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Social media platforms have lit up recently with various combinations of the words "treason" and "Trump." But there’s less to the rhetoric than meets the eye.
One prominent example making the rounds comes from the aggregation site Realtime Politics. A recent post was headlined, "BREAKING: Democrats Filing TREASON Charges Against Trump, McConnell, Giuliani, & Comey MONDAY MORNING" (That would be President-elect Donald Trump, Senate Majority Leader Mitch McConnell, former New York City mayor and Trump supporter Rudy Giuliani, and FBI Director James Comey.)
The article begins, "Following the news that the CIA has determined Russia was involved in swaying the election for Donald Trump, both Democratic and REPUBLICAN senators are calling for an investigation into the Russian cyber-attacks that interfered with the presidential election. Four senators issued a statement, Chuck Schumer (D-New York), Jack Reed (D-Rhode Island), John McCain (R-Arizona), and Lindsey Graham (R-South Carolina). ...
"Now a group of Democrats plans to file treason charges against Trump, and others that knew about Russia's interference in the election. The group, democraticcoalition.org, announced their plan on Twitter."
So what’s happening here?
As we were preparing our fact check, the page in question appears to have been taken down, replaced by a "404 error" message. But similar headlines have also surfaced on such sites as Bipartisan Report and New Century Times.
We should start by noting that that none of the senators cited in the Realtime Politics article, despite their criticism, have filed any treason "charges" (and it’s not clear that they could in any case).
Rather, the story is based on a Dec. 11 tweet by a Democratic strategist and fundraiser, Scott Dworkin, who is advising the Democratic Coalition Against Trump, an advocacy group founded earlier this year.
In the tweet, Dworkin wrote, "Breaking: We are filing complaints for treason tmrw on Trump, McConnell, Giuliani & James Comey. #DworkinReport #TrumpLeaks Russians #AMJoy
Dworkin did not reply to a call from PolitiFact or an email sent to the firm he founded, Bulldog Finance Group, so we don’t know whether he actually filed a complaint on Dec. 12 -- or, perhaps more important, what kind of complaint it was.
But if Dworkin did file a complaint, it wouldn’t have carried much legal weight. Treason is a serious crime that is cited by name in the Constitution, so an ordinary member of the public can’t file "charges" over treason on their own.
"Private citizens can’t initiate prosecution," said Kermit Roosevelt, a University of Pennsylvania constitutional scholar. All they could do is "tell some federal prosecutor that they think a crime has been committed," Roosevelt said. It would then be up to the prosecutor and their superiors to determine whether to proceed -- a move that would not be taken lightly.
A previous complaint filed by Dworkin was somewhat more logical.
As our friends at Snopes.com have outlined, Dworkin on Oct. 28, 2016, wrote a letter to the Justice Department’s Office of Professional Responsibility, requesting that the office open an investigation into possible violations of the Hatch Act by Comey, who many Democrats blamed for airing allegations about Hillary Clinton’s emails late in the presidential campaign.
The Office of Professional Responsibility is a Justice Department unit "responsible for investigating allegations of misconduct" involving Department attorneys and law-enforcement personnel that "relate to the exercise of their authority to investigate, litigate or provide legal advice, as well as allegations of misconduct by law enforcement personnel when related to allegations of attorney misconduct," according to the office’s web page.
So the complaint to the Office of Professional Responsibility about Comey at least made some sense, even though experts have previously told PolitiFact that Comey’s potential to be prosecuted under the Hatch Act is uncertain at best.
But accusing anyone -- much less the president-elect and other high officials -- of treason represents a whole other level, experts said.
For treason, there is "a high bar for prosecution, because such prosecutions were common under the King of England, and the founders wanted to protect against frivolous allegations," said Brett Kappel, an attorney specializing in government ethics at the law firm Akerman. Not surprisingly, Kappel said, the resulting statute on treason "has been narrowly construed in keeping with the founders’ concerns."
Experts agreed that since the treason statute refers to "giving aid and comfort" to "enemies" of the United States, initiating a prosecution -- to say nothing of winning a conviction -- is a steep climb.
The statute, Kappel said, has long been interpreted to refer to "states with which the Unites States was then at war – not merely states that are in some way hostile to the United States. … Since we are not currently at war with Russia, there is no legal basis for a treason complaint. For that reason, the Justice Department is unlikely to act on any such complaint."
Roosevelt agreed. "Russia doesn’t meet that criterion," he said. The complaint "sounds empty to me," he added.
Realtime Politics, echoing posts elsewhere, headlined an article, "Democrats Filing TREASON Charges Against Trump, McConnell, Giuliani, & Comey."
It’s unclear whether such a request has been made, but calling the complaints "charges" is wrong. Only prosecutors, not ordinary Americans, can file "charges." Moreover, experts told us that the likelihood of actual criminal charges for treason being filed are small, at least given what’s known about the evidence so far. Among other things, treason has historically been judged to require a state of war, something that does not currently exist between the United States and Russia. We rate the statement False.https://www.sharethefacts.co/share/4ffad66d-8f2c-4e64-8167-2eb3954ec349
Realtime Politics, "Democrats Filing TREASON Charges Against Trump, McConnell, Giuliani, & Comey," Dec. 11, 2016
Justice Department Office of Professional Responsibility, web page, accessed Dec. 15, 2016
Snopes.com, "Anti-Trump Super PAC Claims Complaint Filed Against James Comey Over E-Mail Investigation," Oct. 28, 2016
Snopes.com, "A Charge of Reason," Dec. 12, 2016
PolitiFact, "What is the Hatch Act, and what does it have to do with James Comey?" Oct. 31, 2016
Email interview with Kermit Roosevelt, law professor at the University of Pennsylvania, Dec. 15, 2016
Email interview with Brett Kappel, attorney specializing in government ethics at the law firm Akerman, Dec. 15, 2016
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