It is vogue among many Democrats and neo-conservative Republicans in Washington, DC to use the «T» word – treason -- to describe President Donald Trump’s and members of the administration’s relationships with the Russian ambassador to the United States and other Russian officials. As defined by Article III, Section 3 of the U.S. Constitution, treason is a crime only applicable in wartime. The framers of the Constitution defined treason very narrowly because its broad application to the American colonists by the British monarchy was one of the reasons for the American Revolution.
Neither Trump nor his advisers and colleagues crossed the «treason» threshold in any dealings with Russia or any other country during the campaign. The Constitution is very specific in this regard. Treason can only be charged in a wartime – what would be the result of a formal declaration of war by the U.S. Congress – and include providing a wartime enemy or enemies with «aid and comfort» in the form of furnishing an enemy with arms, troops, transportation, shelter, or classified information. Even if it is proven that Trump or his advisers colluded with any foreign country during the campaign, this would have occurred in peacetime and, therefore, constitutionally, treason would not apply.
There is ample case law for any reasonable federal judge to dismiss the notion of treason being committed during the 2016 election campaign. When atomic spies Julius and Ethel Rosenberg were convicted of espionage in 1951, it was because they were found guilty of passing classified information to the Soviet Union during World War II when the United States was in a declared war with the Axis powers. Treason charges were not brought against the Rosenbergs because the United States and the Soviet Union were formal allies during the war. Similarly, convicted U.S. spy for Israel, Jonathan Pollard, was not charged with treason in 1986 because he was spying for Israel, which was considered a U.S. ally.
Charges that Trump and his team may have been violating the Logan Act of 1799, which stipulates a fine and/or imprisonment for private citizens who negotiate with foreign governments involved in a dispute with the United States, are also a stretch of credulity. The problem with bringing successful Logan Act criminal charges is that no American has ever been found guilty of violating the Logan Act and only one person in American history was ever indicted. After a Pennsylvania state legislator named George Logan was discovered to have been negotiating a peace deal with France in 1798, President John Adams and his Federalist Party-controlled Congress, which wanted a war with France, enacted the Logan Act.
The Logan Act states that «any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both».
However, Logan could not be retroactively charged with a crime and the act remained dormant until 1803. That year, Francis Flournoy, a Kentucky farmer, was indicted pursuant to the Logan Act for attempting to establish an independent nation in western Kentucky that would be allied with France. The purchase by the United States from France of the adjoining Louisiana Territory later in 1803 rendered Flournoy’s indictment a moot issue and he was never prosecuted.
Since 1803, the Logan Act has only been used by various administrations to threaten Americans who have been involved in unofficial contact with foreign nations. Franklin Roosevelt’s State Department briefly considered charging former president Herbert Hoover with violating the Logan Act because of his talks with nations in Europe, before America’s entry into World War II, on sending food aid to the war-ravaged region. In 1975, Republicans wanted Senators George McGovern, the 1972 Democratic presidential candidate, and Alabama Democratic Senator John Sparkman charged with violation of the Logan Act for visiting Cuba and holding discussions with that nation’s government. It was determined by the State Department that McGovern and Sparkman were acting legally in their capacities as members of the legislative branch of government and were not negotiating on behalf of the executive branch.
In 1984, President Ronald Reagan floated the idea of charging Reverend Jesse Jackson with violating the Logan Act because he traveled to Cuba and Nicaragua. Jackson also negotiated the release of Cuban political prisoners to the United States. Reagan abandoned the idea because Jackson’s efforts in Cuba were popular among the Republican base in the Cuban community in south Florida. In 1986 and 1987, the Reagan administration, again, tried to invoke the Logan Act, this time against the Democratic Speaker of the House Jim Wright because of his involvement in cease fire peace talks between the Sandinista government of Nicaragua and the U.S.-backed contras.
No one spoke about violation of the Logan Act until 2007, when Tea Party Republicans in the House of Representatives charged that Democratic Speaker Nancy Pelosi violated the act by visiting Syria and holding talks with the Bashar al-Assad government.
In 2015, Republican senators spoke of indicting President Barack Obama for violating the Logan Act after he sent a letter to the Iranian government concerning the P5+1 nuclear negotiations. The Logan Act threat was laughable because, as president and pursuant to the Constitution, Obama was free to negotiate with any foreign power.
During the 2016 campaign, several Democratic senators suggested that Trump violated the Logan Act by his unofficial dealings with Russia. Harvard Law School professor Lawrence Tribe even suggested that Trump committed treason. It is a sad day when a law professor at one of the most overrated law schools in the world does not understand that treason charges can only be brought in wartime and that the United States and Russia were allied during the American Revolutionary War, the Civil War, and World Wars I and II. A declared state of war has never existed between the United States and Russia or the USSR. Tribe and other so-called «progressives» knowingly engaging in hyperbolic talk of treason make a mockery of the rule of law. Before she was fired by Trump as acting Attorney General, Sally Yates suggested that former Trump national security adviser Michael Flynn violated the Logan Act by meeting with Russian ambassador Sergey Kislyak during the presidential transition phase. Even if such a charge were brought against Flynn or anyone else in Trump’s ranks, the case law involving the Logan Act is next to nil, along with the fact that no one has ever been successfully prosecuted under the law.
In fact, because the Logan Act runs counter to the First Amendment rights of free speech and assembly, the act may, itself, be unconstitutional. In 2006, there was an attempt to put teeth into the Logan Act by making it a felony for any American to lie under oath about contacts with a foreign government. Washington, DC’s powerful foreign lobbyist industry killed the amendment.
If unofficial negotiations with foreign governments were to be a crime in the United States, the entire leadership of the American Israel Public Affairs Committee, American Jewish Congress, the Zionist Organization of America, and the Conference of Presidents of Major American Jewish Organizations could be charged with felony violations of the Logan Act for the constant pressuring of Congress and the White House on behalf of Israel. The power of these Israeli agents-of-influence overwhelms that of other foreign lobbies in Washington, which include lobbies for Taiwan, Turkey, Japan, France, Germany, Greece, Thailand, Ireland, Armenia, India, Azerbaijan, China, Georgia, Ukraine, Philippines, South Korea, Gibraltar, Singapore, Saudi Arabia, Bermuda, Macao, Equatorial Guinea, Kazakhstan, Iran, Abu Dhabi, Kiribati, Qatar, Ajman, Gabon, Poland, Italy, Monaco, Serbia, Hong Kong, St. Barts, Flanders, Liechtenstein, Palestine, Bhutan, Okinawa, Curacao, East Timor, Montenegro, Ras al Khaimah, Isle of Man, Albania, Quebec, Kosovo, Greenland, Macedonia, Guernsey, Tatarstan, Bashkortostan, North Korea, South Sudan, Scotland, Wales, Srpska Republic, Abkhazia, Turks and Caicos Islands, Sahrawi Arab Democratic Republic, Tahiti, San Marino, Tokelau, Nauru, Basque Autonomous Government, Catalonia Autonomous Government, Puntland State, Cook Islands, Sao Tome and Principe, and even non-recognized Kurdistan, Somaliland, East Turkestan, Assyria, Tibet, Sidama, Ambazonia, Biafra, Republic of Nagalim, Chechnya, South Moluccas, Turkish Republic of Northern Cyprus, South Yemen, Nagorno-Karabakh, and the Syrian Kurdish state of Rojava.
In fact, one would be hard-pressed not to find a nation or region in the world not represented by a lobbyist in Washington, DC. Billions of dollars involving lobbyists and Washington policy makers change hands every year and this does not result in headlines in either «The Washington Post» or «The New York Times». No one mentions the Logan Act or treason, even though some of the nations and regions represented by lobbyists and interlocutors are involved in their own border and civil wars.
All these and other lobbies – what represent a virtual fourth branch of the U.S. government - constantly try to make deals with members of the executive and legislative branches of the U.S. government. An attempt by Democrats and neocons to criminalize what amounts to public relations is patently absurd. Why is Russia being treated so differently from the rest of the foreign lobbies and interests in the United States? It is pure «scorched earth» politics from the «Never Trump» movement. There is nothing in the Democrats’ and neocons’ quivers – treason, espionage, and Logan Act violations – that can be used as legal weapons to bring about Trump’s impeachment or forced resignation.