As treason may be committed against the United States the authority of the United States ought to be enabled to punish it: but as new tangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention has with great judgment opposed a barrier to this peculiar danger by inserting a Constitutional definition of the crime.
–James Madison, Federalist 43, as reported in the New York Times, January 25, 1861
Whether the policy decision or its execution suit your pleasure, President Obama took action against Russia and, in response, Vladimir Putin did not. Naturally, PEOTUS felt compelled to twit.
Brilliant? Moronic? Somewhere in between? Not yet sure? Fair enough. But that wasn’t everyone’s reaction.
Treason? The word gets mentioned, but as a suggestion.
But of course, George Takai isn’t a lawyer (nor, in fact, a Star Fleet officer), and so his expressing something far beyond his ken isn’t to be taken any more seriously than he is. It’s not as if a lawyer, even a show pony lawyer, would say this.
Gloria Allred’s daughter, and Avvo spokesmodel, Lisa Bloom is, much to my chagrin, an actual member of the bar. But she didn’t say Trump committed treason. Rather, she framed it as a question, allowing her to suggest it without being committed to the assertion. She may play a lawyer on TV, but she apparently has the sense to retain plausible deniability when twitting something ridiculous.
Cooler, if not cold, heads were more reluctant to hurl accusations, even if they couldn’t resist the smack. ThinkProgress editor Judd Legum twitted “I don’t think Trump committed treason with this tweet, but he’s in the neighborhood.” Even Daily Beast’s Olivia Nuzzi urged Legum to “take it down like one or two notches.”
Whether Trump’s twit reflected wise foreign policy, a strategic response as part of his effort to “reset” the United State’s relationship with Russia, is a fair matter for debate, though it’s so replete with assumptions based upon one’s belief in Trump’s competence as to make any discussion unserious. There are too many unknowns as yet to make any reliable argument, not that this stops anyone.
But treason? Many, like Legum, cited to the federal statute, 18 U.S.C. § 2381, creating the impression of legitimacy.
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
But this law, like all laws, requires a degree of understanding. Words have definitions, and definitions are not whatever you feel they should be. Levies war? Adheres? Aid and comfort? Enemy? How does that work?
There are two ways to engage in treason. The first is to wage war against one’s own country, while owing allegiance. The second is to provide aid and comfort. But for the latter, the first step is that there must be an enemy. Isn’t Russia our enemy? We aren’t at war with Russia. We may not like them a lot, at least at the moment, but there is no war. Not a real war. Not a cold war. Not any war. Incidentally, war is something the government (used to be Congress, until they screwed that up by giving away their authority) declares. War is not what you feel.
“Treason.” “Logan Act.” “RICO.” “Slander.” All modern terms meaning “I am upset by this.”
This isn’t mere snark, but a reflection of the fuzzy, gray no-man’s-land of rhetoric that passes as thought. You say Trump is stupid? Is that because you see him at the meetings? If you’re to smugly feel superior to Trump, then you need to be better, smarter, wiser. His “Putin was very smart” twit was horrible? That’s fine. What it was not, and not in the neighborhood or within a million miles of the neighborhood, is treasonous.
And as long as we’re on people posting “fake news” to feed the beast, consider that the rumored Solicitor General nominee, George T. Conway III, who shockingly happens to be the husband of Trump whisperer, Kellyanne Conway. He’s got some solid lawyer chops, but he’s only argued one, just one, case before the Supreme Court! How is it even possible Trump could consider such a person qualified?
Of course, you don’t realize that when Elena Kagan was appointed Solicitor General by President Obama in 2009, she had never argued any case in any court ever. Same for two prior solicitor generals, Robert Bork and Ken Starr. One might well suspect the capacity to argue would be a fair job requirement of solicitor general, as well as some Supreme Court experience, but apparently not. And not only was it uncontroversial, but in Kagan’s case, was a stepping stone to the big bench. Pretty good for someone who never left the ivory tower beforehand.
There remains the unpleasant odor of nepotism, that Kellyanne will be a presidential advisor while her husband may be appointed solicitor general. The wafting nepotism is a matter of concern on many levels, and certainly a solid basis for criticism. But not that George Conway argued only one case before the Supremes.
No matter how strong your emotional connection to George Takai may feel, he is not a credible source of legal information. The problem with fallacious argument isn’t merely that they’re wrong, but they reduce those making them to idiots, not to be taken seriously because they spread “fake news” and make people stupider. When that happens, Trump wins (again).
Regardless of whether you love or hate the president-elect, every government needs to be subject to serious scrutiny. Don’t allow or facilitate that scrutiny to be reduced to falsities and absurdities, especially when there are serious concerns to be addressed and real arguments to be made.