I’ve been pushing back against the thought police (both left and right) who flip out every time the subject of treason comes up in public discourse about Trump, Trump Junior, and the whole Russia-collusion mess. Those who raise the issue in that context are not, as critics would have it, unhinged; it isn’t crazy to say that treason was involved in Team Trump’s mischief; it’s just premature.
But there’s nothing wrong with talking about it; indeed, if there’s one benefit to this Trump experiment gone horribly wrong, it’s that more Americans are learning basic civics — like, for example, that there are three branches of the federal government, and that each one can get jammed up by the other two.
As I’ve discussed elsewhere, treason is the only crime defined in the Constitution itself, and its elements (outside of actually waging war against the US) are as follows: 1) adhering; 2) to an enemy; and 3) giving the enemy aid and comfort. In the context of Team Trump, then, the questions would be whether Trump Junior or anyone else joined together with Russians; whether Russia, in attacking an American election (which many have deemed “and act of war”) was and is an enemy of the United States; and whether Trump Junior or anyone else provided Russia with tangible, material (relevant and important) assistance in carrying out its attack. Those are hardly outrageous questions to ask in light of evidence that, as it evolves, seems more and more inculpatory.
But Fox News has a different application for these principles; Mediaite describes what happened on a recent episode of a Fox program called Outnumbered:
[F]ormer Trump campaign aide Steve Cortes . . . came out swinging against the “deep-state operators” committing “treason against the national security of the United States.” Cortes also declared that the release of the transcripts [of Trump’s conversations with the Mexican and Australian heads of state] was the latest effort by the Washington “swamp creatures,” to bring down the White House.
“It’s treasonous, quite frankly,” Cortes said. “To use our security apparatus as their vehicle to try and upend the Trump presidency, or any presidency for that matter. It’s a terrible precedent if they’re not caught, arrested, and thrown in jail.”
If we look again at the elements of treason, this is a remarkable take on how it might have been committed. First, one must adhere to an enemy. It’s unclear who “the enemy” might be here, and as people like Cortes like to point out as to the Russia-Trump relationship, we’re not at war with Russia. In fact, in the technical sense (meaning a war declared by Congress as prescribed in Article I of the Constitution), we’re not at war with anyone.
So who or what is it that is being adhered to (or joined with) in this alleged effort to bring down the Trump presidency? The only people the leakers of these conversations joined or worked with were members of the media — and now we’re getting somewhere. It must be, in the view of Cortes, that other Americans (in the free press protected by the First Amendment) constitute an enemy for purposes of treason. Tell that one to a judge.
Second, to be guilty of treason, the leakers must have given aid and comfort to the enemy. Since the allegation here is some joint enterprise to bring down Trump, we’re left to wonder a) how that hurts rather than helps the United States, and b) how leaking these transcripts could have furnished aid and comfort.
I note that, constitutionally, treason is defined as an offense against the United States, not against Donald Trump — not that any Trump supporter knows the difference. To date, there is no evidence that the political ruin of this presidency would in any way constitute a crime against the United States; in fact, were some omnipotent patriot to endeavor to strengthen our alliances, restore our standing in the world, and defend us against hackers who would destroy our institutions, he or she would start by laying waste to the most feckless, humiliating, and destructive presidency in US history.
But even if bringing down this presidency were an offense against the United States, how did the leakers provide aid and comfort to anyone trying to do that? According to Cortes, it was by leaking transcripts of what Trump actually said to two foreign heads of state. That’s right: the natural tendency of Trump’s own words, when known by all, is to render aid and comfort to enemies of the United States.
Fox News commentators, of course, don’t consider the implications of their words before bloviating. They have that in common with Trump himself. But the two breathtaking propositions underlying Cortes’s claim are 1) that the free press is an enemy of the United States, and 2) that Trump’s very words pose an existential threat to his own presidency.
Quite the commentary.