In a fiery statement at the sentencing hearing for former national security adviser and retired Lt. Gen. Michael Flynn, the presiding judge, Emmet Sullivan, denounced Flynn and argued that he might be guilty of treason:
Judge Sullivan now asking whether Flynn could have been charged with treason (!).— Andrew Prokop (@awprokop) December 18, 2018
Van Grack doesn't want to answer.
Flynn, to be clear, is pleading guilty to making false statements to the FBI, and special counsel Robert Mueller and his team are asking for a light sentence with no prison time. Treason, by contrast, is a capital crime.
It is possible that the judge was just making a rhetorical point. He was clearly outraged by Flynn’s conduct (“Arguably, this undermines everything this flag over here stands for!” he exclaimed), and “treason” as a term packs a bigger rhetorical punch than “making false statements to the FBI.” His attempted walkback of the comments suggests as much:
Judge Sullivan is now trying to walk back some of his rhetoric before the break. Says he was just asking about treason, not saying that Flynn committed it. “Don’t read too much into the questions I asked.” Sullivan says he couldn’t even tell you what the elements of treason are.— Ryan J. Reilly (@ryanjreilly) December 18, 2018
There is also, obviously, a colloquial meaning of “treason,” in which it consists of betraying your country in some way or favoring the interests of another country. Given that Flynn took money from the Turkish government shortly before delaying an anti-ISIS military plan Turkey opposed, it’s not outlandish to suggest that he engaged in a betrayal of some kind.
But law professors who have studied the treason clause of the Constitution, and its historical applications, say the actual crime does not apply here.
“Lots of disloyal, dangerous behavior that effectively amounts to a betrayal of the country can’t technically be prosecuted as treason,” UC Davis professor Carlton Larson, one of the few experts on treason law in academia today, wrote in an email. “Flynn’s behavior is a good example.”
Treason’s constitutional meaning
Treason is an unusual crime, in that it is defined within the text of the Constitution. Article III, Section 3 of the Constitution defines it 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 Larson explained to me in an earlier interview, 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. Not just “rivals” but literally at war. 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.
By contrast, successful aid-and-comfort prosecutions include those of American Nazi propagandist Robert Henry Best and of Iva Toguri, who was accused of being “Tokyo Rose,” an English-language Japanese propaganda broadcaster meant to lower American service members’ morale in the Pacific (she was later exonerated and received a presidential pardon).
The second type of treason 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 grounds of levying war after his raid on Harpers Ferry.
Michael Flynn’s conduct doesn’t meet this standard
Now, Michael Flynn is obviously not going to be prosecuted for levying war. That leaves the claim that he provided aid and comfort to our enemies in some way. Judge Sullivan was specifically referencing to Flynn’s ties to Russia — with which we are not at war.
Judge Sullivan also asked prosecutor Brandon Van Grack whether Flynn's conduct (promising to revisit/undo the sanctions that had just been imposed by the US in response to Russia's attack on the election) rised to the level of treason. So, there's that.— Natasha Bertrand (@NatashaBertrand) December 18, 2018
That is clearly not treason. “It is a preposterous stretch,” Eugene Kontorovich, a professor at George Mason’s law school, writes in an email. “There is no aid and comfort to an enemy; no time of war.”
Nor, Larson explains, does Flynn’s conduct backing up Turkey on ISIS policy qualify. “Turkey is not an enemy under the constitutional provision (indeed, it’s a NATO ally), so simply providing aid and comfort to Turkey is not treason,” he explains. “ISIS is an enemy, since it is a foreign group with whom we are in a state of open war. So the only way a treason charge could stick would be if the government could show that Flynn provided aid and comfort to ISIS, which is probably unlikely. Moreover, they would have to show that Flynn acted with the intent to aid ISIS, which would also be difficult to establish.”
If Flynn really was attempting to help ISIS, as opposed to Turkey, a prosecution would indeed seem plausible. Indeed, an American-born al-Qaeda operative was indicted for treason in 2006 for aiding the organization. The indictment cites the Authorization for the Use of Military Force passed in 2001 as well as Osama bin Laden’s statements that al-Qaeda is at war with the United States to demonstrate that by adhering to al-Qaeda, the operative in question, Adam Yahiye Gadahn, was helping a group with which the US was at war. The Obama and Trump administrations have relied on that same AUMF for prosecuting their war against ISIS, and you don’t have to look hard to find belligerent statements by ISIS officials against the US, suggesting that a similar rationale could result in the prosecution of a US recruit to ISIS for treason.
But there is no real reason to think Flynn was trying to help ISIS by declining to help Kurdish militants. It seems plausible he was trying to help Turkey, but again, they are an ally, not an enemy. Even if he did want to help ISIS (a claim that, again, is preposterous), the treason allegation would be iffy. Consider the Supreme Court case of Cramer v. United States, in which 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 Flynn not only provided aid and comfort to ISIS, but also consciously intended to betray the United States of America, would be basically impossible. That holds even in the incredibly unlikely world where those were Flynn’s intentions.
Treason is a very limited crime. It’s rarely prosecuted outside of wartime; Gadahn was the first person charged with treason since World War II. And it definitely doesn’t apply to this case.