Charg­ing trea­son and ruin­ing a repub­lic

Trea­son is de­fined very clearly in the Con­sti­tu­tion, and Don­ald Trump Jr.’s ac­tions don’t come close

The Washington Times Weekly - - Commentary - By Stephen B. Presser

The lat­est noth­ing­burger ablaze on the me­dia grill is that Don­ald Trump Jr. may have com­mit­ted trea­son when he met with a woman he be­lieved to be an agent of the Rus­sian gov­ern­ment who claimed to pos­sess in­for­ma­tion that Hil­lary Clin­ton had col­luded with that coun­try. Aside from the ob­vi­ous im­pli­ca­tion that it might well be Mrs. Clin­ton who was act­ing ad­versely to the in­ter­ests of the United States, and not Don­ald, Jr. (and just such a charge was levied by Peter Sch­weizer in his book “Clin­ton Cash: The Un­told Story of How and Why For­eign Gov­ern­ments and Busi­nesses Helped Make Bill and Hil­lary Rich” (2015)), those charg­ing Don­ald, Jr. with trea­son be­tray an as­ton­ish­ing lack of un­der­stand­ing of the term.

“Trea­son” is de­fined in the United States Con­sti­tu­tion as two things, and two things only. Th­ese are (1) levy­ing war against the United States and (2) giv­ing aid and com­fort to the coun­try’s en­e­mies. No one sug­gests that Don­ald Jr. was mak­ing war against us, so pre­sum­ably it is the “giv­ing aid and com­fort to the coun­try’s en­e­mies” that is in­volved here.

It is, of course, a nice ques­tion whether Rus­sia is or was an en­emy of the United States, and that coun­try be­came, af­ter all, one of our staunch­est al­lies in World War II. True it is that fol­low­ing World War II, we fought a “cold war” with the Soviet Union, as that be­he­moth (which no longer ex­ists) sought to im­pose com­mu­nism on the whole world.

Per­haps Rus­sia’s leader, Vladimir Putin, would still like to re­duce the in­flu­ence of the United States around the globe, and mag­nify Rus­sia’s, but it has never made much sense to sug­gest that pre­fer­ring Don­ald Trump to Hil­lary Clin­ton was the means to do that.

Since Pres­i­dent Obama and Hil­lary Clin­ton were in­volved in a “re­set” of re­la­tions with Rus­sia de­signed to re­duce in­ter­na­tional ten­sions, it seems more likely that Mr. Putin would have pre­ferred eight more years of the Obama ad­min­is­tra­tion (wholly apart from the fa­vor­able terms on the Ura­nium sale to Rus­sian in­ter­ests which Mr. Sch­weizer de­scribes) which is what Mr. Putin would have got­ten with the elec­tion of Mrs. Clin­ton. He should have been root­ing for her, not for Don­ald Trump.

Per­haps that should have made Mr. Trump, Jr. hes­i­tate be­fore meet­ing any­one who pur­ported to be con­nected to the Rus­sian gov­ern­ment, but all of that misses the larger point about the silli­ness of in­vok­ing trea­son against the son of the pres­i­dent. Per­spec­tive is al­ways cast on the present by look­ing to the past and, in par­tic­u­lar by try­ing to un­der­stand the con­cerns of our framers.

As it turns out, those who put to­gether the Con­sti­tu­tion were deeply con­cerned with the abu­sive pros­e­cu­tion of trea­son by the Bri­tish gov­ern­ment. It was their un­der­stand­ing that “con­struc­tive trea­son” was the scourge of Bri­tish sub­jects. Thus, there was a no­tion called “com­pass­ing the death of the King” that was un­der­stood to be the cap­i­tal crime of trea­son. Ac­cord­ingly, if one ever ut­tered any­thing that could be con­strued as a threat to the sov­er­eign, one could be swiftly and fi­nally ter­mi­nated with ex­treme prej­u­dice.

This hap­pened, for ex­am­ple, in the time of the ab­so­lute monar­chy of the Tu­dors, when an innkeeper of a pub known as the “Sign of the Crown,” told his son that one day he would be heir to the Crown, and also to a yeo­man whose fa­vorite deer had been killed by the king in a hunt, when the yeo­man wished that his stag’s horns were “in the King’s belly.” It was to avoid abuses like those which re­sulted in the con­sti­tu­tional re­stric­tions, which also de­manded proof by two wit­nesses of the overt acts which con­sti­tuted trea­son.

Don­ald Jr.’s mo­tives were, ob­vi­ously, to help the cam­paign of his fa­ther and to ex­pose wrong­do­ing on the part of Mrs. Clin­ton, if it ex­isted. There is not the slight­est sug­ges­tion that he was an en­emy of his coun­try, or a friend to its en­e­mies. To sug­gest oth­er­wise is to en­gage in the li­cen­tious­ness of the press that the framers also be­lieved was one of the best ways to ruin a repub­lic.

Per­haps Rus­sia’s leader, Vladimir Putin, would still like to re­duce the in­flu­ence of the United States around the globe, and mag­nify Rus­sia’s, but it has never made much sense to sug­gest that pre­fer­ring Don­ald Trump to Hil­lary Clin­ton was the means to do that.

Stephen B. Presser is the Raoul Berger Pro­fes­sor of Law Emer­i­tus at North­west­ern’s Pritzker School of Law and the au­thor of “Law Pro­fes­sors: Three Cen­turies of Shap­ing Amer­i­can Law” (West Aca­demic Pub­lish­ing, 2016).

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