Santa Fe New Mexican
Congress has power to levy allegations of treason
When former Special Counsel Robert Mueller testified before Congress regarding his report on Russian interference in our elections and acts of indictable conspiracy, Rep. Doug Collins, R-Ga., stated that “collusion” is not an offense in criminal law. Robert Mueller agreed. But when Collins claimed “collusion” and “conspiracy” are essentially the same thing, Mueller said, “No.”
“Conspiracy,” (from the Latin “breathe together”), understands that conspiracy has as its goal an illegal act, which, when discovered, is punishable by law.
When that act is to subvert the government in which the actor has pledged loyalty as a citizen, then “conspiring to subvert” the laws of one’s country is called “treason.”
Concern for treasonous actions has
long history. In England in 1351, under Edward III, the king and state were synonymous. And that was the year in which the British codified the concept of “treason” — which is still in play in their legal system and which Americans as revolutionaries who broke from England found useful to include in our establishing documents.
Perhaps the 1351 British codification of “treason” could be useful in understanding the case against Trump’s former national security adviser Michael Flynn, if not others yet to be indicted.
Seven actions in 1351 England were defined as high treason. The one most relevant to the Flynn case would be when a person: “adhered to the King’s enemies in his Realm, giving them aid and comfort in his Realm or elsewhere.”
We may not have a king, but our U.S. Constitution defines our “realm.” Our state is unique because it is led by laws, not a sole individual. Our Constitution incorporates a concern for treasonous behavior, inherited from the British. Article 3, Section 3 says: “Treason against the United States, shall consist only in levying war against [the states],” but then goes on to say: “or in adhering to their enemies, giving them aid and comfort.”
Flynn secretly met and dined, or “adhered,” to Russian figures, both here and abroad, who sought to destabilize our realm’s elections and foreign policies. Flynn provided “comfort” in the U.S., our realm, and “elsewhere,” overseas, to secretly “aid” Russia’s desires to alter our legislative and electoral processes.
How is Flynn’s behavior, if not the behavior of others in Trump’s entourage, not treasonous?
To charge a person with treasonous behavior, our Constitution requires confession in open court or the testimony of two witnesses to the same act. Even these conditions have been met. Flynn’s recent plea deals in court, personal admissions and others’ corroborations have provided the evidence. But what if you say even these points are not specific enough?
The difference between the British in 1351 and America today is that Congress is the body which our Constitution says is to “declare the punishment.” The Brits in 1351 were aware that their specific issues might not extend into the future. So they also included these hedges:
“And because that many other like Cases of Treason may happen in Time to come, which a Man cannot think nor declare at this present Time; it is accorded, That if any other Case, supposed Treason, which is not above specified, that happen before any Justices, the Justices shall tarry without any going to Judgment of the Treason till the Cause be skewed [analyzed] and declared before the King and his Parliament, whether it ought to be judged Treason or other Felony.” By extension, if in Michael Flynn’s case, and the cases of others defying Congress, charges of treason are to be alleged, at least Congress has that power.