Why Donald Trump is not a traitor, and why it matters

John Shattuck, who as a lawyer ought to know better, says that Donald Trump’s actions with respect to Russia “raise the specter of treason.”

Now, I bow to no man in my hatred and contempt for Orange Julius Caesar, and I fully support Shattuck’s demand for an investigation of foreign interference and other misconduct in the course of the election just completed, but using the word “treason” is simply wrong, for reasons I’ve given before. And its wrongness matters, not just because hyperbole always weakens argument, but because the carefully restricted definition of the crime of  treason is essential to protecting free speech and the freedom of association.

Even assuming that:

    • Trump willingly accepted, and even asked for, Russian help to get elected (which I’d rate very likely);
    • Offered specific policy concessions in return for that help (less likely, though there might be an implicit bargain); and
    • Knew that those concessions were damaging to the national interest (still less likely, and in any case impossible to prove;

he still did not commit the crime of treason, simply because the United States is not at war with Russia.

Treason is the one crime defined in the Constitution; it consists in “waging war on the United States, or adhering to their enemies, giving them aid and comfort,” and it must be proven either by confession in open court or by an overt act testified to by two witnesses. An “enemy” in this context is a nation (or other entity) with which the United States is at war; that is clear both from the fact that “adhering to their enemies” is an alternative to “making war on the United States” and by the definition of “enemy” in international law; as the Declaration of Independence says, the United States regards other nations as “enemies in war, in peace friends.” A Nazi or Japanese sympathizer in 1940, even one taking German or Japanese money to betray American national interests, was not, by this definition, a “traitor.”  Therefore, no matter how disloyally  Trump has acted, he has not acted traitorously.

Why insist so strongly on what might seem a pedantic legal distinction?

Because the Framers knew what they were doing. “Treason” had been used in English politics as a catch-all charge against the losers in various political struggles. Worldwide, treason charges are among the most powerful tools of tyranny, precisely because the ordinary-language concept is so vague.

If “enemy” simply means a country whose government makes efforts to damage U.S. national interests, then whether someone is a “traitor” becomes a mere question of opinion (or, as Talleyrand said, “Just a matter of dates”). Anyone working in tandem with a foreign government might find himself charged with treason. The absolute rock-bottom principle of criminal law in a free society has to be that it’s possible to know whether one is or is not breaking the law, and that it’s not possible to become a criminal retrospectively when Oceania goes to war with Eastasia. The Reagan Administration waged an illegal and semi-covert war against the Sandinista regime in Nicaragua; that doesn’t make Americans who tried to stop that war, and who did things to help the Sandinistas, guilty of treason. “Cold War” was a metaphor, not a type of “war” for Constitutional purposes.

Of course, the “declaration of war” by Congress has now been rendered somewhat obsolete by changes in international practice. Even absent such a declaration, we’re clearly “at war” with a country or other entity with whose forces our forces are currently exchanging gunfire. Al-Qaeda, the Taliban, and ISIS are currently our “enemies.” But Saudi Arabia, despite what I am convinced was the direct involvement of senior officials and even members of the royal family in planning and financing the 9/11 attacks and other terrorist attacks, is not our “enemy” in that sense. And neither is Russia.

This principle will be even more important with Trump as President. Do you really want him to be able to announce that we’re “at war” with “Islamic terrorism” and start charging people with treason for building mosques? No, I didn’t think so.

So: repeat after me: Paul Manafort, whose firm helped pay for riots in Ukraine in which U.S. Marines were attacked, is disloyal. Donald Trump may well be subjectively disloyal, and very likely has acted disloyally. But they are not “traitors.” 

 

Trump’s Kremlin connection: the other shoe(s) drop

Mike Isikoff is about as far from being a Clinton-lover as it’s possible to be on an outpatient basis: he was last seen chasing down a semen-stained dress. But today he broke a blockbuster story: tracing the activities in Moscow of Carter Page, an otherwise utterly obscure person who was nonetheless one of the five people Donald Trump listed as “foreign policy advisers” to his campaign.

It appears that, after Trump named him as an adviser and just before the Republican convention, Page met in Moscow not only with an oligarch on the sanctions list but also with the official apparently in charge of Russian efforts to interfere in U.S. elections, including both the activities of the RT and Sputnik News and the hackers who broke into the DNC emails and released the results to WikiLeaks timed to create maximum heartache for Clinton.

Also today, ABC blew a major hole in Trump’s denial of major economic ties to Russia: his estimated take was in the “hundreds of millions of dollars,” some of it from the Russian mafia. His proposal to put his assets in a “blind trust” run by his children doesn’t pass the giggle test:  that trust wouldn’t even need glasses.

Add these to the list: Trump’s threat to renege on our NATO treaty commitments and not support our allies in the face of Russian aggression; Trump’s expressed admiration for Putin as “a stronger leader” than Obama;  hiring Paul Manafort, who worked to elect Putin’s puppet Yanukovych as President of Ukraine; his having foreign policy advisers like Gen. Michael Flynn, who takes money to go on Russian propaganda channel RT and compares it to CNN; Trump’s invitation to Putin to hack Clinton’s emails; and Trump’s astounding assurance that Putin wasn’t “going into Ukraine” two years after Russia had annexed Crimea and while Russian troops (under thin disguise as “volunteers”) were still shooting up the Donbass; and Trump’s promise to “look at” lifting the economic sanctions imposed on Russia after the annexation of Crimea.

Since the United States is not at war with Russia, what Trump is up to does not meet the Constitutional definition of “treason.” But since U.S. and Russian interests directly conflict, and since the Russian military has engaged in risky provocations such as buzzing U.S. Navy vessels in the Baltic, there is no reason not to call what Trump is doing – most of all, his invitation to an adversary to intervene on his behalf in our elections – disloyal. That’s the first time in U.S. history (unless you want to count George McClellan in 1864) that such a word could be  accurately used about a major-party candidate for President of the United States.

And yet the Republican Party – including legitimate war heroes such as Bob Dole and John McCain – is unifying behind a man not just obviously unfit to lead this country but not even loyal to it. That should give you some idea how deep the rot goes.

Footnotes

  1. With his usual impeccable timing, Ted Cruz chose today to endorse the man he previously said was unfit to be President.
  2. In related news, the Russian newspaper Kommersant reports that former KGB Col. Putin plans to reanimate his old outfit by recombining foreign and domestic intelligence agencies. Instead of doing so under the KGB name, however, Putin proposes to revert to name the outfit carried when Lavrenti Beria ran it for Stalin: the Ministry of State Security, or MGB. No word yet on plans to re-open “mental hospitals” in which to torture dissidents. But have patience.

No, actually, this thing is not at all like that thing: Trump, Russia, and “McCarthyism”

The astonishing closeness of Donald Trump and his campaign to the current (and increasingly murderous) Russian regime has attracted comment from Democrats (and other patriots). That in turn has attracted counter-comment from some of Trump’s defenders (and their dupes, and random Clinton-haters, plus some stray lefties still feeling the loyalty to the anti-anti-Communist cause even though Russia is now functionally fascist rather than communist) complaining about “McCarthyism.”

The comparison seemed to me so clearly absurd as to be scarcely worth the effort of refutation. But, as it seems to have some legs, here goes: Continue reading “No, actually, this thing is not at all like that thing: Trump, Russia, and “McCarthyism””