Could Donald Trump Jr. Be Charged With Treason? Short Answer: No

Jul 12, 2017
Originally published on July 18, 2017 12:07 pm

The headlines get more breathless by the moment. "Explosive new charges!" "A bombshell!"

Was it a crime for Donald Trump Jr. to meet with a Russian government-connected lawyer who promised dirt on Hillary Clinton for use in the presidential campaign? Was it worse than a crime? Was it treason?

The latest Russian caper — this one involving the president's son, then-Trump campaign chairman Paul Manafort and the president's son-in-law Jared Kushner — has Washington (pardon the pun) atwitter.

In terms of what is now being investigated, "we are now beyond obstruction of justice," Sen. Tim Kaine, Clinton's running mate, said Tuesday. "This is moving into perjury, false statements and even potentially treason."

Richard Painter, who served as the chief White House ethics lawyer in the George W. Bush administration, agrees, noting that "the dictionary definition" of treason and the "common understanding" is "a betrayal of one's country, and in particular, the helping of a foreign adversary against one's own country."

More laws in play

But Painter acknowledges that the crime of treason is rarely charged in the United States for a variety of reasons, including the fact that the Constitution requires either a declaration of war or some attempt to overthrow the government by violence. But, as he observed in an interview with NPR, "we just use other statutes because most of what is treason would have violated another statute anyway."

During the Cold War, for instance, when Americans gave secrets to the Soviet Union, the charge used to prosecute accused spies, including Julius and Ethel Rosenberg, was espionage. Most were sentenced to prison; the Rosenbergs were executed.

Today, other, less dire laws are in play. Painter and others, for instance, maintain there is the possibility that Trump Jr. violated campaign laws by seeking to acquire something of value — namely, opposition research to use against Clinton — from a foreigner. U.S. campaign finance laws explicitly bar obtaining money or other things of value from foreigners.

Indeed, Kushner and Manafort could be in legal jeopardy, too. They also met with the Russian lawyer after they were forwarded the email exchange promising that the lawyer had "information that would incriminate Hillary and her dealings with Russia," to which Trump Jr. responded, "I love it especially later in the summer."

Trump Jr. says the June 2016 meeting in Trump Tower did not produce the information that had been promised via email about Clinton. He said he did not discuss the meeting with his father, as "there was nothing to tell."

There are also laws barring perjury or making false statements to law enforcement officials. Painter says that he presumes Trump Jr., as well as Manafort and Kushner, were interviewed by the FBI in connection with Kushner's security clearance, for instance. Any potential false statements made during that process — denials about meetings with Russians, for example — could put any of the three in legal jeopardy, he says.

According to Painter, that is not the only issue. The Trumps "over and over again, have said, 'We did not collude with the Russians,' and they did not collude with the Russians, I guess, like President Clinton did not have sex with that woman." The difference, says Painter, is that "this is a lie we care about. This is about our national security."

Treason is deliberately hard to prove and rare in U.S. history

Using the word "treason" can be a fraught affair. As Yale Law School's Eugene Fidell observes, treason is the only crime specifically mentioned and defined in the Constitution because it was a charge so abused by the English monarchy. In rebelling against the Crown, the Founding Fathers put a narrow definition of treason into the Constitution as "a protection," according to Fidell. Under the Constitution, "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

Subsequent interpretations, by James Madison in the Federalist Papers and Chief Justice John Marshall in an 1807 Supreme Court opinion, have connected treason only to the "levying of war" or the use of force to overthrow the established institutions of government.

There is a second protection as well for those accused of treason. Under the explicit terms of Article III of the Constitution, "no person shall be convicted of treason unless on the testimony of two witnesses," both confirming the same overt act, "or on confession [of the accused] in open court."

That requirement is an unusually high bar to meet, which is part of why there have been relatively few successful treason prosecutions in the nation's history. Fewer than a handful of those convicted were put to death, and some were acquitted, including Aaron Burr of intending to found an independent nation in the Western states.

Indeed, many were subsequently pardoned or had their sentences commuted. Two men convicted of treason in the Whiskey Rebellion and sentenced to death by hanging were later pardoned by George Washington. The leader of the Fries Rebellion and two accomplices were convicted of treason and sentenced to death in 1800, but they were pardoned the same year by President John Adams.

Perhaps the most infamous American turncoat was Benedict Arnold, the Revolutionary War general who switched sides and spied for the British. Although his co-conspirator was executed, Arnold escaped to Britain.

A more modern example was Iva Toguri D'Aquino, an American citizen dubbed "Tokyo Rose" by American servicemen in the Pacific during World War II. Stuck in Japan at the time of Pearl Harbor, and under pressure, she refused to renounce her U.S. citizenship but participated in propaganda broadcasts aimed at Allied servicemen. When she returned to the U.S. after the war, she was convicted of treason, served six years of a 10-year sentence. She was later pardoned by President Gerald Ford after the Chicago Tribune reported that the two major witnesses against her had been coached to give false testimony.

Fidell contends that it is a nasty practice to "immediately throw the treason card on the table, even in the context of mere political discourse." It has a "Queen of Spades flavor to it," he says — "off with their heads." He notes that during the campaign, Trump repeatedly labeled Sgt. Bowe Bergdahl a "traitor," even though the charges against Bergdahl are desertion and "misbehavior before the enemy by endangering the safety" of fellow troops.

Now that the "shoe is on the other foot," Fidell says, he still thinks that it is an "outrageous charge" and that the "sins of the father" should not be "visited upon the son."

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

KELLY MCEVERS, HOST:

Let's talk about where the Russia story is now. It's certainly been a public relations nightmare for the White House. Some are even using the word treason to describe the Trump campaign's now-proven interest in cooperating with the Russians to damage Hillary Clinton. But could that interest be considered treason? NPR legal affairs correspondent Nina Totenberg takes a look.

NINA TOTENBERG, BYLINE: The headlines get more breathless by the moment.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN #1: Explosive and very-fast-moving developments in the Russian meddling.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED WOMAN #1: Major breaking news.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED WOMAN #2: The very latest bombshell.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN #2: Breaking and stunning news in our...

TOTENBERG: The bombshell - this one involving the president's son, his then-campaign manager Paul Manafort and the president's son-in-law, Jared Kushner - has Washington - pardon the pun - atwitter. Here's Senator Tim Kaine, the former Democratic candidate for vice president.

(SOUNDBITE OF ARCHIVED RECORDING)

TIM KAINE: We're now beyond obstruction of justice in terms of what's being investigated. This is moving into perjury, false statements and even into potentially treason.

TOTENBERG: And here's Richard Painter, who served as the chief ethics lawyer in the George W. Bush administration.

RICHARD PAINTER: The conduct of all three of them borders on the common understanding of treason and the dictionary definition of treason which focus on the betrayal of one's country, in particular helping a foreign adversary against one's own country.

TOTENBERG: Painter acknowledges that the crime of treason is rarely charged in the United States for a variety of reasons. For one, the Constitution says there can be treason only in times of war or attempts to overthrow the government.

PAINTER: When we don't have a declared war. We just use other statues because most of what is treason would have violated another statute anyway.

TOTENBERG: Like the espionage laws. Today less dire laws are in play - campaign finance laws that unequivocally bar taking anything in value from a foreigner, including opposition research. Here, Trump Jr., Kushner and Manafort had a meeting with a Russian lawyer after an email exchange promising, quote, "information that would incriminate Hillary and her dealings with Russia." To that, the president's son replied, quote, "I love it." In addition, the three could be in legal jeopardy if they made false statements during the FBI security clearance process for Kushner. Again, Richard Painter...

PAINTER: They've said over and over again, we did not collude with the Russians. And they did not collude with the Russians I guess like President Clinton did not have sex with that woman. But the difference is this is a lie we care about. This is about our national security.

TOTENBERG: Using the word treason, however, can be a fraught affair, observes Yale Law School's Eugene Fidell. He notes that the crime of treason was so abused in England that it is the only crime defined in the Constitution. Not only is the definition narrow, but the founding fathers deliberately made it hard to prove. Conviction for treason requires the testimony of two witnesses to each overt act or a confession in open court. Fidell objects to the rhetorical use of the words treason and traitor today, including by President Trump during the campaign.

EUGENE FIDELL: To immediately throw the treason card on the table even in the context of mere political discourse, it has a kind of off-with-their-heads flavor to it.

TOTENBERG: And that, he contends, is exactly what the founding fathers wanted to avoid. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.