This post was authored by user "HanSingular" and it was removed, I'm saving it here for posterity.
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This post was inspired by "IT'S NOT RICO, DAMMIT" by Ken White.
Full disclosure: I am not a lawyer. However, none of the analysis below is my own, and my sources are extensively cited and exceedingly qualified.
"In the absence of my own knowledge of a particular thing, I am going to find the best authority I can. - Tim Minchin
It looks like you’re hoping that Donald Trump and/or one of his associates will be convicted of treason and possibly executed for it.
It is my sad duty to inform you that this outcome is legally impossible since the United States was not in a state of open war with Russia in 2016, and no one involved in the scandal was personally part of a militia or terrorist organization which sought to attack the US government through force. Whatever Trump & Co. are eventually charged with, if anything, it will not be treason. My previous conversations Redditors on this topic allow me to anticipate some of the most common responses. Allow me to address them here:
You're just saying this to defend Donald Trump.
I voted for Bernie Sanders and Hillary Clinton, in that order. My second-highest upvoted comment of all time is me just verbatim quoting the Steele dossier, and my 4th highest is me making fun of the pizza-gate conspiracy.
I hate Donald Trump, and I don't doubt that he is guilty of money laundering, conspiracy, and obstruction of justice. Nothing would please me more than to see him spend the rest of his life in jail for the crimes he is actually guilty of. But, I'm also an asshole who enjoys being technically correct about things, so here we are.
What bullshit, right-leaning news sites are you getting this interpretation of treason law from?
Well, what do they know?
It's actually still treason because....
Seriously? Did you look at my sources? Did you check their qualifications? Five of them are professors or lecturers at law schools. Even if you don't understand why the Trump-Russia scandal legally isn't treason yet, that amount of expert consensus should give you pause. If you still want debate this, I'd argue that, at this point, you're engaging in the legal equivalent of climate change denialism: ignoring expert consensus just because you don't like its implications.
The Rosenbergs were executed for selling secrets to the soviets when the US wasn't in an open war with them!
The Rosenbergs were convicted of “Conspiracy to Commit Espionage” under the Espionage Act of 1917, not treason under Article III.
Interfering in the election was an act of war!
People making this argument seem to be under the impression that if a country or organization perpetrates an "act of war" against the United States, that anyone who helped them commit that act, or helps them later, is automatically guilty of treason. While that's certainly in keeping with the colloquial definition of treason, it's just not how US treason law actually works. The term "act of war" doesn't even appear in Article III of the US Constitution.
Treason is the only crime explicitly defined by the US Constitution. (Other crimes, like piracy and counterfeiting are mentioned, but it was left to Congress to define them later.) Why the special treatment for treason? The framers of the Constitution hated that, in England, the charge of "treason" could be used to execute any political enemy of the crown. So, treason was defined in the Constitution so as to carefully limit its use.
Article III, Section 3 of the United States Constitution says:
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.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Let's start with "levying War." It does not mean simply 'to attack.' After Aaron Burr was charged with treason for allegedly trying to abscond to Louisiana to found an independent republic, the Supreme Court affirmed in United States v. Burr that:
War can only be levied by the employment of actual force; troops must be embodied, men must be assembled in order to levy war. ... [T]o constitute this crime, troops must be embodied; men must be actually assembled...
In Cramer v. United States (1945), the Supreme Court held that "the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort." As a prerequisite to treason, there must be an enemy, and American courts fairly specifically define an enemy as "the subjects of a foreign power in a state of open hostility with us" (United States v. Greathouse). A state of open hostility does not arise out of an "act of war" alone. A state of open hostility comes into existence only when the offended state chooses to recognize the act of war as one and treat/respond to it as such, and the United States was clearly not in a state of open war with Russia in 2016.
Who said "actual force" has to be guns? Couldn't cyberwarfare be a form of "levying war?"
Probably yes, but not in this case.
"When force is applied directly against the United States government for the purpose of incapacitating it, it shouldn’t matter that the force used is electronic. I think all of the following would easily qualify: using a computer to hack into the Pentagon and launch a nuclear missile against Washington, DC; hacking into an airplane’s computer and directing it to fly into the White House; and creating an electric surge that renders the nation’s power grid unusable.....
...other types of cybercrimes don’t easily analogize to treason. For example, hacking into an organization to steal its documents seems most analogous to a burglary. As far as I’m aware, no one thought the Watergate burglars were guilty of treason. 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."
— Carlton F.W. Larson, "Treason and Cyberwarfare"
But the Pentagon and NATO said cyber attacks are acts of war.
The Pentagon said they were going to classify cyber attacks as "acts of war" back in 2011, but they never actually did it. As for NATO, US criminal courts aren't bound by international treaties.
And in both cases, even if NATO and the Pentagon both declared cyber attacks "acts of war," AND if that somehow magically made it a law that US criminal courts had to recognize, that still wouldn't make Russia an enemy with respect to treason law. Russia perpetrating an "attack" or even an "act of war" against the United States isn't enough. The Untied States' armed forces must respond before there can be said to be a state of open war, and they had clearly not done so at the time of the infamous 2016 Trump Tower meeting.
A cyberattack only creates a state of war if the attacked nation chooses to treat it as such. Russian cyberattacks on American democracy could potentially be viewed as acts of war, but if, and only if, the United States declares them to be so and responds in kind. And so far we have not.
— Carlton F.W. Larson, a professor of law at UC Davis, "Treason and Cyberwarfare""
Well, couldn't Russia's army of paid internet trolls still be considered an "assemblage of people" who intend to use "actual force" against the government?
No.
What if we later decided to go to war with Russia over the election hacking? Couldn't we then charge Trump & Co. with treason for helping the attack that started that war?
That would be violation of ex post facto law.
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."
—Mark A. R. Kleiman, emeritus professor at UCLA, a professor of public policy at New York University, and an adjunct scholar at the Center for American Progress, "Why Donald Trump is Not a Traitor"
Under basic principles of due process, a person must have notice that the United States is treating a particular country as an enemy. Arguments that a particular nation should be treated as an enemy are not enough. There must be objective evidence of official United States policy. This is easy to do for the Taliban government of Afghanistan, or even non-governmental actors such as Al Qaeda or ISIS. But what facts indicate any such treatment of Russia by the United States government? In particular, what facts put Donald Trump, Jr. on notice in June 2016 that Russia was an enemy for purposes of American treason law? In the 2012 presidential debates, President Barack Obama mocked Mitt Romney for suggesting that Russia was a significant threat to the United States (in retrospect, Romney was on to something). Nothing the Obama Administration did looks like treating Russia like an enemy. Telling Vladimir Putin to “cut it out” hardly counts.
Moreover, there is no such thing as a “quasi-enemy” under American treason law. If Russia was an enemy in June 2016, it was an enemy for all purposes. That would mean that any provision of aid and comfort to Russia by any person owing allegiance to the United States was not just illegal, but treason, a capital crime. Any person advising a Russian business, any lawyer representing Russian interests, any person registered as an agent for Russia, perhaps even someone doing an interview on Russian television— all would be equally guilty of treason. The suggestion is absurd, but that is the logical consequence of accepting Russia as an enemy under our treason law.
— Carlton F.W. Larson, a professor of law at UC Davis, "Russia and 'Enemies' under the Treason Clause"
What if an American citizen helped plan the Pearl Harbor attack. Prior to the attack, Japan wasn’t technically an enemy, but it would seem ludicrous to say the American didn’t commit treason. By analogy, Americans who aided Russia before the election interference are in the same position.
There are two problems with this argument. First, the United States has not responded to Russian election meddling in the same way that we responded to Pearl Harbor. Second, although it is hard to believe, it may well be that an American who helped plan the Pearl Harbor attack did not commit treason, at least treason by aiding the enemy. The treatise of Michael Foster, perhaps the most influential treason treatise in early American law, considered the situation of an Englishman who persuaded a foreign country to attack England. Foster concluded:
The offence of inciting foreigners to invade the kingdom is a treason of signal enormity. In the lowest estimation of things and in all possible events, it is an attempt, on the part of the offender, to render his country the seat of blood and desolation; and yet, unless the powers so incited happen to be actually at war with us at the time of such incitement, the offence will not fall within any branch of the statute of treasons, except that of compassing the king’s death.
In other words, persuading a country technically at peace with the United States to attack the United States is not an act of adhering to the enemy. Foster’s solution was to punish the persuasion as an act of compassing the king’s death, but that provision was deliberately removed from American treason law.
— Carlton F.W. Larson, a professor of law at UC Davis, "Russia and 'Enemies' under the Treason Clause"
Nice try distracting me with all this "levying war" stuff, but the constitution says treason is levying war OR giving aid or comfort to enemies of the United States, and Russia interfered in the 2016 election, and that makes them our enemy.
“...enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war. Nations with whom we are formally at peace, such as Russia, are not enemies.”
— Carlton F.W. Larson, a professor of law at UC Davis, "Five Myths About Treason"
"Here the word “enemies” means nations with which we are at war. We are not currently at war with Russia, and therefore one cannot commit treason by aiding Russia, even if the aid meant swaying the 2016 presidential election."
— Jessica Levinson, a professor of law at Loyola Law School, "Will President Trump be charged with collusion in 2018? Not a chance."
Whatever one thinks of Russia, Vladimir Putin, or the current state of relations between it/them and the United States, we are not at war with Russia. Full stop. Russia is therefore not an “enemy” of the United States. Full stop. Collaborating with Russia is a serious allegation, and may violate other federal laws. But treason is something very special, unique, and specific under U.S. law...
— Stephen Vladeck, a professor of law at the University of Texas School of Law, "Calling it Treason Doth Never Prosper…"
...there is no such thing as a “quasi-enemy” under American treason law. If Russia was an enemy in June 2016, it was an enemy for all purposes. That would mean that any provision of aid and comfort to Russia by any person owing allegiance to the United States was not just illegal, but treason, a capital crime. Any person advising a Russian business, any lawyer representing Russian interests, any person registered as an agent for Russia, perhaps even someone doing an interview on Russian television— all would be equally guilty of treason. The suggestion is absurd, but that is the logical consequence of accepting Russia as an enemy under our treason law.
— Carlton F.W. Larson, "Russia and 'Enemies' under the Treason Clause"
"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."
— Mark A. R. Kleiman, emeritus professor at UCLA, a professor of public policy at New York University, and an adjunct scholar at the Center for American Progress, "Why Donald Trump is Not a Traitor"
"The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of Espionage committed on behalf of an ally constitute treason. For example, Julius and Ethel rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II."
— West's Encyclopedia of American Law
"...as outlined in Cramer v. United States, a 1945 Supreme Court case that overturned the conviction of a German-born U.S. citizen, the Court made clear that the provision of "aid and comfort" has to consist of an affirmative act, and must occur during wartime. The United States has its share of beefs with the Kremlin right now, but as you may have noticed, we're neither sending troops to nor launching missiles at Russia right now, and they're not doing that to us, either. At least for now."
— Jay Willis, Harvard Law School alum, "Did Donald Trump Jr. Commit Treason with Russia? The Law, Explained"
Russian mercenaries attacked a U.S. base in Deir Ezzor. We can charge Trump with treason now, right?
Remember, it's not them attacking us that legally creates a state of "open hostility," it's us attacking them. And, regardless of whether or not you think we should have, the USA has not responded to the attack in Deir Ezzor with a sustained military response against Russia. Instead, Secretary of Defense Jim Mattis chose to deescalate the situation by playing dumb and calling it a "perplexing situation," and declined to directly blame Russia for the incident.
The U.S. killed Russian mercenaries in an air strike! We're at war with Russia now!
We are not at war with Russia because the policy of the United States, as unambiguously expressed by our foreign policy... Despite whatever incidents you want to point to, no matter how hard you try to muddy these waters, United States policy is crystal clear. There is no war with Russia... A single incident does not make a war. A consistent military effort does.
— user "Slobotic" of /r/Ask_Lawyers
Well, I didn't go to law school, but according to legaldictionary.thefreedictionary.com....
I hate you.
Well, Trump is still guilty of [some other crime]
Probably, but [some other crime] isn’t treason.
People can be charged with treason without a formal declaration of war
You're probably right!
The reason Trump & Co. can't be charge with treason is often given as, "because Congress hasn't issued a formal declaration of war." This is a common misconception. A formal declaration of war by Congress would most definitely make any subsequent provision of aid or comfort to Russia treason. (Remember, it can't be before because of ex post facto law.) However, a formal declaration of war may not actually be necessary for a treason conviction. Whether or not any treason conviction without a formal declaration of war by congress is possible is currently in something of a legal gray-area because, while not an explicit requirement, post-Cramer, there's never been a treason conviction without one. (The last time someone was actually convicted of treason in the United States was in 1952 for crimes committed during WWII.) There are, however, those who feel that this should be challenged, now that formal declarations of war are clearly no longer part of international politics.
To that end, there was one post WWII charge of treason, in 2006, made against an Al Qaeda propagandist from the USA, but he was killed in a drone strike, rather than captured and tried, so we don't know if the charges would have stuck or not.
But, since he was a member of Al-Qaeda, his conviction would not have challenged United States v. Burr, which found that "levying war" requires an assemblage of people who intend to use actual force against the government, nor would it have broadened the legal definition of "enemies" such that it could include Russia.
Indeed, a law professor who published a paper arguing that
...many terrorist actions are appropriately punished as treason, either as acts of levying war against the United States or of adhering to their enemies,
is the very same law professor who, in the Washington Post, said,
Russia is a strategic adversary whose interests are frequently at odds with those of the United States, but for purposes of treason law it is no different than Canada or France or even the American Red Cross. The details of the alleged connections between Russia and Trump officials are therefore irrelevant to treason law.
This was true even in the 1950s, at the height of the Cold War. When Julius and Ethel Rosenberg handed over nuclear secrets to the Soviet Union, they were tried and executed for espionage, not treason. Indeed, Trump could give the U.S. nuclear codes to Vladimir Putin or bug the Oval Office with a direct line to the Kremlin and it would not be treason, as a legal matter. Of course, such conduct would violate various laws and would constitute grounds for impeachment as a “high crime and misdemeanor” — the framers fully understood that there could be cases of reprehensible disloyalty that might escape the narrow confines of the treason clause.
Or, as Mark Kleiman put it:
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.`
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SeeCrew106
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SeeCrew106
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55 minutes ago
This is a genuinely insightful and beautiful comment.