Did Trump commit ‘treason’ in Helsinki? It doesn’t hold up

By Fred Barbash / The Washington Post

In the wake of President Donald Trump’s performance Monday in Helsinki, “treason” reigned as the No. 1 looked-up word at Merriam-Webster.

A reason, perhaps, was that the T-word was being deployed by such notables as Pulitzer Prize-winning author and New York Times columnist Thomas L. Friedman, who wrote of the “overwhelming evidence” that the president is “engaged in treasonous behavior,” and by former CIA director and ardent Trump critic John Brennan, who tweeted that Trump’s “news conference performance” was “nothing short of treasonous.”

The New York Daily News made the leap from “treasonous” to “treason” plain and simple, with a front page that quickly went viral.

New York Daily News tweeted “realdonaldtrump derides reports with which he disagrees as ‘fake news,’ then buys the Russian narrative hook, line, sinker, pole and boat.”

And Rep. Adam Smith, D-Wash., ranking minority-party member of the House Armed Services Committee, in his own statement, declared that “it is hard to see President Trump siding with Vladimir Putin over our own intelligence community and criminal investigators as anything other than treason.”

In an interview with the Seattle Times, Smith backed away slightly, saying his use of the word “treason might have been a little bit of hyperbole.”

That was a wise rhetorical de-escalation, as University of Texas law professor Steve Vladeck made clear in his own tweet:

Steve Vladeck tweeted “realDonaldTrump’s disturbing press conference wasn’t ‘treason,’ and it wasn’t, at least to me, ‘impeachable.’

“What it was, though, was a clarion call for congressional Republicans to realize that the time has come (if it hasn’t long-since passed) to put country over party…”

Perhaps some who used the term were speaking more broadly, using definition 2 in Merriam Webster, “the betrayal of a trust.”

But nothing Trump did in Helsinki and nothing he has done otherwise likely qualify as treason, at least by its legal definition.

“Treason against the United States,” says Section 3 of Article III of the U.S. Constitution, “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” It’s the only crime explicitly defined in the nation’s founding charter. The framers clearly wanted it used sparingly, declaring that “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.”

Treason? “No, not at all,” Carlton F.W. Larson, an expert on the subject at the University of California at Davis, School of Law, told The Washington Post.

“It’s funny,” he said, “because people keep asking me if it’s treason yet. He could hand the nuclear codes over to Putin and it wouldn’t be treason. This isn’t anything as bad as that. Groveling in front of a foreign leader, putting the interests of a foreign country ahead of the United States, displaying horrific judgment in foreign policy — none of those things are treason.”

Trump would have to be participating in waging war against the United States and/or giving “aid and comfort” to the nation’s enemies to be vulnerable to treason charges, either in a court or an impeachment proceeding.

Problem one: The United States is not at war.

Under the treason law, Larson said, “levying war is a situation where people who owe allegiance to the United States are gathering in force, usually to overthrow the government, to shut down the government or make it inoperable in some kind of way.

“There you would need Trump actually being part of that. If you thought that the hacking rose to the level of war — that’s a hard sell. By analogy, suppose Trump had sent burglars over to the DNC to rifle through their files, nobody would say that’s treason. That’s Watergate.”

“Hacking into a private organization to steal its documents seems most analogous to a burglary … Likewise, hacking into a voting machine to change the results seems most analogous to ballot stuffing or ballot tampering. A crime has clearly been committed, but not the crime of treason.”

Problem two: There must be an enemy to aid and comfort.

While many may think of Russia as an adversary and even an enemy, it has not been declared so. An “enemy,” Harvard Law School professor Laurence Tribe said in an email to The Post, “arguably” requires a formal state of war.

“Some commentators,” Tribe writes with co-author Joshua Matz in “To End a Presidency: The Power of Impeachment,” “have argued that Russia also ranks among our ‘enemies’” because of its hacking to influence the 2016 election in Trump’s favor. The argument is “interesting and important,” they write, but “continued legal uncertainty about whether it is treasonous to lend ‘aid and comfort’ to Russia militates against basing an impeachment on this theory.” There are plenty of other potential crimes in the Russia investigation, they write, but probably not treason.

Larson agreed. “I think that a cyberattack that is designed to cripple the U.S. government, that looks a lot like a traditional act of war,” he said. But the United States has not been treating it as a war. And if it did, “China is notorious for that, right. They’re constantly probing and messing around with our computer systems. But I don’t think we’re at a state of war with China.”

What enraged Smith and made Friedman “sick to my stomach” was, among other things, Trump’s failure to do anything about Russia’s behavior and his siding with Russia over the U.S. intelligence and law enforcement communities.

“Trump is simply insanely obsessed with what happened in the last election,” Friedman wrote. “But now he is president, and the fact that he may not have colluded with the Russians doesn’t mean he does not, as president, have a responsibility to ensure that the Russians be punished for interfering in our last election on their own and be effectively deterred from doing so in the future. That is in his job description.”

“At every turn of his trip to Europe,” Smith said in his statement, “President Trump has followed a script that parallels Moscow’s plan to weaken and divide America’s allies and partners and undermine democratic values. There is an extensive factual record suggesting that President Trump’s campaign and the Russians conspired to influence our election for President Trump. Now Trump is trying to cover it up. There is no sugar coating this. It is hard to see President Trump siding with Vladimir Putin over our own intelligence community and our criminal investigators as anything other than treason.”

John O. Brennan tweeted “Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin. Republican Patriots: Where are you???”

“My guess,” Larson said, “is that these people are using the term sort of in a looser rhetorical sense,” to mean, perhaps, something like betrayal.