Trump’s Impeachment Must Include a Count of Treason




Sometimes I write as an activist, in which I use a term like “treason” loosely, as non-lawyers do.  This time, with the House Judiciary Committee meeting tomorrow to discuss possible bases of counts of impeachment, I’m writing as a lawyer, using legal terms technically.  Here’s my conclusion:

One count of impeachment against President Trump must be for treason.

I don’t mean “treason,” as I did in the story linked above, to indicate that he’s basically channeling Vladimir Putin’s foreign policy agendas, including weakening the United States’s foreign alliances and undercutting our credibility for as long as we seem like we might elect someone else like him.  Those foreign policy choices may be treasonous in the colloquial sense, but they are not technically “treason.”

Treason is criminal disloyalty to the state, either by making war against it, or by — in the words of the the United States Code (i.e., federal statute) — “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.”  (18 U.S.C. § 2381).  The codifies the language of Article III, Section 3, of the U.S. 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. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Remember how people keep saying that “impeachment is a political process, not a political process”?  This is an example of where that really matters.  The criminal penalty for treason is either the death penalty or five years in prison.  The political penalty for impeachment on the grounds of treason is simply removal from office —with or without, as Congress decides — a bar on future officeholding.  Any criminal penalty — surely it would not be execution — would have to come after a successful prosecution under the control of the Attorney General. (Put otherwise: it won’t happen.  Not even under a Democrat.)

The key to treason, apart from open rebellion, is “giving aid and comfort to the enemy.”  Trump has done that a lot, but absent a declaration of war, none of it — except one — would rise to the level of actual treason.  Let’s review them:

  • cozying up to Putin?  No, while repulsive, that’s within the bounds of foreign policy.  No law says you can’t be on good terms with a global opponent.  Now he could still be impeached for it under another theory, one involving breach of fiduciary duty to the country (which would open up a “Trump Big Mac pile” size can of worms, but that would not be “Treason.”  Plus we’re not at war with Russia — in most respects.
  • cozying up to Erdogan?  Betraying the Kurds was awful, but I know of no U.S. law he broke by this action.
  • cozying up to Modi, Duterte, etc.?  Nope, not enemies.
  • cozying up to Kim?  He is technically an enemy, but Trump has the right to conduct even shoddy and hare-brained peace negotiations.

Well, what, then?  It would have to be an act that gave aid to an enemy in contravention of the law.  Did he ever do that?

Well, yes.  In fact, that’s the other side of what the past month’s hearings were about.

The focus has been on Trump soliciting a bribe from Zelenskiy — which is a crime.  It was also either extortion or attempted extortion — both of which are crimes.  But the treason isn’t about what he did to Zelenskiy, it’s about what he did to U.S. law!

Congress passed a bill ordering that $400-odd million in military aid go to Ukraine so that they could fend off a second Russian invasion this decade (the first being Russia taking over Crimea).  THIS WAS THE LAW.  During wartime there, when the anti-tank missiles were desperately needed to stave off Putin’s easiest path of invasion, Trump just sat on the aid.  For this purpose, it doesn’t even matter why he did so, though that “why” is heinous. He intentionally defied the law, giving our longtime ally — we can infer that status from our giving money for arms during wartime against an adversary we do not support — to defend itself against an invasion by, in this particular theatre of limited proxy war — was our enemy.

The bribery charge and the treason charge fit together like puzzle pieces.  The treason — the giving aid and comfort to Putin’s Russia, our enemy in this invasion, against the express intent of the law — is what made the extortion or bribery possible.

Timorous Democrats are afraid of adding new counts against Trump for fear that the public will not understand them.  They shouldn’t worry here: it’s an easy story to understand — Congress ordered Trump to toss out a life preserver to a drowning man and he simply refused while the man continued drowning — and it helps people understand the solicitation of bribery/attempted extortion part of it as well.

Crucially, it also helps put the finger on what most of us intuit is the root of the problem: on of breach of both duty and loyalty.  He had a duty to provide enumerated  arms to an ally and, by not doing so (for his own self-interested reasons) he gave aid and comfort (the benefit of not facing anti-tank missiles) to our enemy on that battlefield.

He betrayed our counties interests in a special way, one that perhaps only Presidents and insubordinate military commanders can do, that constitutes treason.  It’s unacceptable, unforgivable, and our allies died as a result.  He had damn well better be impeached for it.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)