Matthew T. Mangino
July 20, 2018
There has been a lot of talk of treason in the aftermath of President Donald Trump’s disastrous press conference with Russian Dictator Vladimir Putin in Helsinki.
Article III, Section 3 of the United States Constitution provides, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
The framers of the Constitution were particularly concerned with the use of treason to squelch political thought and debate. According to The Washington Post, speaking against the government, undermining political opponents, supporting harmful policies or even placing the interests of another nation ahead of those of the United States are not acts of treason under the Constitution.
Professors Paul T. Crane and Deborah Pearlstein wrote for the National Constitution Center website “the Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason; expressing traitorous thoughts or intentions alone does not suffice.”
There have been few trials for treason in this country. The name most synonymous with treason in America is Benedict Arnold. He sought to undermine the efforts of the colonial army during the Revolutionary War—he fled the country before he could be charged or tried.
Aaron Burr, Thomas Jefferson’s vice-president, disgraced by killing Alexander Hamilton in a duel, sought to establish a Mexican empire which would have included annexing territories from within the United States. He was tried for treason.
Burr was found not guilty. Chief Justice John Marshall said that to prove treason, “war must actually be levied against the United States ... conspiracy (to levy war) is not treason.”
Jefferson Davis, president of the Confederacy, was indicted for treason at the end of the Civil War. The former United State Senator was never tried and spent only two years in custody.
The most famous “traitor” trial of the 20th century had nothing to do with treason. Julius and Ethel Rosenberg were prosecuted for disclosing atomic secrets to the Soviet Union. The Rosenbergs were charged with conspiracy to commit espionage, not treason.
The Espionage Act stipulates that providing military secrets to any nation–enemy or not– is an act of espionage. The highly publicized trial was replete with instances where the prosecutor alleged that the Rosenbergs were traitors and committed treason.
In 1953, in the midst of the “red scare” the Rosenbergs were executed.
This week, former CIA director John Brennan tweeted that Trump’s comments at the Helsinki news conference “rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous.″
Can Trump be considered a traitor for giving “aid and comfort” to an enemy?
First, one must determine if Russia is an enemy of the United States. An enemy is a nation or an organization with which the United States is in a declared open war. Although Russia has engaged in cyber-attacks on the nation’s political institutions, the U.S. is not at war with Russia.
Russia is an adversary whose interests are frequently at odds with those of the United States, but for purposes of treason law, according to the Washington Post, it is no different than Canada, France or Brazil.
Although President Trump’s kowtowing to a Russian dictator is embarrassing, and without precedent, it is not treason.
However, treason is not the end of the story. As special counsel Robert Mueller continues to methodically examine evidence of Russian interference in the 2016 presidential election—the President’s conduct, and that of his close political aides—before and after the election—remains under scrutiny.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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