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No, Tom Cotton did not commit treason

Sen. Tom Cotton
Sen. Tom Cotton
Tom Williams/CQ Roll Call

Sen. Tom Cotton and the 46 other Republican Senators who joined his open letter to Iran, hinting that they might blow up a nuclear deal that they don't like, crossed a real line.

They undermined US foreign policy and the president's constitutionally enshrined authority over it; that's really serious, and the implications go way beyond just the Iran talks. There is a plausible, if disputed, case that they may have violated the Constitution in doing so, along with an old and little-used law called the Logan Act.

But it's not treason; they are not traitors. What Cotton and the other Republican senators did was a breach, but it comes nowhere close to treason, or to any other crime that would or could merit actual punishment. Suggesting otherwise isn't just factually ridiculous — it's also a repeat of the debate-silencing tactics the Bush administration and its supporters used in W's first term to shut down criticism of the Iraq invasion. Americans should know better.

Even if Cotton did violate the Constitution, it was not in a way that actually puts people in jail

Senator John McCain (L), Senator Tom Cotton (2nd L), and Senator Jack Reed (R) meet before holding a news conference. (Samuel Corum/Anadolu Agency/Getty)

To understand why what Cotton did was not treason, you have to know the lines he did cross.

Constitutional law sets distinct, meaningful limits on Congress' involvement in foreign policy. Unlike with legislation, the law defines the president as the "sole organ" in making foreign policy. That goes back to an 1800 speech by founding father John Marshall, a year before he became chief justice of the Supreme Court. In that speech, he described the president as "sole organ of the nation in its external relations, and its sole representative with foreign nations." A 1936 Supreme Court decision, United States v. Curtiss-Wright, codified that doctrine into constitutional law, ruling that the "sole organ" doctrine grants the president inherent constitutional powers in foreign relations.

Cotton's letter, by interfering with Obama's foreign policy, seems to go well beyond the "sole organ" limits on the president's foreign policy powers and could be seen as unconstitutional on those grounds. It's not a slam-dunk, but it's at least debatable, and that's not a great position for a bunch of senators to be in.

Indeed, in prior weeks, some constitutional-law scholars had argued as much about Republicans' plot to secretly invite Israeli Prime Minister Benjamin Netanyahu to speak to Congress against a nuclear deal with Iran. David Bernstein, of George Mason University, wrote at the Washington Post that Boehner's invitation to Netanyahu "violates constitutional norms that have been observed for generations." Another scholar, Michael Ramsey, agreed.

But these sorts of constitutional limits are meant to shape how the government works and what it can do, not to send people to prison. Violating the Constitution here is a serious issue because it undermines the constitutional order and hurts American foreign policy, not because there is a law that says if you do it you will go to jail.

In other words, there is a case that the GOP letter to Iran violated the Constitution, or at least the spirit of constitutional limits on Congress, but this is not the kind of violation that people go to jail for.

What everyone gets wrong about the Logan Act

Cotton's letter also seems to potentially violate a law called the Logan Act, which forbids Americans from interfering in US foreign policy.

Indeed, the Logan Act was originally passed in a situation that looks strikingly similar to today's. In 1798, a state legislator who opposed US policy toward France sent a letter to the French government on ending an ongoing US-French conflict. The next year, Congress passed a law, which is still on the books, prohibiting US citizens from negotiating with foreign governments without official permission — and thus interfering in the foreign policy of the United States.

The case that Cotton's letter violates the Logan Act is substantial. Constitutional-law scholar Peter Spiro looked at this question and concluded that it did. "This [letter] seems to squarely satisfy its elements," he said of the law. He laid out his case in detail here.

But there's something that coverage of the Logan Act, as Spiro acknowledges, tends to get wrong: prosecution under the Logan Act isn't something that actually happens. There's never been a successful prosecution, and the last time it was used in an indictment was in 1803.

"No one is ever actually prosecuted under the measure," Spiro wrote previously, before the Cotton letter. "It's more a focal point for highlighting structural aspects of foreign relations."

Steve Vladeck, a law professor at American University, laid out the many reasons no one, especially Cotton, will be prosecuted under the Logan Act. (He and Spiro had an interesting back-and-forth in their posts, linked above, over the practical questions of enforcing the Logan Act, largely agreeing that it's unworkable.)

So when people say Cotton violated the Logan Act, they have a strong case. But if they go on to say that Cotton should or could be hauled off to jail for that, they're wrong. More fundamentally, they're misunderstanding the function the Logan Act serves: as a way to articulate limits on how American foreign policy can be conducted, not to send people to jail.

None of this comes anywhere near treason

Iva "Tokyo Rose" Toguri, who was convicted of treason for conducting Japanese broadcasts aimed at US troops during World War II, but was later pardoned. (National Archives)

There is indeed a strong case that Cotton's actions, by deliberately seeking to sabotage Obama's Iran policy, could hurt US foreign policy and damage American credibility abroad.

But the definition of treason is not "doing something that is bad for America." If it were, it's hard to imagine what wouldn't come under scrutiny for possible treason violations. Cutting a foreign trade deal of disputable merit? Passing legislation that ends up backfiring? Moving a factory abroad?

The actual definition of treason, of what legally qualifies someone as a traitor, makes this all much clearer:

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 means going to actual war against the United States, or materially aiding a military enemy of the US. There is an argument that Iran is the US's enemy, and that Cotton's letter might have somehow "aided" them in their negotiations, but it would be extreme and absurd to suggest that was enough for criminal liability.

As Bloomberg's David Knowles points out, the US and Iran are certainly adversaries but they are not at war. And even if they were, Cotton's letter comes nowhere near to materially aiding Iranian troops.

So this is easy: it's not treason. It's not even close.

There's something else that accusing Cotton of treason gets wrong: assuming he did this to hurt the United States. Even if that is the effect of his actions, it really does not appear to be his intent. Cotton gives every indication of being earnestly concerned about the Iran negotiations and believing that sabotaging those talks is in America's national security interests. Many can and do dispute his case, but it is a real stretch to argue that he is hurting America deliberately, which is often the implication of accusing him of treason.

Accusing Cotton of treason is similar to how the Bush administration silenced debate on the Iraq War

Then–Vice President Dick Cheney speaks in California in 2004. (David McNew/Getty)

Accusations of treason against Cotton should sound familiar to Americans. On September 20, 2001, President Bush said in a speech to Congress, "Either you are with us, or you are with the terrorists."

He was speaking to foreign nations about whether they would join the US in fighting terror, but the implication — opposition to my policies is equivalent to supporting terrorists — would hang over US political discourse for years.

The administration and its allies went on to deploy similar charges against anyone who dare questioned the run-up and execution of the 2003 Iraq invasion.

You can read just a sample of those accusations here. You will notice consistent themes: anyone who criticizes or questions Bush's policies, especially regarding the Iraq invasion, is undermining American troops or giving "aid and comfort to the enemy" — a deliberate echo of the legal definition of treason, given above.

This was bullying meant to silence debate, it was effective, and it helped get us the disastrous Iraq War. Americans, particularly those who questioned the Iraq War and may have felt their concerns suppressed by these tactics, should be alarmed to see them reemerging today.

Cotton himself, by the way, has engaged in these tactics himself. He first rose to prominence in 2006 by writing an open letter, while serving in Iraq, that called for New York Times reporters to be prosecuted and imprisoned for treason because they had reported on secret Bush administration snooping programs, including one aimed at uncovering terrorist financing.

The irony that Cotton is now being targeted by the same bullying, false accusations of treason that he himself has levied is, alas, probably lost on him. But that's no reason Cotton's critics should repeat his mistakes.

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