No, aid­ing Rus­sia and leak­ing to the me­dia don’t count.

Pres­i­dent Trump promised to do things dif­fer­ently, but the res­ig­na­tion of a na­tional se­cu­rity ad­viser un­der a cloud of sus­pi­cion of trea­son was novel even by Trump stan­dards. The po­lit­i­cal (and so­cial me­dia) land­scape is now lit­tered with ac­cu­sa­tions of t

The Washington Post Sunday - - OUTLOOK - By Carl­ton F.W. Lar­son clar­son@uc­davis.edu Carl­ton F.W. Lar­son is a pro­fes­sor of law at the Univer­sity of Cal­i­for­nia at Davis and is writ­ing a book about trea­son and the Amer­i­can Rev­o­lu­tion.

MYTH NO. 1 Dis­loy­alty or poli­cies that harm the United States are trea­son.

Ac­cu­sa­tions of trea­son have re­cently been made on the flim­si­est of grounds, from as­ser­tions that Pres­i­dent Barack Obama com­mit­ted trea­son by sup­port­ing the Iran nu­clear deal (found in James McCor­mack’s book “Un­ex­pected Trea­son”) to claims that, per Paste magazine, Sen. John McCain com­mit­ted trea­son be­cause he threat­ened not to con­firm a Supreme Court jus­tice hy­po­thet­i­cally nom­i­nated by Hil­lary Clin­ton.

The framers of the Con­sti­tu­tion took de­lib­er­ate steps to en­sure that trea­son tri­als would not be used as po­lit­i­cal weapons against op­po­nents. Ar­ti­cle 3, Sec­tion 3 de­fines the crime very nar­rowly: “Trea­son against the United States shall con­sist only in levy­ing war against them, or in ad­her­ing to their en­e­mies, giv­ing them aid and com­fort.” This lan­guage is drawn from an English statute from 1351 that was also in­tended to limit the scope of trea­son. Speak­ing against the gov­ern­ment, un­der­min­ing po­lit­i­cal op­po­nents, sup­port­ing harm­ful poli­cies or even plac­ing the in­ter­ests of an­other na­tion ahead of those of the United States are not acts of trea­son un­der the Con­sti­tu­tion.

MYTH NO. 2 Aid­ing Rus­sia is trea­son against the United States.

Stephen Col­bert’s re­cent seg­ment “Michael Flynn’s White House Ten­ure: It’s Funny ’Cause It’s Trea­son” was but one of many ac­cu­sa­tions of trea­son hurled against Flynn and other White House as­so­ciates be­cause of their proven or al­leged ties to Rus­sia. “Con­sider the ev­i­dence that Trump is a traitor,” ex­horted an es­say in Sa­lon. It is, in fact, trea­son­able to aid the “en­e­mies” of the United States.

But 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. (In­deed, a trea­son pros­e­cu­tion nam­ing Rus­sia as an enemy would be tan­ta­mount to a dec­la­ra­tion of war.) 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.

So who are the cur­rent en­e­mies of the United States? North Korea is a pos­si­ble enemy, since the Korean War was never for­mally con­cluded. Cer­tain non­state ac­tors can also count as en­e­mies, and ter­ror­ist groups such as al-Qaeda and the Is­lamic State prob­a­bly fit the def­i­ni­tion.

MYTH NO. 3 Leak­ing clas­si­fied ma­te­rial or han­dling it slop­pily is trea­son.

Shortly be­fore Elec­tion Day in Novem­ber, the Repub­li­can chair­man of the House Home­land Se­cu­rity Com­mit­tee, Rep. Mike McCaul, claimed that Clin­ton had com­mit­ted trea­son by mis­han­dling clas­si­fied email. Ed­ward Snow­den has been de­nounced as a traitor for leak­ing clas­si­fied doc­u­ments, as have the in­tel­li­gence of­fi­cials who may have leaked dam­ag­ing ma­te­rial about Flynn. The Con­ser­va­tive Daily Post pointed to “traitor moles nes­tled within the new ad­min.”

But none of these ac­tions amounts to levy­ing war against the United States, as that of­fense re­quires some use of force in an at­tempt to over­throw the gov­ern­ment. No such force or in­tent is present in any of these sce­nar­ios. Nor do the ac­tions con­sti­tute aid­ing the enemy. Leak­ing in­for­ma­tion to news­pa­pers is not pro­vid­ing aid to “en­e­mies.” This news­pa­per and oth­ers, what­ever Trump might think of them, are not en­e­mies of the United States. As with aid to Rus­sia, such leaks might vi­o­late other pro­vi­sions of fed­eral law, but they are not trea­son.

MYTH NO. 4 Only U.S. cit­i­zens can com­mit trea­son against the U.S.

Even well-trained con­sti­tu­tional lawyers have some­times re­peated this myth. In his other­wise ex­cel­lent book “Con­sti­tu­tional Faith,” for in­stance, San­ford Levin­son writes that trea­son “can be com­mit­ted only by a cit­i­zen.”

But the of­fense of trea­son can be com­mit­ted by any per­son who owes al­le­giance to the United States, and this can in­clude nonci­t­i­zens. Trea­son law rec­og­nizes two kinds of al­le­giance: per­ma­nent and tem­po­rary. U.S. cit­i­zens owe per­ma­nent al­le­giance to the United States, and this duty car­ries with them wher­ever they go in the world. By con­trast, nonci­t­i­zens in the United States (other than am­bas­sadors and their staffs) owe a duty of tem­po­rary al­le­giance, the Supreme Court found in an 1872 case. While they are within the United States and re­ceiv­ing pro­tec­tion from it, nonci­t­i­zens are governed by Amer­i­can trea­son law. If a per­son on a green card or a stu­dent or tourist visa, for ex­am­ple, wages war against the United States or pro­vides aid and com­fort to our en­e­mies, he can­not es­cape a trea­son pros­e­cu­tion sim­ply by assert­ing his for­eign cit­i­zen­ship.

Un­der this law, there is a strong ar­gu­ment that the 9/11 hi­jack­ers com­mit­ted trea­son by levy­ing war against the United States. When a nonci­t­i­zen leaves the coun­try, how­ever, the duty of tem­po­rary al­le­giance dis­ap­pears.

MYTH NO. 5 Very few Amer­i­cans have com­mit­ted trea­son.

No per­son has been ex­e­cuted for trea­son by the fed­eral gov­ern­ment un­der the Con­sti­tu­tion. The small hand­ful of peo­ple who have been con­victed of the of­fense at the fed­eral level — such as two mil­i­tants from the Whiskey Re­bel­lion and sev­eral peo­ple af­ter World War II — have mostly been par­doned or re­leased. So we are some­times told that trea­son has been “rare” in the United States.

Hardly. Dur­ing the Amer­i­can Rev­o­lu­tion, the re­belling Amer­i­cans were all com­mit­ting trea­son against Bri­tain. Sim­i­larly, the thou­sands of Amer­i­cans who ac­tively aided the Bri­tish com­mit­ted trea­son against the United States. In the Civil War, the hun­dreds of thou­sands of men who fought for the Con­fed­er­acy all levied war against the United States, as did the peo­ple who aided and abet­ted the re­bel­lion.

Nei­ther the Amer­i­can Rev­o­lu­tion nor the Civil War led to mass ex­e­cu­tions. At the end of the day, the spirit of rec­on­cil­i­a­tion pre­vailed, and the vic­tors al­lowed the van­quished to re­turn home peace­fully. But it re­mains the case that many Amer­i­cans have a traitor lurk­ing some­where in their fam­ily tree.

JABIN BOTS­FORD/THE WASH­ING­TON POST

Ac­cu­sa­tions of trea­son fol­lowed re­ports of for­mer na­tional se­cu­rity ad­viser Michael Flynn’s con­ver­sa­tions with the Rus­sian am­bas­sador.

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