After Donald Trump called for Russia to obtain and release thousands of Hillary Clinton’s emails from tenure as secretary of state, some critics responded with a very serious allegation: treason.
If you or I did what Trump just did we would be charged with treason. Attorney General Lynch?— Michael Moore (@MMFlint) July 27, 2016
Your own nominee asks Russia to hack our government and you're trying to strip people of healthcare?? #TrumpTreason https://t.co/kdHixwiXRS— Peter Daou (@peterdaou) July 27, 2016
Merriam-Webster reported that the number of users looking up the definition of treason nearly doubled after the incident.
So let’s set this straight: No, Donald Trump is not guilty of treason. Nor was Edward Snowden, who faced similarly spurious accusations a few years ago. Treason is a specific charge with a specific meaning, with which a tiny handful of people have been charged, and which basically nobody apart from maybe al-Qaeda members meets in a modern context.
Article III, Section 3 of the Constitution defines treason as follows:
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. 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.
As UC Davis's Carlton Larson, one of the few experts on treason law in academia today, explained to me back in 2013, this language provides for two types of treason prosecutions.
The first is an "aid and comfort" prosecution, in which the defendant is accused of aiding the war effort of a country presently at war with the United States. Iva Toguri, who was convicted of treason after the government accused her of being "Tokyo Rose," an English-language Japanese propaganda broadcaster meant to lower American service members' morale in the Pacific, faced an aid and comfort prosecution; she was later exonerated and received a presidential pardon. The American Nazi propagandist Robert Henry Best was convicted after an aid and comfort prosecution in 1948.
The second type of treason prosecution involves "levying war," in which the defendants themselves waged war against the United States or an individual state. Aaron Burr, Thomas Jefferson's first vice president, was prosecuted for treason on these grounds and acquitted, after being accused of assembling forces to create an independent state in the center of North America. John Brown, the abolitionist revolutionary, was convicted of treason against the state of Virginia on levying war grounds after his raid on Harpers Ferry.
Now, Trump is obviously not going to face a levying war prosecution. That leaves the claim that he provided aid and comfort to our enemies by encouraging Russia to hack Clinton’s emails.
But there’s one gigantic problem with this: Russia is not our enemy. The aid and comfort charge is only applicable when the United States is at war, as it was against Japan and Germany in World War II. It’s not applicable at all when the US is not engaged in an active military conflict.
This remains true in situations where the country in question is a geopolitical rival of America’s. Julius and Ethel Rosenberg were convicted of passing atomic secrets to the Soviet Union, but they were not charged with treason — because the US was not at war with the Soviet Union. Aldrich Ames, the CIA officer turned Soviet spy, got at least 10 people killed through his actions, and FBI Russian spy Robert Hanssen indirectly got at least three killed, but neither was charged with treason, because the US was not at war with the Soviet Union/Russian Federation at the time of their actions.
Even if the US were at war with Russia, the treason allegation would be iffy. Consider the Supreme Court case of Cramer v. United States, where Anthony Cramer, an American man who met with Nazi agents in the US, saw his treason conviction overturned on the grounds that merely meeting the enemy isn't enough to count as treason.
In his opinion in that case, Justice Robert Jackson asserted that only a defendant who can be found to have "adhered to the enemy" and "intended to betray" the US could be found guilty of treason — even if he did provide aid and comfort to the enemy.
Proving that Trump not only provided aid and comfort by the mere act of encouraging Russia to hack but also consciously intended to betray the United States of America would be a tall order for any prosecutor.
But all of this only matters if the US and Russia are actually at war. They are not. As such, any accusations that Trump committed treason are completely baseless.