Collin Hart, Associate Member, University of Cincinnati Law Review
“[N]o crime is greater than treason.”[1] While accusations should not be thrown around lightly, in the age of Trump, accusations of treason seem to have become the newest political weapon ready to be lobbed at one’s opponent for any disfavored action. After the New York Times printed an anonymous op-ed, purportedly drafted by a senior administration official, that was highly critical of the President and his administration, President Trump, accused the New York Times of committing treason.[2] In the aftermath of a press conference between President Trump and Russian President Vladimir Putin, in which President Trump seemed to side with Russian intelligence agency’s conclusions regarding election meddling by the Russians, former CIA director John Brennan called Trump’s performance “nothing short of treasonous.”[3] With so much talk of treason in the current political atmosphere, it may be important to clarify what exactly constitutes treason.
While almost everyone has heard of treason and knows that an accusation of treason is not to be taken lightly, it is important that one actually knows what constitutes treason under our system of law. While many would respond that treason is simply an act of betrayal, the U.S. Constitution establishes a narrower definition. Article III, Section 3 of the U.S. Constitution states that “[t]reason against the United States shall consist only in levying War against [the United States], or in adhering to [its] Enemies, giving them Aid and Comfort.”[4]
To constitute treason under the Constitution, one must either (1) levy war against the United States or (2) in adherence to an enemy, give the enemy aid and comfort. The first type of treason is straight forward: if a person loyal to the U.S. wages war against the U.S., that person is potentially guilty of treason. The second type of treason is slightly more complicated and contains two requirements. First, the person must give aid or comfort to an enemy of the U.S. Second, that person must give aid or comfort in adherence to the enemy. Adherence to the enemy requires an “intent to betray” the U.S.[5] An enemy, for purposes of the treason clause, is defined as only “subjects of a foreign power in a state of open hostility” towards the U.S.[6] Finally, the crime of treason by aiding an enemy can only be committed during a time of war.[7] Thus, to be convicted of treason by aiding an enemy, a person must give aid or comfort to a subject of a foreign power openly at war with the U.S. and the person must do so with an intent to betray the U.S.
While individuals may have their own definition for treason and may apply treason broadly, the crime of treason as established by the Constitution is a very narrow and specific crime. Neither the actions of the New York Times nor President Trump would likely meet the high bar for treason under the Constitution. Neither the Times or President Trump were waging war against the U.S. nor were they giving aid or comfort to an enemy of the U.S. While some may argue that Russia is an enemy of the U.S., Russia is not an enemy for the purposes of the treason clause. The U.S. currently has many differences with Russia, but we are not in a “state of open hostility” or at war with Russia. Furthermore, there is no indication that either the Times or Trump possessed an intent to betray the U.S. These two instances help show that accusations of treason are likely being thrown simply as a political weapon and not based upon any rigorous legal reasoning.
Whether false accusations of treason are harmful for our political discourse, and in turn our country, is a topic for another day.
[1] Hanauer v. Doane, 79 U.S. 342, 347 (1870).
[2] Sabrina Siddiqui, Trump doubles down on ‘treason’ accusation after New York Times op-ed, The Guardian (Sep. 6, 2018), https://www.theguardian.com/us-news/2018/sep/06/donald-trump-montana-rally-new-york-times-treason-claim.
[3] John O. Brennan (@JohnBrennan), Twitter (Jul.16, 2018, 11:52 AM), https://twitter.com/JohnBrennan/status/1018885971104985093.
[4] U.S. Const. art. III § 3 (emphasis added).
[5] Cramer v. U.S., 325 U.S. 1, 29 (1945) (outlining the requirements for treason under the U.S. Constitution).
[6] Captain Jabez W. Loane, IV., Treason and Aiding the Enemy, 30 Mil. L. Rev. 43, 61 (1965) (citing United States v. Greathouse, 26 Fed, Cas. 18 (C.C.N.D.Cal 1863)).
[7] Id. at 62 (citing United States v. Fricke, 259 F. 673 (C.C.S.D.N.Y. 1919)).
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