Benedict Arnold fled to England before he could face charges. Aaron Burr was acquitted. Tokyo Rose and Axis Sally were sent to the slammer when they came home after WWII. The Commonwealth of Virginia hung John Brown and Aaron Stevens for organizing an armed resistance to slavery in 1859. In 1862, the Union Army hung William Mumford for tearing down an American flag that had been raised over New Orleans.
Herbert Hans Haupt, a German-born naturalized U.S. citizen, was the last person executed for treason in the United States. He was convicted in 1942 by a military tribunal after being named as a German spy by fellow German spies who were defecting to the U.S. He died in the District of Columbia’s electric chair.
There hasn’t been a treason trial in America since 1952, when the U.S. Supreme Court ruled that Tomoya Kawakita, a dual U.S.-Japanese citizen who was born in California, could be convicted of treason for mistreating American prisoners of war in Japan. Kawakita was sentenced to death, but the sentence was commuted and she eventually was released by President Kennedy and deported to Japan.
When they wrote the U.S. Constitution, the Founders went out of their way to make it difficult to charge anyone with treason in America. They had seen the use of bogus treason charges to stifle political opposition in Britain and France. And, lest we forget, all of them had committed treason against King George III, the British monarch who had declared “a traitor is everyone who does not agree with me.” The treason clause they inserted in the Constitution was the most restrictive of its time, requiring at least two witnesses to the crime. Here’s what it says:
Article III, Section 3:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
[The bit about “no attainder of treason” meant the punishment could only be applied to the perpetrator and not to his descendants.]
The Founders did not want the gravest charge that could be leveled against an American to supersede the freedoms enshrined in the Bill of Rights. The rareness of the invocation of treason throughout our history is a good indication that they got it right. In today’s America, Mumford could burn the flag; he would be condemned by most of us, but he wouldn’t go to jail.
You can say the vilest things about America and you won’t be charged with treason. For example, you can stand in front of a memorial wall that honors dedicated public servants who gave their lives to defend America and compare the agency they worked for to Nazi Germany. You can dismiss the victims of a serial killer and praise him as a “strong leader” by telling your fellow citizens that all of them harbor the same murderous instincts. You can divide Americans by ethnicity and race. You can slander an entire religion. You can make America hate again.
But here’s what you can’t do: you can’t conspire with a sworn enemy of the United States to attack American democracy. That is the essence of the Founders’ definition of treason.
On Monday, the FBI director informed the nation that the FBI is conducting an investigation to determine if the Trump campaign colluded with Russia during Russia’s effort to sabotage the 2016 presidential election.
Director James Comey told a public hearing of the House Intelligence Committee that what he termed a “counter-intelligence” investigation began last July and is still in its early stages. He said the FBI would determine if criminal charges should be filed. Rep. Adam Schiff, a former federal prosecutor, told Comey the FBI must find out if any of the Trump campaign’s members were compromised by the Russians using the KGB’s tried-and-true methods of bribery and/or extortion. And yes, “any members” includes the guy who got elected president.
The July benchmark is important for several reasons. In July, the Russians started using third-party cutouts to transmit to WikiLeaks hacked emails from the Democratic National Committee. Also in July, a member of the Trump campaign made an urgent trip to Moscow, shortly before Trump’s inner circle welcomed Sergey Kislyak, the Russian ambassador to the U.S., as their guest of honor at the Republican National Convention in Cleveland. The day before Trump was nominated for president, his campaign manager, Paul Manafort, instructed the Republican National Committee to remove a plank from the GOP platform that had proposed to send heavy arms shipments to Ukraine to be used to fight off Russian aggression. July also was the month that candidate Trump started calling NATO “obsolete.”
On December 29, after 17 U.S. intelligence agencies unanimously concluded that Russia had mounted a massive cyberattack and disinformation campaign aimed at the U.S. presidential election, then-President Obama announced a series of new sanctions against Russia. The same day, Gen. Michael Flynn—President-elect Trump’s pick to be his top national security advisor—had a series of telephone chats with Ambassador Kislyak about the sanctions. The next day, December 30, President Putin announced there would be no Russian retaliation for the new U.S. sanctions.
Last month, The New York Times reported that—a week before Gen. Flynn resigned on Feb. 13—Trump’s personal lawyer, Michael Cohen, hand-delivered to Flynn a sealed letter outlining “a way for President Trump to lift sanctions against Russia.” Cohen delivered the letter in the company of Felix H. Sater, a business associate who had helped Donald Trump “scout deals in Russia,” and Andrii Artemenko, a Ukrainian lawmaker who is part of an “opposition movement” to the current Ukrainian government, a movement shaped by Paul Manafort [Manafort previously was a consultant for Ukrainian President Viktor Yanukovych, the strongman and Putin ally who was ousted by the Orange Revolution and now is living in Moscow].
According to the Times report, the letter proposes a “settlement” between Russia and Ukraine that would include a referendum on Crimea in which the people of Crimea would be given two choices: to “lease” Crimea to Russia for 50 years or to “lease” Crimea to Russia for 100 years. The Times noted that Mr. Sater, a Russian-American, pleaded guilty decades ago to a stock manipulation scheme involving the Mafia. Artemenko, who spent two and a half years in jail in Kiev on embezzlement charges, claims he came up with the plan outlined in the letter delivered to Flynn, but we’ll wait for the FBI’s handwriting analysis to rule out Vladimir Putin as the author.
On Wednesday, the Associated Press reported it has obtained documents showing that, from 2005 until at least 2009 (or perhaps longer), Manafort was a contract employee of a Russian oligarch with close ties to Vladimir Putin. The contract paid Manafort $10 million per year to perform services including “influencing politics, business dealings and news coverage inside the United States, Europe and former Soviet republics” to “greatly benefit” the government of President Vladimir Putin.
The AP says it has a copy of a memo in which Manafort pitched his services to Team Putin. “We are now of the belief that this model can greatly benefit the Putin Government if employed at the correct levels with the appropriate commitment to success,” Manafort wrote in the 2005 memo. “[This effort] will be offering a great service that can re-focus, both internally and externally, the policies of the Putin government.”
Coming soon to a Congressional hearing room (or a federal grand jury in DC) will be Donald Trump’s tax returns and the intricate financial structure of the hundreds of LLC front companies the Trump Organization has set up to run its businesses, most of which involve leasing the Trump name, collecting a management fee and building luxury towers and golf courses with hundreds of millions of dollars of borrowed money. We look forward to hearing Donald Trump Jr. explain his public statement at a 2008 real estate conference in New York that “Russians make up a pretty disproportionate cross-section of a lot of our assets. We see a lot of money pouring in from Russia.”
Our national nightmare soon will be over. The only questions are whether the end of this story will be written in days, weeks or months—and what the guy with his medium-sized finger on the button might do to distract us as the dragnet tightens around him.