A closer look at claims of treason after Trump's meeting with Russian President Putin
President Donald Trump’s news conference with Russian President Vladimir Putin drew sharp rebukes from critics. Some went so far as to call it "treason," or "treasonous."
The New York Daily News headlined its cover, "Open Treason." Rep. Adam Smith of Washington state, the top Democrat on the House Armed Services Committee, tweeted that it was "hard to see" Trump’s actions as "anything other than treason." (Smith later backtracked a bit.)
New York Times columnist Thomas Friedman wrote that "there is overwhelming evidence that our president ... engaged in treasonous behavior." And John Brennan, a career CIA official under several presidents who served as the agency’s director between 2013 and 2017, called Trump’s actions "nothing short of treasonous."
We took a closer look at what the word "treason" actually means. Based on what we know, legal experts say Trump’s actions have not met the strict constitutional definition.
People who consider Trump’s actions to be treasonous focus on the "aid and comfort" of enemies aspect of the constitutional definition. But the full definition is more narrow than that, in a few ways.
The Constitution, which mentions very few crimes specifically, defines treason this way:
"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."
"Saying nice things about the enemy probably doesn’t amount to giving them aid and comfort in the constitutional sense," said Kermit Roosevelt, a University of Pennsylvania law professor. "That’s probably limited to actively supporting their war against the United States. Praising Hitler during World War II, or saying that U.S. should treat him as a friend, would not have been treason."
The framers defined treason narrowly to keep it from being applied to simple difference of opinion, Roosevelt said.
The point "is to avoid the slippery slope" that ends with, "I disagree with your policies, so you are a traitor," he said.
On the most basic level, treason has to occur in wartime, or during an armed rebellion against the government. And with the possible exception of an American working against U.S. troops in a place like Afghanistan, "there is no treason occurring on any side now," Jed Shugerman, a legal historian at Fordham Law School, told us in February.
Calling U.S.-Russia relations "war" is no more accurate than calling the Super Bowl "war" just because the players talk about battle plans and how to attack their enemy, he said.
"We are not at war with Russia under any fair understanding of the word," he said. Shugerman added that even a notion like "cyberwar" with Russia is a metaphor for war rather than an actual deadly conflict — unless that cyberwar were to escalate to, say, hacking into nuclear power plants with the intent of exploding them.
Because the definition of treason is so narrow, charges have only been brought a few dozen times in the country’s history, and few since the end of World War II, which was the last officially declared war. The most recent treason indictment was that of Adam Gadahn in 2006. Gadahn, an American citizen charged with aiding the enemy by being an al-Qaida spokesperson, was killed by a drone strike before he could be put on trial.
Charges of treason have been prosecuted in relation to the Whiskey Rebellion in 1794; against Aaron Burr (who was acquitted); against Thomas W. Dorr, who set up a parallel government of Rhode Island in the 1840s (he was convicted but later pardoned); and a number of cases related to slavery and the Civil War.
There was a flurry of treason cases during and after World War II, including the poet Ezra Pound for pro-Axis propaganda (he was hospitalized for insanity) and the broadcast propagandists known as Tokyo Rose and Axis Sally (both of whom served prison time).
The rarity of treason charges can also be seen in the examples of actions that never drew a treason charge.During the Cold War, Julius and Ethel Rosenberg were convicted of espionage charges, not treason. (Espionage does not have to occur during wartime, or even against an enemy.) And Jane Fonda was never charged with treason for allegations of anti-Americanism when she consorted with the North Vietnamese during the Vietnam War.
Experts were unanimous that what Trump did in Helsinki falls short of the constitutional bar.
"There’s no criminal treason here," said Carlton Larson, a University of California-Davis law professor and author of The Trials of Allegiance: Treason, Juries, and the American Revolution. "Even if one thought the Russian hacking amounted to an act of war, the U.S. has not treated that hacking as an act of war. So until an actual state of war erupts between the United States and Russia, Russia can’t formally be an enemy for purposes of treason law."
Robert F. Turner, a fellow at the Center for National Security Law at the University of Virginia, agreed. "I think what Trump did in Helsinki was outrageous and offensive, but it was not constitutional treason," he said.
The same experts, however, generally agreed that using the term "treasonous" is more plausible. Think of it as the difference between something being "poisonous" as opposed to literally being "poison."
Even though if Trump’s actions didn’t meet the constitutional definition of treason, "I think it is perfectly reasonable to say Trump’s behavior ‘betrayed’ the United States and gave comfort to a major small-e ‘enemy,’" Turner said.
Shortly after the press conference concluded, Larson tweeted, "Because American treason law is so narrowly defined, it is easily possible to betray the country without technically committing the crime of treason. ... Today's events provide another vivid example."
Larson added in an interview that it’s notable that Brennan used "treasonous" in the context of the impeachment standard of high crimes and misdemeanors. "There’s a whole range of behavior that may not be technically treason, but nonetheless is sufficiently disturbing, and indicative of potential disloyalty, that treason comes readily to mind as an analogy," he said.
Part of the problem, Larson said, is that "we don’t have a good word for this kind of behavior — clear betrayals of the country that nonetheless don’t technically constitute treason."
CORRECTION, July 23, 2018: This article has been updated to reflect that the most recent treason indictment was that of Adam Gadahn in 2006.