Trump's 'High Crimes' -- Not Treason

Monday morning as I sat down to write this piece I asked a law professor friend for his “lawyerly” view of my using the word “treason” to describe recent actions of the president of the United States. He of course immediately referred me to the Constitution itself, Article 3, Section 3 to be exact, where treason gets its own section.

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 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.

Pretty high bar, right? That was no accident, as James Madison explained in Federalist 43.

But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the [Constitutional] convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

In other words, because accusations of treason were part of the rough and tumble of politics even then, the framers defined it precisely in the Constitution itself and made it hard to prove. In a persuasive piece for the Washington Post back in February, “Five Myths about Treason,” Prof. Carlton Larson of UC Davis lays out just how restrictive treason law is. The fact that we’re not formally at war with Russia means that even if Trump and his sleazy minions (Paul Manafort, Carter Page, Michael Flynn, and Roger Stone—what a bunch!) really did give “aid and comfort” to Vladimir Putin’s efforts to weaken the United States, they haven’t committed treason.

That’s as far as I’d gotten when the Washington Post bombshell exploded all over the Internet yesterday. Did anything change?

The New Yorker’s Andy Borowitz thought so: “Three Russian Spies Meet in Oval Office,” he posted. “After approximately an hour, the meeting broke up, with two of the spies leaving the Oval Office and the third remaining behind.” But being a spy isn’t automatically treasonous. It might be criminal (The Espionage Act), or impeachable (a high crime and misdemeanor) — but it’s not treason. And despite, or perhaps because of Trump’s bluster about his brain, I just don’t think he’s smart enough to be a spy — or a mole, working craftily in the dark for years on behalf of his secret masters. He needs affirmation, which the Sergeys, Lavrov and Kislyak, by the looks of it, were all too happy to provide. Can’t you just hear them? “Oh, that’s a good one, Mr. President! Tell us another!”

Now that he’s connecting all of the dots for us, in plain sight, I think it’s time to call him a Russian asset ― who can be played by genuinely smart Russians just as easily as he is by his staff.

Consider his value as a Russian asset, one who has already 1) derided and impeded his own government’s investigation into his campaign’s ties to Russian intelligence; 2) changed his party’s position on Russia’s annexation of Crimea; 3) defended and kept the national security advisor in office for 18 days after learning that he was deeply compromised by Russian intelligence; 4) retained an Attorney General who lied to Congress about his contacts with the Russian Ambassador; 5) disclosed top-secret intelligence to the Russian Ambassador and Foreign Minister that they can almost certainly use to discover the source of the intelligence, thus putting the source at grave personal risk; and 6) likened his own intelligence community to Nazi Germany. From Putin’s perspective, Trump’s only mistake so far is that he’s generating too much pushback. But Putin wins either way: by getting compliant policies or by turning American politics into a nonstop circus.

In his oath of office, the president promised to “faithfully execute the Office of President,” and, “to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Instead, Trump’s making a mockery of the office. Instead of defending the Constitution, he’s acting on behalf of a foreign adversary, and making us less safe every day. Heads Putin wins, tails we lose. It may not be treason, but it sure looks like a “high crime” to me.

NOTE: Just as I published this, news broke about Trump asking Comey to drop his investigation of Michael Flynn. I don’t think it changes any of the above, but I have newfound sympathy for the reporters covering the White House. As soon as they publish, they run the risk of being yesterday’s news.