A word I haven’t heard much of since law school is treason. With all the recent headlines of Donald Trump and the Mueller probe it is a question on people’s minds and a question I have been asked by strangers at baseball games seeing me read deposition transcripts on more than one occasion. Since his Donald Trump’s face to face meeting with Putin in Helsinki has come to light, it has been tossed around the media.  The president appeared to side publicly with the former KGB agent over US interests regarding Russia policy and in trying to sway the 2016 election. If this is in fact true, the question is “Is it treason”? Although it is politically damaging, and although it may be grounds for impeachment, historically and technically the answer would be no this is not treason.

So what is treason? The traditional definition of treason is a crime betraying one’s country.  This dictionary definition is very simplistic. The legal definition was codified at 18 US Code Section 2381 and it states as follows:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” Published June 25, 1948.  https://www.law.cornell.edu/uscode/text/18/2381

There is also a statute known as misprision of treason which is codified at 18 US code section 2382 which states as follows:

Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.” https://www.law.cornell.edu/uscode/text/18/2382 

 It is important to note that aside from treason, there are numerous federal statutes along these lines including conspiracy statutes, and insurrection statutes.   Insurrection is codified at 18 U.S. Code § 2383  and states as follows:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

by enlisting a person is to serve against the United States etc. which Donald Trump could be investigated for by the Mueller probe.

Former CIA director John Brennan called trumps remarks “nothing short of treasonous, and former FBI director James Comey has stated that President Trump “sold out our nation.“

There are prominent law professors who have remarked in interviews on national television that the case could be made to see trumps ask in a treasonous light.  Speaking from a legal perspective trees and has generally been narrowly defined it almost impossible to prove. In fact there have only been a handful of Americans ever convicted of treason and no one has Kim been convicted of the same since 1952.

The founding fathers of this country created a very narrow definition of treason because they were sensitive to the possibility that it would be used to harm political opponents. It is important to point out that the founding fathers them cells were accused of treason against their own British rule.

Article 3 section 3 of the United States Constitution states as follows: “treason against the United States, shall consist only in living war against them, or adhering to their enemies, giving them eight and comfort. No person shall be convicted of treason unless the testimony of two witnesses to the same over act, or confession in open court.“

The legal definition of enemy“ means a country on which the US has declared war or is actively fighting. Versus Russia obviously does not fall into these categories. It could be argued that North Korea does but because there has never been an official end to the Korean War.  Even the former USSR was not legally defined as an enemy because there was no state of war between us. Not a single American citizen has been indicted on charges of treason since the Cold War.

As difficult as it is to stomach, saying bad things about the government, or an acting harmful policies and even choosing the interests of other nations ahead of the US can be legally permissible. For instance some international treaties which of been signed by US president or more beneficial to other countries and even arguably detrimental to American interests. Some legal scholars such as highly respected and recognize Lawrence tribe contend that the US could be construed to be at war with Russia if old-fashioned definition is reinterpreted to include “cyber war“ since Russians are accused of hacking US electoral systems and stealing data in the tent to disrupt the vote. However this is a longshot on a good day.

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Protestors in Pennsylvania, carrying a tax collector, who has been tarred and feathered, through a hostile crowd, during the Whiskey Rebellion of 1794.

Indeed, the first convictions for treason in U.S. history were blatantly political. Two men were found guilty in the aftermath of the so-called Whiskey Rebellion in Pennsylvania in 1794 that was basically a farmer protest against sin taxes on alcohol.

Most famously, Vice President Aaron Burr was acquitted of treason in 1807 after he was charged with plotting to steal land obtained through the Louisiana purchase.

Surprisingly the Civil War produced hardly any charges of treason. Virtually every Southerner was granted amnesty. The U.S. even dropped treason charges against Confederate President Jefferson Davis after he spent two years in prison.

World War One saw another burst of legislation, much like in the 1790s, aimed at stifling dissent.

For three years the administration of Democratic President Woodrow Wilson imprisoned thousands of Americans, censored the media and deported many immigrants who were accused of undermining the war effort. The controversial law expired after the end of the war.

After World War Two, the Japanese-American woman known as “Tokyo Rose” was found guilty of treason in what was the most expensive trial in U.S. history until that time. She had broadcast propaganda during the war encouraging American soldiers to surrender. Her conviction was later overturned because of prosecutorial misconduct.

The last person to be charged with treason was Adam Yahiye Gadahm, an American who joined Al-Qaeda in the early 2000s. Although Al-Qaeda is not a state and Washington never officially declared war, the U.S. was in a virtual state of war with the Islamic organization.

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