Below is my column in USA Today on the increasing talk of treason by both Democrats and Trump in recent weeks. President Donald Trump has indicated that his comments about Democrats being traitors was only a joke. That is hardly compelling in a speech that also denounced the Democrats as “unAmerican.” Clearly, many in the audience do not take such comments as a joke. At the same time, many Democrats have been calling Trump or his family traitors in the actual rather than rhetorical sense. There is no basis on the existing evidence to charge Trump with treason. These comments are equally reckless and unfounded. The Framers sought to remove this charge from the political discourse by not just adopting a narrow definition but incorporating that definition into the Constitution.
Here is the column:
Suddenly Washington appears to be a den of traitors. For months, various Democratic politicians and commentators have all but accused President Trump or his family of treason. Now Trump has said Democratic lawmakers who failed to clap at his State of the Union address are “un-American” and traitors.
These accusations reflect the distemper that has taken hold of our politics. Calling opponents traitors has a long and dark history in our country — a history we would be wise not to repeat.
Not long after the president’s inauguration, Democrats began alleging more and more serious crimes committed by Trump and his family. For months, commentators and lawmakers referred incorrectly to the crime of collusion with Russians — despite the absence of such a crime in the federal code. It then became allegations of obstruction or loosely defined conspiracies or election fraud.
Soon, politicians like Sen. Tim Kaine, D-Va., said “treason” might potentially be the appropriate crime to investigate in relation to Donald Trump Jr.’s meeting with Russianswho said they had evidence of illegal donations to the Clinton Foundation. Richard Painter, chief ethics lawyer for former president George W. Bush, agreed 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.” Former Watergate prosecutor Nick Ackerman declared that Don Jr.’s emails about the meeting were “almost a smoking cannon” and added that “there’s almost no question this is treason.”
Even former Trump adviser Steve Bannon called the Trump Tower meeting with the Russians “treasonous.” And Rep. Seth Moulton, D-Mass., declared of Don Jr.’s eagerness to get the Russian dirt on Hillary Clinton, “If this isn’t treasonous, I’m not sure what is.”
Indeed, there is a lot of that confusion going around, Rep. Moulton. In speaking with workers at a Sheffer factory in Cincinnati, Trump at first described the Democrats as emanating “bad energy” but then racheted up to “un-American” and, as with the Democrats, had only one place to go from there: “Somebody said treasonous,” he said. “I mean, yeah, I guess, why not. Can we call that treason? Why not?”
“Why not” is precisely the question that seems to motivate many in playing the politics of treason.
At the start of our Republic, the Federalists and Jeffersonians were not just acting like they wanted to kill each other, they were actually trying to kill each other. John Adams was more than eager to use the Alien and Sedition Acts to arrest his opponents and subject them to possible death penalties for political speech. Russian collusion was not a thing but collusion with England (by Federalists) and France (by Jeffersonians) was all the rage as treasonous associations. Indeed, some Federalists referred to the Jeffersonians as “Jacobins” — a reference to French radicals that the English often used as synonymous with traitors.
It is not as if real treason was nowhere to be found in those days. There was of course the infamous Benedict Arnold who sought to give the plans to West Point to the British during the war (and then led troops against his countrymen). Former Vice President Aaron Burr was accused of planning to carve out parts of the Southwest and Mexico for a new nation. He was arrested for treason under former president Thomas Jefferson, but was acquitted.
James Madison was worried that our politicians would follow the European abuses in labeling their adversaries as traitors as a way of arresting them and seizing their property. Madison believed that he could deter such abuse with a formal constitutional definition. In Federalist 43, he wrote that “new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other.” He noted that the Framers “with great judgment opposed a barrier to this peculiar danger by inserting a Constitutional definition of the crime.”
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This language, part of Article III, Section 3, says “treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” The framers went even further to limit the use of this charge by stipulating that “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.”
So with such a clear constitutional definition and intent from the framers, why do we still have so much talk of treason? The answer is that some politicians cannot resist labeling opponents threats to the nation. Democrats like Kaine are using treason to mean an actual criminal charge while Trump is using it more in a rhetorical sense, but both uses are reckless.
From the Sedition period to the Joe McCarthy period to civil rights marchers and Vietnam protects, our history is replete with politicians who showed the same “why not?” attitude toward treason. The answer should not be simply that it does not fit with our definition; it does not fit with our values.
Politicians who traffic in the rhetoric of treason are betraying more than their oaths to uphold the Constitution, they are betraying us — a pluralistic people bonded to each other by a common constitutional covenant. We have learned from painful experience that those who are the first to cry “treason” are the last to support our freedoms. We are all Jacobins when we defy our government or our neighbors, but that defiance is what defines us as a free people.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley