There are many forms of betrayal of the United States. Consider just a few hypothetical examples of blatant disloyalty. A United States Congressman is secretly on the payroll of Mexico, and works diligently to advance Mexican interests. A CIA officer reveals sensitive national security secrets to Israel. The secretary of the treasury coordinates all of his actions with Russia, and is treated as a trusted asset by Russian intelligence. A Department of Defense official releases a trove of digital information about our nuclear defenses to a Chinese newspaper, which promptly makes these materials available on the internet.
These cases all sound suspiciously like treason, and most Americans would have little hesitation in labeling the culprits as traitors. In reality, however, none of these actions can be prosecuted as treason against the United States. Cases like these present the most significant tension between the popular understanding of treason and the technical requirements of the law. In all these examples, someone has betrayed the United States—why can’t the government prosecute him or her for treason?
The answer turns on the distinctive phrasing of the Treason Clause. Under this provision it is treason to adhere to the “Enemies” of the United States, “giving them Aid and Comfort.” The Clause is not concerned with providing aid and comfort to foreign nations generally, or even about placing the interests of another nation ahead of those of the United States. What is prohibited is aid to an “enemy.” So what, precisely, is an “enemy”?
As with the “levying war” provision, the term “enemy” in the Treason Clause is borrowed directly from the 1351 English Statute of Treasons and was discussed extensively in English legal treatises of the seventeenth and eighteenth centuries. These definitions have carried over into American law. There are fewer judicial decisions addressing this topic than there are with respect to levying war, but the contours of the law are sharper and easier to discern.
The Treason Clause carefully distinguishes between levying war and aiding enemies, because each defines a distinctive form of treason. The levying war provision looks inward, to internal rebellions. Persons who owe allegiance to the United States and rebel against it are not enemies, but traitors subject to prosecution for levying war. By contrast, the enemies provision looks outward; an enemy is always a foreign state, group, or person who owes no allegiance to the United States. Supreme Court Justice Stephen Field explained it this way during the Civil War: “The term ‘enemies’ . . . according to its settled meaning, at the time the constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government. An enemy is always the subject of a foreign power who owes no allegiance to our government or country.”1 The offense of adhering to the enemy therefore requires, at minimum, that someone owing allegiance to the United States provides aid and comfort to some entity that does not owe allegiance to the United States.
This fundamental distinction allows us to quickly dismiss a variety of potential claims of treason. If the alleged “enemy” owes allegiance to the United States, there is no treason. Thus, it is not treason to provide aid to the Ku Klux Klan, to the Mafia, to the Crips street gang, to the Westboro Baptist Church, to the American Communist Party, or to any other domestic group that is viewed as somehow threatening to American life. As a matter of law these groups cannot be enemies for purposes of the Treason Clause.
But just being a foreigner is not enough to qualify as an enemy. Most foreign nations and groups are not enemies of the United States at all. An enemy under the Treason Clause only exists if there is a declaration of war between the United States and a foreign nation, open hostilities between the United States and a foreign nation, or open hostilities between the United States and a foreign person or group. Failure to understand this point contributes to the most significant misapprehensions of American treason law.
We can start with nations. The easiest, and rarest, cases involve a formal declaration of war by the United States Congress. Only five wars have been formally declared under the United States Constitution: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. All the convictions under the Constitution for adhering to the enemy have come in one of these wars. In each case, the countries against which we declared war were enemies from the moment of the declaration of war until the final conclusion of peace, and the provision of aid and comfort to them constituted treason. But assistance prior to the declaration of war was not. As a 1919 federal court decision explained, Germany became an enemy in World War I only after the declaration of war on April 6, 1917. A German agent in the United States in 1916, even if he “came here for a sinister purpose,” was not an enemy. “As we were not at war,” the court concluded, “there could under the law be no treason . . . until after the 6th day of April.”2
Of course, the United States has been involved in far more than five military conflicts. The Vietnam War, for example, was no less a war for being undeclared. English and American courts accordingly recognized that a declaration of war was not an absolute requirement; if there was an actual state of open war between two countries, declared or not, the other country was an enemy. As a prominent English treatise put it, “States in actual hostility with us, though no war be solemnly declared, are enemies within the meaning of the [Treason] Act.”3
Examining actual hostilities between nations provides many more opportunities to identify enemies. As early as 1798, United States Attorney General Charles Lee concluded that an actual maritime war existed between the United States and France. In an official legal opinion, Lee announced that “France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen or any other person within the United States not commissioned under France.”4 Similarly, the Barbary States, attacked by the Thomas Jefferson administration in the early 1800s, were enemies. More recent enemies include the North Koreans, the North Vietnamese and the Vietcong during the Korean and Vietnam Wars, the Taliban government of Afghanistan, and the government of Iraq under Saddam Hussein.5
But in the absence of actual warfare, a foreign nation, no matter how hostile to American interests, is simply not an enemy within the meaning of the Treason Clause. As a federal court explained in 1919, the offense of adhering to the enemy “only takes place, and only can take place, during war—when war is on.”6 This rule explains why none of the examples given at the beginning of this chapter amount to treason. They describe aid to Mexico, Israel, Russia, and China. The United States has not declared war against any of those countries, nor are there open hostilities between the United States and any of them. Accordingly, even the most extensive aid to these nations does not constitute treason.7
When the allegations of connections between Donald Trump and Russia began surfacing, I began to receive regular calls from the media inquiring whether or not this conduct was treasonous. As I am no fan of Donald Trump, I would have loved to have said yes. But as a lawyer and a scholar, I knew that the answer was clearly no. Russia is not formally an enemy of the United States. Donald Trump could sell Russia an American aircraft carrier for $10; he could wire the Oval Office with a direct bug to the Kremlin; he could even hand over our nuclear codes to Vladimir Putin, without running afoul of American treason law. Such conduct would clearly warrant impeachment, and would almost certainly violate other provisions of federal law, but it would not amount to providing aid and comfort to the enemy because of the simple fact that Russia is not technically an enemy.
Consider a historical analogy. In the early 1950s, during an especially dangerous phase of the Cold War, Julius and Ethel Rosenberg were accused of transmitting American nuclear secrets to the Soviet Union. The fairness of their trial has been the subject of considerable debate, but later research on their case in American and Soviet archives leaves little question as to their guilt.8 A casual observer of the trial might easily have concluded that the Rosenbergs were on trial for treason. In his opening statement, federal prosecutor Irving Saypol referred to the “treasonable acts” of the defendants and stated that they had “committed the most serious crime which can be committed against the people of this country.”9 Similarly, in his closing argument, he denounced the defendants as “traitors.”10 Even the presiding judge, Irving Kaufman, adopted this language. When sentencing the Rosenbergs to death, Kaufman stated that their crime was “worse than murder. . . . [P]utting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason.”11
But this was pure rhetoric. As Saypol and Kaufman well knew, the Rosenbergs were not on trial for treason—they were charged with conspiracy to commit espionage. Because as despicable as their behavior was (and, from the American perspective, hastening the growth of the Soviet nuclear program is about as despicable as it gets), the Soviet Union was not an enemy of the United States. It had been our ally just a few years earlier during World War II, and although the relationship had deteriorated dramatically, there was no declaration of war or even open hostilities. No matter how great a threat the Soviet Union appeared to pose, it was not treason to aid the Soviet Union.
A more recent example is the case of Aldrich Ames, the high-ranking CIA official who spied for the Soviets for eight years before his arrest in 1994. Ames’s betrayal remains the most notorious and damaging failure in the history of the American intelligence services. By any colloquial definition of the term, Ames was a traitor, one of the very worst people America has ever produced. But like the Rosenbergs, Ames could not be tried for treason, because of the simple fact that we were not in a state of open war with the Soviet Union. Ames was charged with espionage and, after pleading guilty, is currently serving a life sentence in a federal prison.12 If neither the Rosenbergs in the early 1950s nor Aldrich Ames in the 1990s could be prosecuted for treason for aiding the Soviet Union, it is equally impossible to prosecute Donald Trump or anyone else who feels inclined to assist Russia today.
Many Americans are understandably frustrated with the narrowness of this definition. In July 2017, after the revelations of the meeting at Trump Tower between Donald Trump Jr. and a Russian agent, the Washington Post asked me to contribute an op-ed about the applicability of treason law to this case. This was a fairly simple task, given the clarity of the law. The Post published the op-ed under the headline “Sorry, Donald Trump Jr. Is Not a Traitor.”13 Although the headline aptly summarized the argument that Trump Jr. was not technically guilty of treason, it missed some of the nuance I hoped to convey. I argued that “coordinating with a foreign government to interfere in American elections is fundamentally wrong, deeply un-American, and . . . almost certainly illegal under a variety of federal statutes.” I also pointed out that “we do not have a good term to describe behavior that is not technically treasonous but nonetheless constitutes a betrayal of the United States,” which was a fair description of Trump Jr.’s alleged activities.
Any such subtleties were lost in the hundreds of comments that followed from angry readers denouncing me for my obvious stupidity, partisanship, and seeming disloyalty to the United States. The comments seemed to proceed from the assumption that it must be treason to work with a foreign country to harm the United States. In many countries it would be. But that is simply not the standard under American law.
Casual allegations of treason are probably inevitable in public discussion of Donald Trump and Russia, and there is little point in countering all of them. But it is surprising to see an esteemed publication such as the New Yorker asserting, as it recently did, that allegations of Russian assistance to the Trump campaign “could constitute treason if they were only partly true.”14 Somehow this flatly erroneous claim escaped the New Yorker’s renowned and meticulous fact-checkers. It probably seemed so transparently obvious that no fact-checking was necessary. But intuitions about treason are frequently unreliable, and this is especially true with claims about aiding the enemy.
“Enemies” are not limited to nations. Under English law, enemies included rogue groups of individuals who were engaged in hostilities with England. The classic example was a foreigner who attacked England on his own initiative, notwithstanding peaceful relations between his country and England. The prominent eighteenth-century treatise of Michael Foster explained, “[I]f the subject of a foreign prince in amity with us invadeth the kingdom without commission from his sovereign, he is an enemy.”15 Similarly, William Blackstone stated that “foreign pirates or robbers, who may happen to invade our coasts, without any open hostilities between their nation and our own” are properly classified as enemies for purposes of treason law.16 This definition seems to have been readily accepted in America. In the late 1770s, for example, Chief Justice Thomas McKean of Pennsylvania, a signer of the Declaration of Independence (and thus a traitor to Great Britain himself), followed Foster’s definition of “enemy” almost verbatim when interpreting the term in his state’s new treason law.17
The most obvious enemy under this definition is Al-Qaeda, a foreign group that has attacked the United States and with whom the United States is in open hostilities. Al-Qaeda seems directly analogous to the “pirates and robbers” that Blackstone recognized as “enemies” under English treason law. Shortly after 9/11, Congress passed an act authorizing the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”18 With this statement, Congress clearly authorized a state of war between the United States and Al-Qaeda. In 2006, the Department of Justice explicitly recognized that Al-Qaeda was an enemy by indicting an American citizen, Adam Gadahn, for treason for providing aid and comfort to Al-Qaeda.19 A federal court in New York agreed in 2013, concluding that a U.S. citizen who was a member of Al-Qaeda had committed “treason” by giving “aid and comfort to enemies of the United States (such as Al-Qaeda).”20
A strong case can also be made that ISIL is an enemy of the United States under the Treason Clause. Although ISIL is not a nation, and there has been no formal declaration of war (or a declaration equivalent to that against Al-Qaeda), we are clearly in a state of open military hostility against ISIL. In April 2016, for example, President Obama repeatedly stated that our goal was to “destroy ISIL” militarily, and pointed to the fact that the U.S. had launched over 11,500 air strikes against ISIL.21 Under these circumstances, it would be very hard to argue that a state of open war did not exist between the United States and ISIL.
Although American citizens will undoubtedly have conflicting views as to which foreign nations or groups should count as enemies, final resolution rests with the federal government. Only the United States Department of Justice can initiate prosecutions for treason against the United States, and the department will do so only after serious consultation with other federal departments. After all, declaring a nation or group an “enemy” for purposes of the Treason Clause is tantamount to a declaration of war and will only be undertaken in the most serious of circumstances.
Federal courts have a role to play in these cases, but it is relatively limited. As a general matter, determinations of a state of war are quintessential “political questions,” meaning that their resolution is entrusted to the legislative and executive branches of government. Courts have little ability to second-guess the federal government’s determination that a foreign nation or group is an enemy. But courts still must carefully evaluate any treason indictment to ensure that it meets the minimum constitutional requirements. A court would clearly dismiss a treason indictment, for example, if the asserted “enemy” was the Democratic Party or the Sierra Club or the Chicago Tribune.22
Moreover, courts must ensure that the government’s “enemy” determination is backed up by other previous, publicly available statements. As a matter of fundamental due process, and implicit in the concept of “open warfare,” is the requirement that a person have notice that the government considers a nation or group to be an enemy. The government cannot secretly declare a country to be an enemy, and then punish those people who interact with it. As one federal court has explained, “there must be some determination by the political department of the government evidencing the existence of a state of war.”23 This is a further problem with treating Russia as an enemy—there are no official actions of the United States government indicating that we are in a state of open war with Russia.
A hypothetical analogy can help illustrate the point. Suppose that in 2016 the Canadian government was appalled by the prospect of Donald Trump assuming power on its southern border. Prime Minister Justin Trudeau then sent undercover agents into Michigan, Wisconsin, and Minnesota to distribute handbills promoting the election of Hillary Clinton. No one would seriously think that this secret conduct amounted to a state of open war between the United States and Canada, or that aid to the Canadian government now constituted treason against the United States. But the Canadian hypothetical is simply the analogue equivalent of the documented digital behavior of Russia.24
Of course, Russian meddling in our elections is an outrage and a despicable act of hostility by a foreign government. Indeed, the United States might even be justified in treating such Russian meddling as an act of war and taking military action against Russia in response.25 But this would be one of the most significant decisions our country could possibly make, likely leading to a global war with immense consequences for humanity. So we will almost certainly have to deal with Russia by other means. And so long as we do not recognize a state of open war with Russia, that country remains what we might call a “frenemy”—hostile, dangerous, and adverse to American interests but, technically, still a friend.
There is one final way in which seemingly obvious intuitions about treason and the enemy are not to be trusted. Suppose an American citizen traveled to Tokyo in September 1941 and encouraged the imperial Japanese government to attack the United States. After the attack, could the American citizen be charged with treason?
The answer, astonishingly, is probably no. This bizarre result rests on a subtle distinction between English and American treason law. In 1762, Michael Foster summarized the English law on this point, stating:
The offence of inciting foreigners to invade the kingdom is a treason of signal enormity. In the lowest estimation of things and in all possible events, it is an attempt, on the part of the offender, to render his country the seat of blood and desolation; and yet, unless the powers so incited happen to be actually at war with us at the time of such incitement, the offence will not fall within any branch of the statute of treasons, except that of compassing the king’s death.26 [Emphasis added.]
In other words, until the surprise attack is actually launched, the other country is technically not an enemy, whatever its secret, hostile intentions might be. Accordingly, persuading another country to attack England could not be prosecuted as an act of adhering to the king’s enemies. Foster concluded, however, that such persuasion could be punished under an entirely different provision of English treason law—the prohibition on compassing the death of the king.
The drafters of the Treason Clause wrote against this backdrop of English law. But they deliberately eliminated the offense of compassing the king’s death, and they did not adopt anything of analogous scope. The curious consequence is that a particularly nasty form of disloyalty—persuading a foreign country to attack us—may escape punishment as treason. Since it technically doesn’t count as levying war or adhering to enemies, it could only be punished under some other criminal statute. However, if the American participated directly in the Pearl Harbor attack, say, by flying a plane, he could probably be charged with levying war against the United States.27
In short, under American treason law, many forms of blatant disloyalty cannot be punished as providing aid and comfort to the enemy. Fortunately, law enforcement is not limited to the crime of treason when hunting down malefactors. The Rosenbergs were not technically convicted of treason, but that fact probably didn’t provide them much comfort as they were being strapped into the electric chair. Eighteenth-century English law provided that aid to a foreign country with whom England was not at war could be punished as a felony, although not as treason.28 American law has followed this distinction. Laws regarding espionage, conspiracy, the treatment of classified materials, the conduct of political campaigns, laundering money, making false statements to the FBI, providing material support to terrorist organizations, and a host of other provisions all provide the government with considerable tools for prosecuting and convicting people who act in a disloyal manner. And these laws can be easily updated to capture disloyal conduct that might currently fall through the cracks. We may be denied the satisfaction of formally labeling certain disloyal Americans as traitors, but that doesn’t mean they will escape scot-free.