We once wrote in these columns that nothing the Democrats accused President Trump of doing was as bad as what the Democrats did in trying to block Mr. Trump from carrying out the mandate he’d won in his first term. The second Trump administration is now making criminal referrals to the Department of Justice in respect of allegations of all sorts of alleged crimes in that alleged plot. It strikes us as a newsworthy moment. Yet by our lights Mr. Trump is making a mistake in accusing President Obama of, among other things, treason. “They tried to rig the election, and they got caught. And there should be very severe consequences for that,” Mr. Trump told reporters this week. “This was treason.” He went on to say that this was “every word you can think of. They tried to steal the election. They tried to obfuscate the election.”Then again, too, none of that is treason. Not under our system of constitutional law. So seriously did the Founders take treason that, in the Constitution itself, they prohibited Congress from defining treason in any way but the following: “Treason against the United States,” the Constitution they drafted says, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The Constitution also lays strict rules on how treason may be handled. “No Person shall be convicted of Treason,” the Constitution says, “unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Those standards are one of the reasons there have been so few treason cases in our courts. Not even Julius and Ethel Rosenberg were charged with treason. They went to the chair for espionage.We’ve been banging on about the treason clause in these columns for years. No other crime requires evidence of two witnesses, and not only that but of two witnesses to the same act. And not just any act. It has to be an “overt” act. Nor can the authorities take a confession to treason unless it’s given in open court. So for Mr. Trump to be talking like this in respect of Mr. Obama, Secretary Clinton, or President Biden, it doesn’t compute. Mr. Trump’s talk of “consequences” for his political foes also seems to traverse the vows he made during the 2024 campaign to refrain from seeking vengeance against his opponents. On the “Ingraham Angle” he had vowed that “my revenge will be success.” During his debate with Mr. Biden, too, he assured CNN’s Jake Tapper: “We’re going to make this country successful again, because right now it’s a failing nation. My retribution is going to be success.” As these columns asked in May, “Didn’t that constitute a campaign pledge on Mr. Trump’s part?” The assurance at least suggested that Mr. Trump would eschew the kind of scorched-earth lawfare that Jack Smith, Attorney General Garland, and other state and local prosecutors had wielded against him. It could well have amounted to a green light for undecided voters who were — and are — more concerned about issues like inflation and immigration.Putting aside any constitutional or ethical considerations, though, one of the best reasons for Mr. Trump to hold back on a lawfare push of his own is that the policy was such a spectacular failure for the Democrats. In the run-up to the election, it appeared that every time a new indictment emerged against Mr. Trump, his polling numbers got a boost. That suggests a practical reason to skip a “treason” prosecution against Mr. Obama and other Democrats.
