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Law & the Courts

It’s Not Treason, but It’s Not Defensible, Either

One of the rules you should try to follow, if you talk or write about politics, is to apply the same basic standards and rules for longer than just whatever gets you through the current news cycle. That’s true of what you think is right and wrong and scandalous, and it’s doubly true of what’s legal and illegal. The rule of law exists so that we know what rules apply to our friends and political foes alike. When it comes to yesterday’s big bombshell story, too many Trump defenders are forgetting to apply that to the question of what’s right and wrong, and too many Trump critics are forgetting to apply it to the law by throwing around words like “treason.”

To recap, yesterday, Donald Trump Jr. released on Twitter an email chain leading up to his June 2016 meeting with a Russian lawyer connected to the Kremlin, apparently in the hopes of obtaining some dirt on Hillary Clinton. Specifically, British music publicist Rob Goldstone promised Don Jr. that he’d been told by a friend, Russian pop musician Emin Aglarov, that “the Crown prosecutor of Russia” (there is no such thing) could “provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father” and that this was “very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.” Goldstone also offered to “send this info to your father” through an intermediary. Don Jr. responded that “perhaps I just speak to Emin first,” but “if it’s what you say I love it especially later in the summer.” Eventually Don Jr. met with a woman described in the email as “The Russian government attorney,” Natalia Veselnitskaya, who was actually not a government official, but well-connected in Kremlin circles. According to the various participants (who disagree on what happened at the meeting), he never got anything useful, and got derailed to a discussion about Russian adoption. Regardless of who’s telling the truth, no “information that would incriminate Hillary and her dealings with Russia” was ever published during the campaign, and indeed, the bulk of the leaked emails from the DNC and John Podesta that came out during the campaign had already been obtained; many had already been released.

Don Jr. was wrong to take that meeting, full stop. It is a real scandal that he did so, period. No amount of comparison to other misconduct by anybody else mitigates that, no amount of amateurism on his part excuses it (if anything, this illustrates the problem with having a presidential campaign full of people of low character and no political experience). Conservatives defending Don Jr., or Paul Manafort, or Jared Kushner (both of whom were told about the meeting and forwarded the email chain at the time) should be embarrassed. The fact that this looks like as much a Russian sting on Don Jr. as a legitimate attempt to help him shouldn’t change our view that the whole affair illustrates why Putin’s regime is malicious and a malignant influence on the politics of the U.S. and other democratic nations. And for Republicans, it should be a reminder of why the party’s prior two presidential nominees, John McCain and Mitt Romney, took a hard line on Putin, as did most of the Congressional GOP until Trump became the party’s standard-bearer. 

A couple of defenses have been offered. One is that anybody would have been interested in receiving incriminating evidence about their campaign opponent, and accepting opposition research from all sorts of shady sources is what campaigns do all the time. This is half true: I don’t blame Don Jr. for being intrigued by the offer. But anybody with half a brain and half a conscience would have realized, before sitting down to meet a source connected to the Russian government on behalf of a presidential campaign, that there was something very wrong with this picture. Maybe his inexperience in politics (unlike Manafort’s) made him cynically think that this is how it’s usually done, but he should have had at least enough skepticism to ask somebody who knows what campaigns do. And yes, it’s true that Politico reported in January that the Hillary campaign and the DNC worked hand-in-glove with the Ukrainian government to get dirt on Trump, an effort that should give Democrats some humility about their own over-the-top rhetoric on this stuff:

Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found. A Ukrainian-American operative who was consulting for the Democratic National Committee met with top officials in the Ukrainian Embassy in Washington in an effort to expose ties between Trump, top campaign aide Paul Manafort and Russia, according to people with direct knowledge of the situation. The Ukrainian efforts had an impact in the race, helping to force Manafort’s resignation and advancing the narrative that Trump’s campaign was deeply connected to Ukraine’s foe to the east, Russia. 

But that was bad too, and this was worse because of the overall context: while the Ukranian government has been populated by plenty of shady characters in the past decade, Russia is a much bigger and more hostile international actor than Ukraine, and Putin has a known, ongoing strategy of disrupting the democratic process in other countries (none more than in Ukraine). The Trump camp already knew that Russia was widely believed to be the source of the earlier hacks.

Another line of defense is that it shouldn’t be a big deal for the Trump campaign to meet with Russians to learn damaging information about their adversaries, because the media does exactly the same thing (indeed, in this very story, the Today Show interviewed Veselnitskaya to get the dirt on Don Jr.). But campaigns for high public office are different, because foreign governments know they are dealing with future American leaders. It’s still not the same thing.

But just because Don Jr. was wrong, doesn’t necessarily make what he did illegal. The word “treason” has been thrown around very loosely, even by Senator Tim Kaine, Hillary’s erstwhile running mate. Former Obama advisor Ben Rhodes, whose misadventures understanding the law I’ve discussed before, asked on Twitter, “I’m old enough to remember when the GOP was outraged over legalisms like the definition of is. What about the definition of treason?”

In fact, the definition of treason is anything but a technicality. Among the scores of federal crimes on the books, it’s the only crime explicitly defined in the Constitution, in Article III, Section 3, and the Founding Fathers considered that strict written definition to be an essential bulwark against political prosecutions of precisely the type that Kaine, Rhodes, and others are so flippantly suggesting. The Founders drew on a dolorous tradition of abusive prosecutions for treason, and so adopted a demanding definition: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It also required a heightened standard of proof for treason convictions, and barred punishing family members of the convicted traitor. James Madison, in Federalist No. 43, specifically noted why this definition was drawn narrowly:

As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

Alexander Hamilton, in Federalist No. 84, listed the protection of a strict definition of treason as one of the key protections for individual rights that, in his view, made a bill of rights unnecessary. Chief Justice John Marshall, in the 1807 case of Ex Parte Bollman (arising from the treason prosecution of associates of Aaron Burr), echoed Madison:

As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry…none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both. To prevent the possibility of those calamities which result from the extension of treason to offenses of minor importance, that great fundamental law which defines and limits the various departments of our government has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend.

Justice Jackson wrote, in the 1945 case of Cramer v. United States:

The Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse of the treason charge…the basic law of treason in this country was framed by men who, as we have seen, were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself…. 

The crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid and comfort the enemy- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason….the treason rule, whether wisely or not, is severely restrictive…

Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that ‘He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.’ We still put trust in it.

A charge of treason against Don Jr. would fall down at the very outset: treason is limited to giving aid and comfort to a nation’s enemies, and while Russia at present is under U.S. sanctions, it’s still a country with which we maintain normal diplomatic relations. As UC-Davis Law professor Carlton Lawson has noted, “enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war. Nations with whom we are formally at peace, such as Russia, are not enemies.” George Washington University Law professor Jonathan Turley adds, “Trump Jr. went to a meeting on the belief that a lawyer had evidence of criminal collusion by Clinton with a foreign power. That is a rather curious basis for a charge of treason and would make traitors of countless campaign operatives.”

Beyond treason, the other main theory being pushed is that accepting information from Russian sources would constitute a campaign finance violation, because the law prohibits accepting donations of any “thing of value” from foreign sources. (As Turley notes, this would also include the Clinton campaign’s receipt of information from Ukraine). UC-Irvine Law professor Rick Hasen has been pushing this theory, based on some expansive FEC opinions (never tested in court). Hasen favors some fairly draconian readings of campaign finance law in general, and the intricacies of the theory deserve a longer rebuttal, but a lot of the people signing up for his theory should really reconsider, since it would turn the simple receipt of information — from domestic as well as foreign sources, if not reported as donations — into violations of federal law, potentially criminal ones. That potentially raises some very serious First Amendment issues in the gathering of information for purposes of political debate, and could impose federal regulation on all sorts of activities that no campaign presently treats as against the law. 

If you wouldn’t want your friends hauled into court under these legal theories, think twice about advocating them for your foes.


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