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.” 


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

18 thoughts on “Why Donald Trump is not a traitor, and why it matters”

  1. If an American helped the Japanese attack Pearl Harbour, you mean that would not be treason because an interval passed before the US declared a "state of war"? I find it dubious that such a person could not be called a "traitor".

    The worst traitor in American history was probably General James Wilkinson who was a paid agent of Spain for his entire distinguished career (twice Senior General of the US Army, 1796-1825) and was never caught. "Traitor" fits the description of Wilkinson , whether you could technically find him guilty of treason or not. A traitor in the dictionary is also "one who betrays another's trust or is false to an obligation or duty", and "if the cap fits, wear it".

    Not to call Wilkinson, Manafort or Trump "traitors" seems to be just an Orwellian abuse of language. Call a spade a spade, let the lawyers sort out the implications if it comes to court.

    A cyber-attack is still an attack, and to refuse to admit it happened, or even engage with its implications, as Trump is doing, is surely dereliction of duty, a high crime in a President, if not technically "treason" as defined by statute. As Trump is not President (yet), he will certainly be guilty of it in office, and is in my view then a traitor as Wilkinson was, putting his own gain before country and solemn Oath of Office. If he engaged with the Russians to conspire in the attack, then he is already a traitor.

    But of course,

    Treason doth never prosper.
    What is the reason?
    Why, if it prosper,
    None dare call it Treason.
    (Sir John Harington, 1561-1612, inventor of the flush toilet)

    1. Both toby52 and Mark are correct. In common parlance, the "Pearl Harbor" example and Wilkinson example are treason. However, Mark is correct in insisting on limiting the use of the word to its legal meaning. The reason is that, if we don't, it is highly likely that President Trump (still trying to get my head around that one and saying it aloud without gagging) will attack his opponents with the word. And, given the nature of the deplorables who follow him, this will put those opponents in physical danger.

      1. The problem is that it is not clear that Trump is going to be restrained regardless of whether his opponents call him a traitor or not.

        1. Actually, if past is prologue, we know with absolute certainly that neither President Donald nor anyone in his orbit will be in the slightest bit restrained regardless of what anyone else does or says.

      2. Never use the words President and Trump together. He is either Mr Trump or President <expletive>. To call him "President Trump" is to admit his legitimacy.

        1. I have proposed systematically using the style "Mr. Prezident". He will be the lawfully elected head of the US Executive, but we should never forget that his election was tainted by foreign interference and an unprecedented sewage outfall of lies, his person odious and dangerously incompetent, and his words, policies and appointees deserve – as Mark says – neither courtesy nor deference.

          1. How far does "interfering in an election go", though? For example, France would very likely have a different president without the US charges against Dominique Strauss-Khan; does that mean Sarkozy's election is "tainted by foreign interference?"

          2. The charges were not brought with the intention of damaging his prospects. He also went free in the US – and was convicted of sexual offences in tolerant France, which ended his presidential ambitions.

          3. I agree with James about why the election wasn't tainted by American interference. The evidence seems clear that the Americans didn't, in any way, set up DSK or manipulate his case as a way of manipulating the outcome of the French presidential election.

            Also, I would say that Tristane Banon’s claim that former Dominique Strauss-Kahn attempted to rape her (together with our learning about his other sexual habits—sexual harassment on a Trumpian level, frequenting prostitutes and engaging in orgies) probably did him a lot more harm politically than the accusations of rape in NYC. She was on every magazine cover in France. And she was a very, very simpatico person—women identified with her, men wanted to protect her. I think that was the affair which cost DSK the presidency.

  2. An even greater authority lines up against Mark. Dr. Johnson, defining "pension": "In England it is generally understood as pay given to a state hireling for treason to his country". This later caused some awkwardness when Johnson was awarded, and accepted, a state pension.

    But Mark is right and the wits wrong.

  3. Agree with above. I think you can make a good case to argue that Trump, who campaigned on a slogan of "America First" is pursuing policies that could be better characterized as "Russia First." Sooner or later there will be evidence that Putin is exerting influence over his foreign policy decisions. Then it will be impeachment time for abuse of power or dereliction of duty or a large number of other possibilities, but not for treason.

    Speaking of sooner or later, eventually Putin is going to stab this guy in the back. Then we will see what happens to Putin's approval rating among Trump supporters.

    1. Curious that the drafters of the US Constitution wrote in a precise and narrow definition of treason, but left the grounds for impeachment as wide as a stable door.

      1. Intentional, I think, given their notions of checks on power. Convicting people of treason is punching down; it needs to be carefully restricted. Impeachment is punching up.

      2. It is problematic that "high crimes and misdemeanors" turns out to mean whatever the entity with the power of impeachment thinks it means (witness the two presidents who were impeached, neither being convicted). However, impeachment is about removal from office for (presumed) cause. It imposes no further punishment, even though the actions resulting in impeachment may carry additional punishments before other tribunals. Treason is a capital crime and should for that reason be very narrowly and precisely defined.

  4. I just read an article arguing that attempts to sway the Electoral College to vote against Trump were "close to treason." Well, the author didn't call them treason, but (however futile they are) really they're not even close.

  5. Another point in Mark's favour is that Trump's foreign "policy" is going to involve a lot of actions where right-thinking Americans are going to have to take the side of China and Iran, for instance. They will be "giving aid and comfort" to Trump's declared enemies. This patriotism will not make them traitors, any more than opponents of the Vietnam wars were.

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