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In a Washington, D.C. courtroom this morning, United States District Judge Emmet Sullivan tore a metaphorical strip off former Trump National Security Adviser Michael Flynn. In a series of pointed questions directed at the quondam general, Sullivan included one inquiring whether the investigators from the Special Counsel’s office had considered charging Flynn with other crimes, including treason.
Given that Flynn has already pled guilty to lying to the FBI in connection with his undeclared work as an agent of foreign governments, it might have seemed that ventilating the possibility of a treason prosecution might have been a bit of a reach.
Yet, as the evidence has continued to mount that the United States has been the subject of what amounts to an undeclared war by an enemy national, the question of whether the numerous contacts between Trump administration figures and agents of the Russian State constitutes treason has been one that has been very much bubbling along at the margins of our national conversation.
No one has been willing thus far, with the possible exception of former Naval Intelligence officer Malcolm Nance and a number of other commentators on MSNBC, even to mention the T-word.
Until today.
Because in his Washington courtroom today, Judge Sullivan brought the concept of treason in from the cold and set it right down at the table. Essentially, Judge Sullivan has done two things none had thought possible; he has mainstreamed the concept of treason prosecutions for one, some, or even all of the Trump entourage, and in so doing has decidedly upped the ante.
Basically, Judge Sullivan has blown the lid off of the generalized reluctance to link treason and Trump. If, as recently as last week, the concept of some kind of formal linkage between the Trump campaign and the concept of treason had been dismissible as the ravings of a marginal conspiracist, this morning’s courtroom colloquy, by bringing treason in from the cold, demands that we now engage in a serious, non-hysterical discussion about the possibility that one, some, or all of the senior leaders of the Trump administration may have been engaged with agents of the Russian State in a comprehensive effort to betray the United States.
Of course, many “lay lawyers,” imagining themselves as far more competent in the law than they really are, will protest that there is no declared war between the United States and Russia, and insist that a treason prosecution will only lie when there has been a formal declaration of war.
Aside from constituting the crime of unauthorized practice of law, the “lay lawyers’” analysis fails on two very simple points.
First, neither Article III, Section 3 of the Constitution, which defines the federal offense of treason, nor 18 U.S. Code § 2381, which defines the statutory offense of treason, contain any textually demonstrable requirement that the United States be in an actual, declared state of war. In fact, the United States last declared war on December 8, 1941, when Congress, in consequence of “the unprovoked and dastardly attack” against Pearl Harbor the previous day, declared a state of war to have existed from December 7 between the United States and the Japanese Empire.
Yet, if we were to accept the “lay lawyers’” formulation that a treason prosecution requires a declared war, then the treason statutes would fall into ineluctable desuetude, becoming unenforceable through nonuse.
Yet, when one considers the statutory history of treason statutes, both in this country and in England, one finds that from the time Parliament first legislated on the subject of treason, in the Statute of Treasons 25. Edw.3. c.5 s.2. (1351), that while levying war against the sovereign within the sovereign’s own jurisdiction was certainly treason, certain other acts could be considered treason as well.
What the statutory history makes quite clear, especially when one considers the various English Treason Acts following the original 1351 Act, is that the gravamen of the offense is that it constitutes an effort to contravene the authority of the State at the most basic level, by individuals who owe a duty of allegiance thereto.
Moreover, it cannot be gainsaid that Russia’s “active measures” in the course of propaganda, disinformation, fomentation of division, and stirring up of unrest constitute what is known as “information warfare,” prosecuted by the Russian State against the United States and its allies may not be a declared war, but it is war, all the same.
Consequently, if we accept the proposition that Russia’s “active measures” against the United States are a form of warfare, then any American assisting the Russian State in prosecuting such “active measures” against this country is unquestionably guilty of treason within the meaning of Article III, section 3 of the Constitution, and within the meaning of 18 U.S. Code § 2381.
Even the most basic understanding of the realities of how Russia’s “active measures” of information warfare do in fact constitute war against the United States should quickly dispose of any half-baked notion on the part of “lay lawyers” that assisting Russia against this country is not treason.
When Judge Sullivan dared to say the T-word in his courtroom, he not only brought treason, the redheaded stepchild whose name no one had dared to speak its name until now (pace Lord Alfred Douglas), into the mainstream of our national discussion, But, he also unstoppered the bottle, allowed the genie to escape, and also raised the very real possibility that treason prosecutions may very well become a part of the counterintelligence toolbox.
Donald Trump should be afraid, afraid to the point of existential dread, about where the prosecution in U.S. v. Flynn is heading.
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Paul S. Marchand is an attorney. He lives in Cathedral City, where he served two terms as a member of the city council. He currently practices law in Rancho Mirage. The views expressed herein are his own.
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