Duty and Dereliction: Can a President Commit Treason by Omission?

With all the noise around the jarring misbehavior of Trump Junior, Jared Kushner, Paul Manafort, et al, we are largely missing the most galling scandal of all: President Trump’s refusal to protect the United States against an ongoing attack by a foreign enemy. Vladimir Putin is bent on eliminating the United States as the oversized obstacle between him and his diabolical aims: regional hegemony and unchecked mischief. To those ends, Putin’s government attacked the United States in a sudden and audacious way in 2016, and intelligence experts say that Russia will attack again, likely with even more devastating efficacy, in 2018 and 2020. putin

Don’t expect that Trump or anyone in his orbit will be charged with treason for the Trump-Russia collusion scandal or the administration’s reckless, depraved nonfeasance. (That’s not to say they won’t be indicted for something.) That a person isn’t tried for a crime, however, doesn’t mean he didn’t commit it; it just means the evidence isn’t conclusive or — as is more apt in this case — that the legal theory that would undergird charges, no matter how cogent, is too novel to fall within a leery prosecutor’s comfort zone.

And certainly, the notion that a president — or anyone else — can commit treason by omission (by failing to act rather than by affirmatively acting) is novel. As we’ll see, though, the unique obligations of a president make this a notion worth considering.

What is treason?

As I’ve discussed elsewhere, treason is made a crime by both by the US Constitution and the US criminal code (a statute passed by Congress). In both, treason is defined as either levying war against the United States or adhering to an enemy and giving that enemy aid and comfort. It’s a stretch to say that any Trump associate involved in the Russia-collusion mess actively levied war against the United States (although we’ll see where the evidence leads), but it’s a much closer question whether any American joined with hostile Russians and helped them attack and undermine hallowed US institutions — thereby adhering to an enemy and giving that enemy aid and comfort. I’ll focus on that latter variety of treason.

To repeat, treason is a crime. So just as with any other crime, it has elements. As to treason, those elements include 1) “adhering to” (joining with another country), 2) an “enemy” (for our purposes, let’s assume that Russia, because it undertook serial acts of espionage to install a compromised pawn in the White House and destroy US institutions and alliances, is an enemy), and 3) “giving aid and comfort” (some kind of tangible help) to that enemy.

Those are the acts (the “actus reus” elements) necessary for the commission of treason. Here’s the rub: normally, the acts (actus reus elements) of a crime cannot be committed by omission, which is to say that the failure to act cannot ordinarily result in criminal liability. But — and this is a very important but — there is an exception to this rule when a person has a legal duty to act. When a person has a legal duty to act, then fails to act, and in failing to act causes some kind of harm or injury, he or she may be guilty of a crime. For example, a parent has a legal duty to care for his or her child, so a parent’s failure to care for his or her child may constitute criminal neglect.

Does the President have a duty to act?

Probably. A fascinating debate erupted when the framers were drafting the US Constitution — specifically the provision in Article I authorizing Congress (and Congress alone) to declare war. A proposed draft of Article I provided that only Congress could “make war.” A constitutional scholar named Louis Fisher described what happened after that language was proposed:

[O]ne [thing the framers didn’t leave in Congress’s] control was the discretion left to the President to repel sudden attacks. An early draft empowered Congress to “make war.” Charles Pinckney objected that legislative proceedings “were too slow” for the safety of the country in an emergency …. Madison and Elbridge Gerry moved to insert “declare” for “make,” leaving the President with “the power to repel sudden attacks.” Their motion carried. The duty to repel sudden attacks represented an emergency measure that permits the President to take actions necessary to resist sudden attacks against the United States. This discretionary authority did not extend to taking the country into full-scale war or to mounting an offensive attack against other nations.

148 U Pa L Rev 1637 (2000)(emphasis mine).

Ever since the founders created the power in the president to repel a sudden attack, that power has been understood as creating not just the discretion to act, but the duty to act. That is why Fisher (like scores of other scholars, judges, and lawyers) referred to it in the quotation above as a duty. (For just one of many other scholarly discussions referring to repelling an attack as a presidential “responsibility” and “duty,” see this article by a former secretary of state.) This view comports with the text of Article II of the Constitution and also with common sense; as chief executive of the federal bureaucracy and commander-in-chief of the armed forces under Article II, the president is the only person with the command authority to marshal whatever countermeasures might be necessary to push back against aggression from abroad. If he won’t do it, nobody will, because nobody else can.constitution

This view also comports with the presidential oath: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” (No, “so help me God” is not in the constitutional text, nor would the framers have permitted it to be.)

Quite obviously, the oath a president takes does not literally (and only) require him to preserve, protect, and defend the original parchment copy of our founding charter. It requires that he preserve, protect, and defend the institutions that the Constitution creates. Since the Constitution creates a republic that depends for its existence on the availability of free, fair, and trustworthy elections, it is clearly among a president’s duties to preserve, protect, and defend against the corruption of our elections — those elections being our democracy — by a hostile foreign power.

It seems clear from Donald Trump’s words and actions that, by the time the 2018 and 2020 elections have come and gone (assuming he’s still in office by then), we will be left to say that he stood by and did nothing while our elections, and therefore our democratic institutions, came under sudden and sustained attack.

Would that constitute treason?

Maybe. We don’t know yet to what extent Trump is compromised by the Russians and therefore beholden to them. If he is acutely compromised, and if he is being used by Russians — not to affirmatively do their bidding, but to help them by failing to act as they attack and erode America’s institutions, interests, and place in the world — then it would seem that Trump’s failure to act would constitute the giving of aid and comfort to an enemy with whom he is in cahoots. That could not only constitute treason, but the most breathtaking example of treason in all of US history.



© 2017 Brendan T. Beery