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Why almost no one is guilty of treason, explained

Adam Schiff isn’t guilty of treason, nor is Donald Trump, and neither is just about any other person you can think of.

US House Representative Adam Schiff.
Adam Schiff at the hearing where the treason allegedly happened (there was no treason).
Tom Williams/CQ-Roll Call, Inc via Getty Images
Dylan Matthews is a senior correspondent and head writer for Vox's Future Perfect section and has worked at Vox since 2014. He is particularly interested in global health and pandemic prevention, anti-poverty efforts, economic policy and theory, and conflicts about the right way to do philanthropy.

On Sunday night and Monday morning, President Donald Trump took to Twitter and casually suggested that one of his political rivals — House Intelligence Committee Chair Adam Schiff (D-CA) — be investigated and then arrested for treason for comments made during a committee hearing last week.

In the hearing, Schiff paraphrased, in exaggerated fashion, the partial transcript released by the Trump White House of Trump’s call with the president of Ukraine, in which he requests that Ukraine revive an investigation into former Vice President Joe Biden and his son Hunter. Schiff’s version went quite a bit further than the actual text of the readout, as CNN fact-checker Daniel Dale explains here; in Schiff’s version, Trump asked Ukrainian president Volodymyr Zelensky to “make up dirt on my political opponent,” whereas Trump only asked for further investigation and did not explicitly demand that Zelensky make up dirt.

But in Trump’s judgment, Schiff was not merely exaggerating but uttering “lies … made in perhaps the most blatant and sinister manner ever seen in the great Chamber” (by which Trump presumably means the US Capitol Building, which is not where the Schiff hearing took place):

This hardly needs to be said, but Adam Schiff is not guilty of treason. Neither are the people who gave the whistleblower the information about Trump’s dealings with Ukraine, despite what Trump thinks. Nor is the FBI, another Trump target in the past.

And, it must be said, neither is Donald Trump, unless it comes out that he was planning a literal war against the US with some other country.

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.

What the Constitution says about treason

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’ 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, Schiff is not going to face a levying war prosecution. That leaves the claim that he provided aid and comfort to our enemies by misquoting the president.

This is obviously preposterous but let’s keep going with it for a second. The prosecution would have to name a specific enemy to whom Schiff is lending aid and comfort. It can’t be Ukraine or Russia because neither of those countries is an enemy of the US. 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 the US. 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 1945 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 Schiff not only provided aid and comfort but also consciously intended to betray the United States of America is basically impossible. Trump is, once again, making a baseless accusation.

Investigating Schiff could have downsides for Trump

Indeed, there is an argument to be made that a Trump decision to launch an investigation into Schiff for comments made in a House hearing would itself be an impeachable offense, as UMass Amherst political scientist Paul Musgraves has argued. The Speech and Debate Clause of the Constitution (Article I, Section 6, Clause 1) states that members of Congress “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

In practice, the Supreme Court has ruled that this means members of Congress have immunity from questioning and prosecution for activities they undertake in the course of legislating, such as conducting committee hearings. That immunity is not unlimited; the Supreme Court ruled that the reading of the Pentagon Papers into the Congressional record by then-Sen. Mike Gravel was not legislative activity that was protected. But the Court’s ruling in Gravel v. United States makes it clear that Schiff’s conduct qualifies and would be exempt from criminal prosecution:

We recognize today — as the Court has recognized before, Kilbourn v. Thompson, 103 U.S. at 103 U. S. 204; Tenney v. Brandhove, 341 U. S. 367, 341 U. S. 377-378 (1951) — that a Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the “sphere of legitimate legislative activity.”

The Speech and Debate clause has roots going back, as Felix Frankfurter wrote in his opinion in Tenney v. Brandhove, to at least the English Civil War, where among the parliamentarians’ grievances against Charles I were his prosecutions for seditious speech in parliament. The clause is specifically there to protect members of Congress from groundless prosecution by the executive for speech that the executive does not like. In other words, it exists for exactly this situation, to protect the Adam Schiffs of the world against the Donald Trumps of the world.

If Trump were to try to prosecute Schiff for his comments anyway, he would likely be running afoul of the Speech and Debate clause, and his violation of the clause could constitute one of the articles of impeachment considered and/or approved by the House. The House passed an article of impeachment against Andrew Johnson in 1868 (article 10) that specifically cited his insults against members of Congress; this article went nowhere in the Senate and did not specifically cite the Speech and Debate clause, but provides some potential precedent for impeachment on these grounds.

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