The Constitution: Treason Doesn't Mean What You Think It Means
Several people, who had been otherwise thoughtful and reasonable until the Trump Derangement Syndrome got them, responded to Clapper's and Yates's testimony on the 8th with variants of:
OMG Yates proved it! Flynn and the Trump campaign committed TREASON!
You all may remember from a few weeks ago that this is one of my pet peeves. My peevishness has not improved. In fact, I think at this point that we should just declare a Verbot on the word "treason" much as with the word "Nazi." No one seems to know what it means, and using it just adds Dummheit to any conversation in which it appears.
Yeah, no chance, I know. So let's at least explain what it means and, hopefully, why bandying the word about thoughtlessly is misleading at best, and dangerous at worst.
First, there's a reason that treason is the only crime fully defined in the Constitution. Here's the definition, from Article III Section 3:
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.
(The Constitution also gives Congress the power to punish counterfeiting and piracy, but leaves the definition and punishment to Congress.)
The founders had good reason to be concerned about the definition of treason, since they had arguably committed both simple and high treason against the Crown not many years before. They also had a good bit of recent (for them) history of the use of accusations of treason politically. As "Publius" (James Madison) said in the Federalist paper #43:
"As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. 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 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, the founders established a very narrow definition of treason in the Constitution specifically because accusations of treason have been the weapons "violent factions" — that is, political parties — have used to punish their opponents.
The Supreme Court has needed to examine this a few times. In the 1807 case Ex Parte Bollman, Justice Marshall wrote:
To constitute that specific crime [of treason] war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason.
So, unless you're prepared to argue that Flynn or Trump is actually taking up arms against the U.S., you're not going to have much luck convicting them of treason. Nor is "adhering to an enemy" going to do any better.
In fact, nothing that was talked about in Clapper's and Yates's testimony has any hint of treason — except to the tinfoil hat brigade who don't actually care what the facts are, as long as they can continue in their addled fantasy of impeaching Trump and everyone else in the White House down to the butler and the cook.
What do we know from their testimony? Both the ex-DNI and Yates said there was no evidence of collusion. We know that Flynn talked to the Russian Ambassador. Guess what? As incoming NSA that's part of his job. We know that he talked to the ambassador and the topic of the sanctions came up. And guess what? That isn't illegal, with the possible exception of the Logan Act, which was passed at the same time as the Alien and Sedition Acts, for which only one person has ever been indicted and no one prosecuted.
Second, we need to be very careful about adopting a more flexible definition — even if the Constitution allowed it.
Why? Because that would open up pretty much anyone who disagrees with the government vigorously over an international issue to be liable to a charge of treason. Are you ready to see Jane Fonda tried for treason for what she did in the Vietnam War? Jim McDermott, David Bonior, and Mike Thomson for the trip to Iraq in 2002 that was paid for by Iraq? Nancy Pelosi visiting Assad in 2007? Republican senators for their open letter criticizing the Iran nuke deal?
If we start getting sloppy with the definition of treason, that's where we would be headed. And that's the real risk here. In my first treason article, I included a silly and annoying Obama meme. But there's no reason it couldn't be a Trump meme as well.
If we start really believing that even strong disagreement is treason we're heading down a dangerous path. Remember what the penalty for treason is: when you accuse someone of treason for a political disagreement, you are — by the very nature of the accusation — suggesting they should die for that disagreement.
That's been tried in many places, many times. A whole lot of people have found that you really can lose your head over politics.