‘The fundamental question now isn’t about Trump’s lies, or intelligence leaks, or inadvertent collection of Trump communications. Rather, the crucial question is as monumental as it is simple: “Was there treason?” We don’t know yet what unfolded, and raw intelligence is often wrong. But the issue cries out for a careful, public and bipartisan investigation by an independent commission.’
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That’s the latest from New York Times columnist Nicholas Kristof, and we say, go for it. If there’s a “smell of treason” in the air, as Mr. Kristof quotes the historian Douglas Brinkley as having told the Washington Post, it’s a crackerjack story. We haven’t had a treason conviction since 1948 when Tomoya Kawakita was sentenced to the gas chamber (Eisenhower commuted him to life, and JFK freed him to go to Japan on the condition that he never come back).
If the New York Times and the Washington Post are going to launch a treason investigation, though, let’s get the law straight. That’s because of the confounded constitution. It puts up strict limits on treason, owing to the Founding Fathers, who feared the way the law of treason had been abused in England. There were times when it was considered treason even to imagine — just think hypothetically about — the death of the king.
The way the Founders handled it was to prohibit the Congress and the courts (and the president, for that matter) from defining treason. Instead, they wrote their own definition into the Constitution itself. “Treason against the United States,” the parchment says, “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” No other definition of treason is permitted in American law.
These columns have banged on a good bit about this over the years, but rarely has the grammar of treason invited such reflection as now, when the press is tossing around language that would make Joe McCarthy blush. The way we read the Constitution — and we are merely a newspaper — is that at least one of two things is required in respect of treason. One is levying. The other is adhering. Those are the constitutional core of treason.
Levying war is the plainer of the acts of treason. It’s not necessary to appear in arms against America for there to be treason, the Supreme Court once held, but war must “be actually levied” — that is, “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.” Justice Kristof uses a broader definition, writing, in reference to the Kremlin’s alleged hacking of the Clinton campaign’s email, “Our country was attacked by Russia.”
The less plain, but equally serious, core of treason is adhering to our enemies, giving them aid and comfort. The striking thing about this clause is its liberality. It seems to permit adhering to our enemies up to a point. Imagine that an American farmer of, say, German extraction is sitting at home when war breaks out between America and the old country. He can listen to the radio and privately root for his family’s fatherland, so long as he doesn’t act.
Mr. Kristof seems to have a looser definition of treason. He suggests that President Nixon’s campaign committed treason by encouraging Free Vietnam not to get hornswaggled by LBJ into a less favorable peace deal than Nixon thought he could get if he won the 1968 election. The columnist notes the FBI is looking into whether the Trump campaign “colluded with a foreign power so as to win an election.” Writes Mr. Kristof: “To me, that, too, would amount to treason.”
It’s not our purpose here to belittle the seriousness of the questions surrounding Mr. Trump. We’ve yet to forgive Vice President Jefferson for siding with the French in their Quasi War against America. Nor do we lack regard for Mr. Kristof’s reportorial prowess. It is our purpose, though, to hold out for confining the use of the word “treason” to its constitutional sense, particularly if what one wants is an investigation by the government.