After The New York Times published an opinion piece in September 2018 in which an anonymous Trump administration official claimed to be working to thwart presidential decisions for the good of the country, former President Donald Trump responded with a tweet consisting of a single word in upper-case letters: "TREASON?"
The former president himself was the subject of a similar denunciation in July 2018 after he held a press conference with Russian President Vladimir Putin and seemed to back Putin's denials that the Russians had meddled in the 2016 election, contrary to the findings of U.S. intelligence agencies. In response, former CIA Director John O. Brennan tweeted that Trump's performance was "nothing short of treasonous."
Most recently, however, in September 2021, former President Trump and several of his allies have accused Gen. Mark Milley, chairman of the Joint Chiefs of Staff, of treason, after reports suggest Milley reassured China that the U.S. would not attack the country during the final days of the Trump administration. The reporting is from the book "Peril," by Bob Woodard and Robert Costa.
So what's all this talk of treason about? To keep things in perspective, it's been a familiar attack in American politics for a long time. In the days before President John F. Kennedy's assassination in Dallas in 1963, thousands of flyers were distributed proclaiming that JFK was "Wanted for Treason." And before that, in the early 1950s, Sen. Joseph McCarthy (R-Wisc) railed against "20 years of treason" by communist agents that he alleged were working inside the U.S. government.
The T-word has been bandied about with such casualness, in fact, that it's almost possible to forget that it's an actual federal crime punishable by death, the only one explicitly described in the U.S. Constitution. Article III, Section 3 states that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." It also specifies that convicting a person of treason requires the testimony of two witnesses or a confession from the traitor himself.
But legal experts point out that treason, in the legal sense, has a very different and far narrower meaning from what most non-lawyers might assume that it means.
"When everyone is throwing around the word treason, it usually falls in one of several categories," says Washington, D.C.-based attorney Mark Zaid. "They're usually citing it for a partisan reason, because they want to smear that person, or they don't understand what the word means — or some combination of the two."
Disloyalty Is Not Treason
Treason isn't about mere disloyalty. The anonymous official didn't commit treason by depicting Trump unflatteringly in the Times article or taking actions to subvert his decisions, for example, and neither did Trump commit it in Helsinki, for a simple reason. Neither person's actions involved taking up arms against the U.S. or giving aid and comfort to an enemy nation.
In the case of Trump, for example, Zaid explains: "We're not at war, so it can't be treason. We're not at war with Russia." The same is true in the case of Gen. Milley and China. "Nothing General Milley said or did amounts to treason for the simple reason that it categorically doesn't meet the constitutional definition," Zaid says. "It's a very black and white situation. We're not at war with China, and while it may be an adversary it's not an 'enemy' in the constitutional context."
Actual treason indictments and convictions have always been rare. Fewer than 30 treason cases have been prosecuted in the nation's history, according to National Constitution Center editor Scott Bomboy.
That's probably the way that the Constitution's authors intended it. "The framers clearly wanted to empower the federal government to be able to punish treason in appropriate circumstances," University of California, Davis law school professor Carlton F.W. Larson, author of this Washington Post article on popular misconceptions about treason, explains in an email. "The memory of Benedict Arnold was fresh in their minds, and no one would want someone like him to be able to escape."
"At the same time, the framers realized that there were significant dangers from expansive definitions of treason," says Larson, who also wrote an in-depth article on treason in the University of Pennsylvania Law Review. "Many of their own resistance activities prior to the outbreak of the Revolutionary War had been deemed treasonous by British legal officials, and many colonial Americans had strongly resisted those interpretations. So the framers sought to limit the crime to two specific offenses, levying war against the United States and adhering to their enemies, giving them aid and comfort. These were technical terms from English law, but English law also included things like compassing the death of the king as a form of treason."
One of the earliest actual prosecutions occurred in 1807, when former Vice President Aaron Burr was arrested and tried for treason, for allegedly trying to entice some U.S. states to leave the Union and join in a war to seize territory — including what is now Texas — that then was ruled by Spain. As Bomboy details, Burr was prosecuted at the behest of President Thomas Jefferson, in whose administration Burr had served. In a trial presided over by Supreme Court Chief Justice John Marshall, Burr was acquitted by a jury.
After the Confederacy was defeated in the Civil War, former Confederate President Jefferson Davis was imprisoned for nearly two years on treason charges. Eventually, though, a group of wealthy individuals posted $100,000 in bail to obtain his release. Davis and other Confederate leaders escaped prosecution after President Andrew Johnson pardoned them in 1868.
During and after World War II, the federal government brought several treason cases, some of them against Americans who had participated in enemy propaganda broadcasts. The last person ever convicted of treason in the U.S. was Tomoya Kawakita, an American citizen who beat and tortured U.S. prisoners of war while working as an interpreter for a Japanese company during World War II. Though he was convicted and sentenced to death in October 1948, President Dwight D. Eisenhower commuted his sentence to life imprisonment in 1953, after appeals from the Japanese government, which by then was an important U.S. ally. A decade later, President John F. Kennedy ordered him released and deported to Japan, on the condition that he never return.
No Treason Without War
But during the Cold War, federal prosecutors couldn't seek treason charges, because the U.S. wasn't technically at war with the Soviet Union. "No war, no treason prosecution," explained Robert Sedler, a professor and constitutional law expert at Wayne State University. He's the author of this article on the legal nature of treason in The Conversation.
For that reason, Zaid notes, treason charges couldn't be brought even against someone as disloyal as renegade Central Intelligence Agency case officer Aldrich Ames, who passed secrets to the Soviet KGB in the 1980s and compromised the identities of CIA and FBI human sources. (Ames pled guilty in 1994 to espionage charges and was sentenced to life in prison without possibility of parole.)
The only recent treason charge was in 2006, when a federal grand jury indicted Adam Gadahn, aka Azzam al-Amriki, an American who allegedly appeared in al-Qaida propaganda videos in the mid-2000s, praising the September 11 attacks and proclaiming that "the streets of America shall run red with blood." But before he could be captured and put on trial, Gadahn was killed in a CIA drone strike near the Afghan-Pakistani border in January 2015. According to Sedler, al-Qaida and other terrorist organizations most likely qualify as enemies for purposes of the Constitution's treason clause, even though they're not enemy nations, because Congress authorized military action against them in 2001.
Another reason that treason charges are seldom brought is that there are plenty of other laws against specific offenses that a theoretical traitor might commit, such as espionage, sabotage, and killing Americans outside the U.S. It's simpler to charge someone with those crimes, rather than getting into a Constitutional debate about whether the actions constitute treason. And in those crimes, disloyalty isn't a factor. "Note that all these offenses can be committed by anybody, not just citizens," Sedler said.
But that doesn't necessarily mean treason is a legal anachronism. "There could be a time when it's something that it could be incredibly important to use," Zaid says. "We haven't had a declared war against a country for some time, but it's still feasible that we could, and it's sad to admit, but there could be people who betray us. When it's meaningful, it does send a message. But we need to use that message appropriately and carefully. Definitions matter."
Originally Published: Oct 2, 2018