This right here is one reason we can’t have nice things:
A convincing case could now be made that President Donald Trump has abused his power, obstructed justice, violated the Emoluments Clause of the Constitution—all impeachable offenses—and badly tarnished our national security. But he has not committed treason, and his critics should steer clear of such hyperbole, lest they play into his hands and invigorate his supporters. . .
“Treason against the United States,” reads Article III, Section 3, “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Notice the word “only.” The founders, who had their roots in rebellion and foresaw more revolutions ahead, wanted to ensure the law wasn’t expanded to cover other lesser crimes. Notice also the words “levying war” and “enemies.” In the few treason cases tried, mostly after World War II, the courts have ruled that “enemies” implies opposing armies in wartime. Jurists have also agreed that, while Congress doesn’t have to declare war in order for acts of betrayal to be considered treasonous, there does have to be an open state of “armed conflict” between the United States and some enemy.
Under this definition, we are not at war with Russia. Therefore, no American, including Trump, can be properly accused of treason in his dealings with Russia.
This argument, made by a liberal writer in a liberal publication, is a characteristic example of the characteristically American tendency to turn what should be practical political questions into technical legal arguments.
Trump isn’t guilty of treason in the same sense that Julius Rosenberg wasn’t guilty of treason: that is, in a sense that has significance in exactly one venue — a court of criminal law. In that same sense, and that sense only, OJ Simpson is not guilty of murder: he was acquitted of that crime, so if by “murder” one means acts that lead to a criminal conviction for murder, Simpson isn’t a murderer.
Indeed there is a technical legal argument that, again in this narrow sense, Trump cannot commit treason while he’s president, because he, arguably, cannot be indicted for, let alone convicted of, that crime or any other crime while he’s president.
But this merely demonstrates how completely meaningless the narrowest technical definition of a crime is when one is making political judgments about what to do about politicians who are betraying their country to another nation in exchange for money and power, which is what not only Trump, but also the entire leadership of the Republican party, is doing at this moment. That is what ordinary people, as opposed to lawyers, mean by treason, and that’s what the word ought to mean in ordinary political debate, as opposed to inside a criminal court.
This isn’t merely a semantic point: contrary to Fred Kaplan’s implicit argument, an impeachable offense isn’t limited to a crime that can be proved to have been committed beyond a reasonable doubt — indeed it’s not limited to crimes at all. Supreme Court precedent — for what that’s worth, which under current conditions may not be much — makes it perfectly clear that an impeachable offense is literally anything that a majority of the House of Representatives and two-thirds of the Senate consider an impeachable offense, and that the federal courts have no power to pass judgment on either the specific procedure used for, or the substantive outcome reached by, any impeachment proceeding.