Can Donald Trump’s recent actions be considered treasonous?
I would say that a lot of us see treason in what has recently occurred with payments for oil to Russia. Vladimir Putin has vowed to destroy the West, is actively invading a sovereign European nation, aiding Iran, and conducting asymetrical warfare against our NATO allies.
Treason is a heinous crime under United States law; it is actively helping enemies of the United States against the interests of the United States.
Think, Benedict Arnold. Some 250 years later, his name is synonymous with treason.
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Some actions smell so bad that you have to hold your nose and your breath, but they don’t give rise to a criminal charge of treason, for which a person convicted could be executed.
Treason is referenced in our constitution, without much definition of terms or words used, as giving the enemy aid and comfort.
As Justice Potter, Stuart said about pornography, “I’ll know it when I see it.”
Convictions for treason are rare in the United States. There have been an estimated 15 cases, and no president has been charged although vice president Aaron Burr was tried for treason because he urged states to leave the union. He was acquitted.
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An example of treason was an American father who aided his Nazi son who was landed here by submarine for sabotage purposes.
Another conviction was of a person known as Tokyo Rose, an American, who engaged in English language propaganda for the Japanese during World War II.
Although Trump claims not, Russia is helping Iran in its war with the United States. Russia is providing satellite imagery and surveillance data to help Iran target US and Israeli military assets.
For all we know, this assistance has killed American service personnel. If not, that’s the intention.
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Russia has shipped to Iran via the Caspian Sea, drones, ammunition, and explosives. It has provided upgraded missile technology and it consults with Iran on the manufacturer of more effective missiles.
The war in Ukraine has strapped Russia for cash and equipment.
I don’t think anybody would claim that Iran is not an “enemy” under the Constitution, even though Trump, et. al. claim we’re not in a war, and have not been. Tell that to the dead service personnel.
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Trump has announced his intention to pay Russia $4 billion for oil. And he’s doing this for two reasons, so he claims.
The most obvious reason is political; he needs to lower the gas prices before the midterms in order to keep his Republican cronies in Congress. He had other tools to use to lower gas prices without paying Russia $4 billion.
The second reason, he claims, is the ‘’national interest.” He just told Congress this when he waived sanctions under the (dead) Graham Act.
This distinction might be important.
Under our laws an enemy is any country, government, group, or person engaged in hostile activities against the United States. This can be open hostilities or a declared act of war.
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It is hardly clear that by delivering these massive sums of money to Russia. Trump has “aided the enemy.” Russia does not qualify as an enemy as we are not “war” with Russia.
Under the tax laws, there is a concept called “attribution.” This is a bit of a fiction applied when a person receive something from one person, but it is reclassified as coming from, or to, another person to suit the true purposes of the transaction.
For example, a child may receive taxable income at a lower tax rate than their parents, but the Internal Revenue Service would reclassify the recipient as the parent in order to establish the reality of the transaction.
It’s much tougher to apply such a fiction in a criminal setting.
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Yet, Trump has aided Iran by funneling money to Russia, well aware that some of this money will be used to benefit Iran, an enemy we are at war with (although Trump doesn’t call it a war, and he claims mendaciously that Russia is not helping Iran).
Could Trump be properly indicted for treason?
Very likely not, even if he did engage in treasonous acts, thanks to the ludacris ruling penned by Justice John Roberts in Trump v. United States, which grants a president immunity for official acts.
And, I have to ask. Did Roberts ever imagine that his ruling would immunize a president from treasonous actions?
Trump claims that he waived the Graham Act in the national interest. That’s probably a lie, but if he did, and he has a great deal of discretion to so declare, that would be considered a core, official, act, and he would be immune from prosecution under that Supreme Court decision.
But before he waived the Graham Act, Trump announced that he was paying $4 billion to Russia to reduce gas and diesel prices.
Was that for the national interest or was that to aid his Republican political party and if so, is that outside his official capacity as president, and not to be considered a constitutional or official act?
It’s a tough case, but I’d like to see Jack Smith step up to the plate and take a swing at this in 2029. It’s the least this country can do for this president.
Jim Astrachan is lawyer who represents clients in intellectual property law and litigation, mediation, and business, regulatory, and transactional matters. He’s a Life Fellow of the Baltimore City Bar Foundation, the Maryland Bar Foundation, and the American Bar Foundation.