornell Law School told Business Insider that it might be possible to consider the US already at war with Russia because of its cyber attacks on the US, or because they are on opposite sides of armed conflicts in Syria.
Former assistant White House counsel Andrew Wright told Business Insider that the word “traitor” is “not a term I prefer to use … It’s the kind of thing I’d like to see after more investigative processes and legal findings.”
Congress Determines What Happens Next
The punishment for treason, according to the Constitution, is up to Congress:
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Under English law, a person who committed treason could be executed, and they could be subject to attainder, a status that often meant the person would forfeit their property, civil rights, and their descendants’ rights to an inheritance. (Interrupting inheritance is the “corruption of blood” part.)
Americans convicted of treason in the past have been imprisoned or, in some cases, executed. A person can be charged with treason against the federal government, or against a particular state.
A president who commits treason could be impeached, according to article II, section 4 of the Constitution:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanours.
“High Crimes and Misdemeanours” covers a lot of ground, so a president can be impeached for all kinds of things that are not treason.
Impeachment requires charges to be brought in the House of Representatives. If a majority of the House votes to impeach, then the Senate holds proceedings that run like a trial, with the Supreme Court’s Chief Justice presiding. Two presidents, Andrew Johnson and Bill Clinton, have faced impeachment trials, but neither was convicted.