In October 2006, Adam Gadahn, a US citizen who made a name for himself appearing in al Qaeda propaganda videos, was indicted on federal treason charges. It was an historic occasion, with the 28-year-old fugitive thought to be in Pakistan becoming “the first American to be charged with that crime in half a century,” as the Washington Post reported at the time. But Gadahn, a heavy metal fan who converted to Islam in 1995, was never captured (or convicted) by the military or law enforcement. Instead, he was killed by a US drone strike along the Afghanistan-Pakistan border in 2015.
Traitors, even just accused traitors like Gadahn, are exceedingly rare in American history. That’s because treason is actually a very narrowly defined crime that’s awfully hard to commit. And despite the latest wild revelations in the ongoing Trump-Russia saga—Donald Trump Jr.’s meeting with a Kremlin-connected lawyer who promised information as part of a Russian government effort to damage Hillary Clinton—legal experts say there is no way Junior or any Trump associate will ever get charged with treason.
The reason they offer is pretty simple: The United States is not fighting an actual war with Russia right now.
“To be treason, it has to be aid to an enemy of the United States, and Russia isn’t an enemy,” Carlton F.W. Larson, an expert on constitutional law and treason in particular at the University of California-Davis, told me in February, when the scandal was heating up.
When I called him back Tuesday, Larson held the line: since there are no “bullets flying” directly between Russian and American forces, treason is simply not on the table.
Now, treason does not need to be connected to a foreign government—just an entity that the US is engaged in active conflict with, according to Larson. “Maybe [if] you gave weapons to Russia with the intent that they pass them onto ISIS—something like that would probably be treasonous,” Larson mused. “But there doesn’t seem to be any indication that’s going on.”
That hasn’t stopped the “t” word from getting bandied about in the wake of the news of Junior’s meeting. Seth Moulton, a Democratic congressman from Massachusetts, tweeted, “If this isn’t treasonous, I’m not sure what is.” Tim Kaine, the typically mild-mannered Virginia Senator who was Clinton’s VP candidate, told CNN, “We are now beyond obstruction of justice. This is moving into perjury, false statements, and even potentially treason.”
Even Laurence Tribe, a constitutional law expert at Harvard, inveighed that Junior’s meeting had the “stench of bribery & treason.”
So I pressed Larson, perhaps the preeminent scholar on treason law in the country: Hadn’t anything changed in his assessment? Nope.
“This is just further detail about alleged interactions with the Russians, but all of that is essentially entirely irrelevant to a treason point, because Russia is not an enemy,” Larson told me.
Noah Feldman, a Harvard legal historian who previously suggested Trump may have committed impeachable offenses, agreed. “It’s defined in the Constitution, and this isn’t even close,” he emailed me Tuesday about a possible “treason” charge.
Of course, millions of Americans might find that hard to understand, given Russian meddling in the US election, its ongoing involvement in the Ukrainian war, its brutal operations in Syria, and the sanctions the US has leveled against Russia as a result of those and other actions.
But even in the Cold War era, when the US and Russia were way more at odds than they are today, no one was convicted of treason—spies passing classified info to Russians were convicted of espionage. Similarly, it’s possible that Donald Trump Jr. committed a crime by conspiring to obtain electorally valuable information from a foreign government, and other Trump associates might be charged with something related to Russia. Just not treason, according to Larson and Feldman.
This might seem like a minor rhetorical point or finger-wagging by egghead legal scholars. But the fact is that whining about “betrayal” and “treason” doesn’t do a whole lot to help the anti-Trump opposition, which is not served by hysteria or hyperbole, no matter how fashionable those sentiments might be.
And shouldn’t the resistance—a movement that claims to value things like science, journalism, fact-checking, and norms—be careful about the language that gets thrown around? There are lots of ways to condemn the Trump family without calling them traitors.
Still, even Larson admitted that he wasn’t quite sure how to describe Junior’s meeting. Suspicious? Collusion?
“There’s no good word for that sort of thing,” he told me. “The problem is it’s not treason, but it smells and stinks a lot like treason.”
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