Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery gives expert analysis surrounding media coverage regarding whether or not Donald Trump, Jr. committed treason. Professor Beery is a summa cum laude graduate of Western Michigan University Cooley Law School teaches Constitutional Law, Criminal Law, and Criminal Procedure. Professor Beery is a frequent legal expert in the media.
Until now, some pundits were hesitant to throw around the “C word” when discussing the Trump team’s seeming fetish for raw Russian power. That word was collusion. But the days when that word, and its attendant whiff of impossible scandal, were deemed hysterical or preposterous – well, those days, like the Biblical former world, have passed away.
The email exchange between Donald Trump, Jr. and a portly intermediary named Rob Goldstone proves that the Trump campaign did, in fact, collude with the Russians to defeat Hillary Clinton. To collude means to conspire (not necessarily in the legal sense), which in turn means to act in concert for the accomplishment of some improper purpose. As is the case with conspiring (even in the legal sense), colluding does not mean successfully executing some diabolical plan; it just means working together to try.
So the goalpost has moved. We’re on to the “T word.” Now the question isn’t whether Trump Jr. (and by extension the whole Trump operation) colluded, but whether Trump Jr. (or others similarly situated) committed treason. (Actually this is just one of many questions about many possible crimes, but since it’s in the ether, I want to focus on this one.) It’s way too soon to say that Trump Jr. did commit treason, and there are many voices out there screeching that he didn’t. (Jonathan Turley and Jeffrey Toobin, I’m looking at you.)
What I’d like to point out is that, just as it’s far too early to say that Trump Jr. did commit treason, it’s also a bit silly to have already concluded that he did not.
In the United States, treason is defined in the Constitution itself, not just a mere statute. Article III provides that treason “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” (A federal statute, which can’t change the standard, merely parrots it: “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 …” 18 USC 2381.)
The two most important words in all of the law are and and or. Those words signal the relationships between ideas or elements, telling advocates whether they must show one thing, every item on a list of things, or some combination of things. We see that our Constitution’s definition of treason has an or in it – as well as at least one and.
Treason can consist either of waging war against the US or adhering to enemies of the US, giving them aid and comfort. As to the comma in that last sentence, let’s read that as an and, too (that’s the reading most favorable to Junior). That seems a fair reading; were a parent to tell a child, “You must get to bed, giving yourself plenty of rest,” that comma before giving certainly means and, not or – you should go to bed and get rest, not you should go to bed or get rest.
So we can represent treason, quasi-mathematically, this way: You commit treason if you
Levy + War + Against the United States
Adhere + To enemies of the US + Give those enemies (Aid + Comfort)
Let’s assume that, even though Trump Jr. might have participated in an attack on American democracy, he did not in any literal sense levy war against the United States. That leaves us with the question whether he adhered to an enemy of the US and gave that enemy aid and comfort.
To adhere is to stick to or bind oneself to something. It can also mean to follow, as when one adheres to a religious belief. So the question would be whether Trump Jr. joined with or bound himself to something else – in this case, Russia (or Russians). It seems clear from his emails that he did join together with a foreign national to further a common purpose: the defeat of Hillary Clinton facilitated by Russian intelligence that, in all likelihood, would have been obtained through espionage. I note here how unlikely it is that Special Counsel Bob Mueller is going to believe Trump Jr.’s story that no ill-gotten information actually changed hands at the not-so-clandestine meeting. If this joining together turns out to have happened (in a way that is legally provable), then Trump Jr. seems to have adhered. On the other hand, if adhere means come under the spell of some anti-American orthodoxy (again, as in religious adherence), then we seem a long way from treason in this case.
Enemy of the United States
It’s true that when we talk about enemies of the US, we usually (historically) mean a country against whom we are engaged in a hot war. But the term “enemy” is not defined in the Constitution, and like most of the Constitution’s words, “enemy” is a broad and flexible term that should be interpreted in light of evolving realities. (Yes, the organic “living Constitution” view is the correct one, and “originalism” is highly suspect.) Many pols, lawyers, and national-security experts have claimed, with good reason, that what Russia did to the United States during the 2016 election cycle was nothing short of an act of war – not in the conventional sense, but in the sense that it involved key elements of war: an attack combined with the intent to achieve dominance over the United States by causing American institutions to malfunction and, ultimately, collapse. By that standard, Russia could be an enemy of the United States.
Giving Aid and Comfort
This term – aid and comfort – has always been broadly understood to mean nothing more than tangible help or assistance. The Russians had multiple objectives: to see the defeat of Hillary Clinton; to accomplish that end by employing espionage and subterfuge; to cause chaos in American politics; and to install an American government so compromised by Russian mischief as to be an extension of Vladimir Putin’s will. Trump Jr.’s emails arguably show that he was anxious to (and by accommodating the meeting request, actually endeavored to) help the Russians achieve those objectives. Critically, we don’t yet know the full extent of the Trump team’s efforts to help the Russians. Obviously, the deeper those efforts went, the stronger the case for treason becomes. We also don’t yet know the extent to which President Trump is compromised (his tax returns sure would help in that regard). The more compromised he is, the more likely it is that he and his family would have played along; the more likely it is that they would have provided aid and comfort.
One common misperception about treason, and one I’ve heard repeatedly recently, is that it requires a war and adherence and an enemy and the provision of aid and comfort. That’s not what the Constitution says, and it ignores the meaning of the word or: treason can be committed either by levying war or by acting in concert with an enemy to help that enemy attack the United States.
Without knowing about all the Trump team’s financial and other dealings with Russian officials, many of which are likely still to be discovered, it’s hard to say whether there was enough entanglement, symbiosis, and subversive conduct to rise to the level of treason. It would be absurd to conclude one way or the other at this point, but it is certainly not absurd, as talking-head thought police keep telling us, to discuss the possibility of treason and argue one side or the other. As long as we keep our focus on the standards discussed above, debate about the issue is both fair and healthy. File it under “civics 101” — the more we engage about constitutional issues, the better.