SHITSHOW DU JOUR — A TREATISE ON TREASON
Let’s talk about treason and ask the question of Lying POTUS, is you is or is you ain’t guilty?
I jumped to the premature conclusion that he is guilty way back on July 27th of last year when, referring to Hillary Clinton’s deleted emails, he made the stunning declaration: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” during a campaign news conference.
For good measure, he defamed the Fourth Estate by claiming that Russia would be “rewarded” by the press, and threw in as an extra bonus that he would accept Russia’s annexation of Crimea, a hostile act under international law.
In what seems like medieval times — a year ago — Trump still had the capacity to shock. How was inviting a hostile foreign power to interfere in a sacred democratic ritual not a blatantly treasonous act? In the year since, again and again, Trump has incriminated himself, adding to the evidence file and then lamely and stupidly, defending himself against his own admissions, both prosecutor and defense lawyer. The prosecution has both the facts and the law on its side, although all of the facts are not yet in.
L-POTUS, with the help of his co-conspiratorial sycophants in the White House, in Congress and in the press, has succeeded in sidetracking public debate with a fog of bleating, whining, temper-tantrum tweets. He has accused the Justice Department of engaging in an obstruction of justice witch hunt. He denounced fired former F.B.I Director James Comey for illegally leaking government information. He has lambasted a formerly staunch ally almost on a daily basis (Germany, the UK — London and its Muslim mayor — the European Union, Mexico, Canada, Sweden or Australia) for either not pulling its weight in the U.N., giving aid and comfort to the terrorists, or both. And he has undermined the legitimacy of the free press by accusing it of (take your pick) a) lying; b) making up stuff; c) out to get him; d) all of the above.
Without taking a deep dive, let’s deal quickly with the obstruction charges and the so-called leaks.
There are two basic standards for obstruction of justice charges and two forums for lodging them. Under federal law, the focus is not on obstruction of justice, but hindering the “due administration of justice” under 18 USC 1505.
This statute applies not just to judicial proceedings but to any matter before an administrative agency, department, or committee of the United State, including Congress. It applies to investigative demands from federal departments, including subpoenas, and inquiries by the House of Representatives, but not to civil or criminal trials in US District Courts. It would apply to Comey’s dismissal and if Trump follows through on reported threats, firing Special Counsel Robert S. Mueller III. The standard of proof is stringent, and it is not clear whether Trump’s actions and statements would satisfy the legal requirement of intent.
If, however, the House were to bring obstruction of justice charges as a basis for impeachment proceedings, it would have a more easily attainable standard of proof because the legislators would have flexibility in defining obstruction of justice and whether it occurred. Trump’s bizarre, serial acts designed to halt any investigations into his administration’s Russian ties — an admission he made on television to Lester Holt — or intimidate investigators delving into these matters would be enough to bring charges even if the facts don’t meet a minimum legal threshold to bring federal charges.
We might have been edging closer to impeachment proceedings if C0ngress was controlled by the Democrats. But it isn’t, and Congressional leaders — Ryan and McConnell have circled the wagons around L-POTUS, shamelessly excusing every objectional action he takes and statement he makes. Remember that it was a Congress dominated by the Democrats that brought three articles of impeachment against Richard Nixon, including one for obstructing justice by impeding the Watergate investigation.
Comey’s leaks? Nothing more than legitimate and legal whistleblowing. Comey’s contemporaneous memos of his conversations with Trump contain no national secrets or security leaks. They are nothing more than evidence to be taken into consideration by congressional committees, federal agencies and the special counsel in their separate but interlocking investigations of Trump and his subordinates. Nothing illegal there.
All this is so much white noise and lawn furniture Trump is throwing at our feet to impede the investigations. His strategy? Other than satisfying his overblown autocratic, narcissistic ego, there is no overarching strategy. His only goal is to create any kind of sideshow to obscure that on a daily basis, the security and stature of the United States is diminished and compromised. Obstruction of justice, leaks, the press, dismissing our allies and alliances as so many fired Apprentice candidates, just a sideshow.
By allowing themselves to be sidetracked by focusing on obstruction of justice, Mueller, the FBI, and the House and Senate Judiciary inquisitors are ignoring a much larger infraction. The concept of obstruction of justice goes to the issue of whether Trump is hindering their respective investigations into his administration’s Russian ties. But the treacherous implications of those Russian ties, as well as Trump’s other actions in foreign policy and domestic arenas, actions which undermine our strategic alliances to the benefit of Russia, would constitute acts of treason if those investigations establish that there is a recurring, consistent pattern and common thread linking his decisions and actions to one another.
What Treason Looks Like
There is precedent for opposing parties to launch accusations of treason at one another.
In his magisterial biography of Alexander Hamilton, historian Ron Chernow points out that both Hamilton and President Washington “regarded much of the criticism fired at (Washington’s) administration as disloyal, even treasonous, in nature.” Jefferson’s opposition party also fired charges of treason at the Federalists.
Treason is the only crime defined in the Constitution. Under British law, treason was broadly defined, and it became intertwined with allegiance to the Crown. Over the centuries, treason charges became lethal enforcement tools against political opposition. To avoid those abuses, the Founders drafted Article III, Section 3 of the Constitution which reads:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort (emphasis mine).
The section goes on to give Congress the power to pass legislation to create the offense, which it does under 18 U.S.C. § 2381, which states “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere (again, emphasis mine) is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
For context, let’s take a look at some famous traitors and see how their offenses stack up against L-POTUS’.
Famous Traitors We Have Known
Benedict Arnold name is interchangeable with the word traitor.
As every school child used to know, he collaborated with the British during the Revolutionary War. Disgruntled that the Continental Congress passed him over for a promotion to major general, Arnold provided the British with troop locations and strengths, as well as the locations of supply depots even while he was negotiating his compensation with the British.
Arnold was given command of West Point and he set about systematically weakening its defenses, scattering troops throughout the Hudson Valley and weakening river defenses. He was set to surrender the fort, and with it, control of the Hudson Valley south through New York City when his plot was exposed.
Arnold fled to a British ship anchored in the river, which took him to New York. He accepted a brigadier general’s commission in the British Army, but received only a small cash payment and pension because his plot failed. After the surrender at Yorktown, Arnold fled to England, where he died in exile in 1801.
Even though Arnold’s name is interchangeable with traitor, his actions occurred before the Constitution was adopted.
Throughout American history, politicians have labeled the opposition traitors. Thomas Jefferson in 1791 said that any Virginia official who cooperated with the Bank of the United States proposed by Alexander Hamilton was guilty of treason against the state of Virginia and should be executed. The Bank opened and no one was prosecuted.
Since the Constitution came into effect, there have been fewer than 40 federal prosecutions for treason and very few convictions.
Aaron Burr was tried for treason in 1807 and acquitted of the charges.
Reviled for killing Alexander Hamilton in their famous 1804 duel, Burr, while still vice president, the British, General James Wilkinson, who was governor general of the Louisiana Territory, and a cabal of planters, politicians and army officers planned to carve out a new country under his rule in what is today the southwestern part of the United States and northern Mexico. Burr asked the British for ships and arms. He also contacted Spain for assistance and told his contacts in Madrid that he meant to raise an army and capture Washington DC.
Burr was exposed in March of 1806 when the U.S. Attorney for Kentucky wrote Jefferson that Burr planned to provoke a rebellion in Spanish-held parts of the West. A partisan newspaper in Frankfort KY, the Western World, leveled similar charges against Burr, and although the concept of fake news was more than two centuries in the future, Jefferson ignored the charges as politically motivated.
The U.S. Attorney, Joseph Hamilton Daveiss brought charges against Burr, claiming that he intended to make war with Mexico. However, with the help of a young attorney, Henry Clay, a grand jury declined to indict Burr. But Wilkinson turned on Burr, sending Jefferson a damning piece of correspondence Burr had written outlining the entire plot. Burr’s trial in 1807 resulted in his acquittal, mainly because no witnesses testified against him.
During the Civil War, a number of Copperheads — northern Democrats who opposed the Civil War — were tried for treason. There were some convictions and one person was sentenced to death. People were charged for the seemingly benevolent act of spiriting in provisions to captured Confederate prisoners.
World War II and Cold War Traitors
In 1949, Iva Toguri D’Aquino, an American-born woman, was convicted of treason for wartime radio broadcasts originating from Tokyo meant to undermine the morale of American servicemen. Better known as Tokyo Rose, she was sentenced to ten years, of which she served six. Partly as a result of prosecution witnesses having lied under oath, and also because multiple female propagandists broadcast under the name “Tokyo Rose”, she was pardoned in 1977.
In 1952 Tomoya Kawakita, a Japanese-American with dual citizenship, was convicted of treason for mistreating American prisoners at a Japanese POW camp and sentenced to death. Kawakita, who worked as an interpreter at the camp, was recognized by a former prisoner at a department store in 1946 after having returned to the United States. His sentence was later commuted to life imprisonment and a $10,000 fine. He was released and deported in 1963.
During the Cold War, Senator Joseph McCarthy and other Cold Warriors accused scores of liberal Americans of being Communist sympathizers and traitors. The Cold War period saw no prosecutions for treason, but there were convictions and executions for espionage on behalf of the Soviet Union, most notably the controversial trial and executions of Julius and Ethel Rosenberg.
Treason Against The States
Most states have treason provisions in their constitutions or statutes similar to those in the U.S. Constitution.
Only three persons are known to have been prosecuted for treason on the state level.
Thomas Dorr was a Rhode Island resident who led an armed revolt against the state, mobilizing the disenfranchised to demand changes to the state’s electoral rules to broaden white male voting eligibility. Dorr was found guilty of treason in 1843, sentenced the following year to solitary confinement and hard labor for life. He was released in 1845 and the judgement against him set aside after the harshness of his sentence was widely condemned.
John Brown was convicted of treason against the Commonwealth of Virginia for leading the raid on Harpers Ferry. He was hanged in 1859.
The founder of the Latter Day Saints movement, Joseph Smith, was charged with treason for waging war against his neighbors in Missouri. He escaped to Illinois where he was again imprisoned, again on treason charges, but also for murder and robbery charges. He was murdered by a lynch mob while in jail awaiting trial.
Selling out your country to the enemy, abusing prisoners of war, demoralizing servicemen over the air waves, waging war on your neighbors, raiding a military arms depot, leading an armed revolt against the state, these have been the yardsticks for adhering to the enemy and giving it aid and comfort.
Now let’s see just what L-POTUS has done and whether he meets the treason litmus test.
The First Draft of Articles of Impeachment
Let’s catalogue how, during his campaign and presidency, Trump has repeatedly and willfully ignored the Russian security threat, derided and attacked those who tried to alert him of its existence, and compromised security relationships with our closest allies and strategic partners. There is no new news here, and it will sound like the beating of the same old drums. But take a look at the breathtaking length of this list. More important, ask yourself the following question: Are these actions random and unconnected acts of ignorance, arrogance and narcissism? Or are they initiatives of a man hell-bent on assaulting our well-being to the benefit of an enemy nation?
- He repeatedly expressed admiration for Vladimir Putin, admiring his strength as a leader.
- Trump dismissed Russian military incursions into the Ukraine and its annexation of Crimea, creating a moral equivalency between the Russian outlaw acts and unspecified United States’ actions on the world stage. “You think our country’s so innocent?” he told Bill O’Reilly.
- Despite unqualified agreement by all of our national security agencies, he denied the existence of Russian interference in the 2016 presidential election, dismissing the investigations and analyses of the CIA and FBI and denying the dire threat to our free elections. He has insulted and derided our security agencies. Worse, he has discouraged any cyber defense efforts because of his denial of the existence of any threat.
- Contacts between former NSA adviser Michael Flynn and Russian officials during the election campaign. The disturbing issue with Flynn’s Russian contacts is not just that he failed to disclose them, but he might have been extended a quid pro quo to the Russians by encouraging them to further roil the election to help Trump get elected, promising that a Trump Administration would lift economic sanctions.
- Trump bragged to the Russian foreign minister and its U.S. ambassador, “I just fired the head of the F.B.I. He was crazy, a real nut job,” Trump told the Russian officials. “I faced great pressure because of Russia. That’s taken off.” Not only does Trump’s showing off provide strong evidence of obstruction, but it adds evidence to support a treason charge.
- If Mueller is able to find evidence to bring charges against Trump for obstruction of justice, the charges will not just stand on their own, but reinforce a separate treason impeachment article of impeachment, an attempt to cover up treasonous acts of collusion with the Russians to undermine our elections.
- He has threatened to unsheathe the nuclear saber against North Korea, heightening tensions in the South Pacific and threatening our allies South Korea and Japan, casting the U.S. as an antagonist and strengthening China’s mediation role in the region.
- He destabilized NATO by failing to re-affirm the collective defense principle in Article 5 of the Washington Treaty, strengthening Russian’s hand in Europe, putting greater defense burdens on Germany and France and pushing Scandinavian and Eastern European nations to seek closer ties and grant greater concessions to Russia.
- He and his sons have in the past bragged repeatedly that they do not need domestic or international banks to expand their real estate empire. They can get all of the loans they need from the Russians.
- His administration has presided over corruption unrivaled in American history. L-POTUS and his family have used the presidency as a platform to enhance revenues for existing businesses, seek out and establish new businesses abroad, and extend and strengthen the Trump brand around the world.
- He has insulted and estranged the leaders of nations who in the past have been our staunchest allies and defenders: the UK, France, Germany, Australia, Canada and Mexico, prompting Angela Merkel to declare that Europe can no longer depend on the United States.
- He withdrew the United States from the Paris climate accords. This does not just create the possibility that the world may not be able to reverse the effects of global warming, but it weakens the U.S. economically by allowing China free rein to create and sell environmentally friendly technology to the rest of the world.
- His pulling the U.S. out of the Trans-Pacific partnership gave China an open field for stronger and closer economic relationships with its smaller Southeast Asian neighbors.
- His Islamophobic policies further demonize America in the Muslim world and allow the Russians an opportunity to assume a dominant role in the Middle East.
- The Mexican border wall. Trump’s repeated threats to pull out of NAFTA and the destablizing effect these bellicose rants have had on our relationship with one of our largest trading partners.
- He injected a virus into the national body politic, throwing it into chaos with his daily, sometime hourly, fact-free tweets. Playing politics to his base, he has increased the volume of disputes to ear shattering levels, encouraging violence, hate crimes and exposing fissures in the racial, gender, ethnic and cultural divides.
- His legislative initiatives, so-called health care and tax reforms, are nothing more than thinly disguised tax grabs designed to make the rich richer and the poor poorer and sicker. And if that was not enough damage, the collateral effect will be to balloon the deficit by denying the federal government revenue it needs to function.
- Demonizing and attempting to delegitimize the free press and using plays out of the the dictator’s playbook when the press calls him on his lies.
Please note that I have not delved into the pre- and post- election contacts his subordinates — or as he likes to call them, his satellites — have made with the Russians, and the nature and substance of those contacts. Did they advance and support the diplomatic interests of the United States, or did they advance and support the private pecuniary interests of Trump and his cohorts. Worse, did those conversations further jeopardize U.S. institutions and security.
If you re-read this 18-point manifesto, it could, with a bit more elegant draftsmanship, easily pass for a first draft of articles of impeachment. You can dismiss each one of these as the discrete, disparate actions of commander in chief who is either not up to the job intellectually and emotionally, or has taken leave of his senses, a 21st century mad King George III.
The net effect of what Trump has wrought has been to bolster Russia’s dominion and power in the international community and weaken the United States as a military and economic power, as well as tarnish our image as a moral exemplar.
Russia cannot compete with the U.S. militarily or economically. Our military budget is roughly three times greater than Russia’s and our economic engine dwarfs the Russian economy. How it gets to compete and win against the U.S. is to throw our politics into chaos and turmoil, diminish our stature with our Allies and make them mistrust us, destroy our strategic and economic pacts, and support the rise of our mutual rival, China, all with the full support and assistance of a president Russia helped to elect.
Now compare what L-POTUS has done against those crimes committed by Benedict Arnold, Tokyo Rose and Aaron Burr.
Arnold attempted to sell out the colonies in the midst of the Revolutionary War, an attempt to strangle the infant republic in its cradle. Burr and his co-conspirator, Wilkinson, wanted to set up a dynasty make war on the young republic. He also planned to annex land in the Louisiana Territory, recently acquired by the U.S. from France, an act roughly equivalent to what the Russians did to the Ukraine in annexing Crimea three years ago.
And Tokyo Rose attempted to demoralize millions of American servicemen throughout the South Pacific and North America. Trump has surpassed all of the Tokyo Roses: he’s managed to demoralize the majority of Americans.
Jefferson was livid about Burr’s attempted insurrection and issued a warrant for his arrest. In a trial presided over by Chief Justice John Marshall in open court, as the Constitution requires, he was acquitted only because of insufficient evidence. The only evidence submitted to the Grand Jury was a copy of Burr’s letter to Wilkinson — the original was supposedly lost — in Wilkinson’s handwriting. And no witness testimony.
The evidence against Arnold was much stronger. His contact and confederate, Major John Andre, was captured with documents and maps of West Point given to him by Arnold. Andre was hanged. Had Arnold not escaped to Great Britain, he no doubt would have met the same fate.
Compare Burr and Arnold and the evidence against them to the actions of Donald J. Trump, and the evidence accumulated against him in the five months since he assumed office and swore allegiance to the Constitution.
Arnold and Burr both had crucial, determinative pieces of evidence, although in Burr’s case it disappeared. In the matter of the U.S. v. Trump, there is no one “smoking gun” document, memo or tape that would clearly establish his guilt. There is, however, a clear and consistent pattern of bad acts, at least 18 of them outlined above, each of which would serve as the basis of an article of impeachment for treason.
As disparate as they may appear, what links them together is that each one piece of evidence is proof of an action which either: (a) undermines the security of the United States; (b) bolsters the standing of an international rival which poses either a security threat — Russia — or an economic threat — China, or: (c) seriously threatens the foundations of our democratic institutions. Allowing the Russian Bear free rein in the Ukraine and the failure to acknowledge the threat to our electoral process, or do anything about it, is little different from Arnold’s sabotage of West Point’s defenses or Burr’s threat to seize land in the Louisiana Territory, set up his own fiefdom and march on Washington DC.
You can take each individual act and characterize it as incompetence, xenophobia, a presidential policy prerogative, a political promise kept, or even a bona fide initiative to Make America Great Again. But when you connect the dots and follow the bread crumbs through the maze, they all lead back to bolstering Russia and China at our expense. One, two or three acts? Maybe a malevolent or incompetent demagogue seeking the adulation of his base. Eighteen separate acts? The actions of a man hell-bent on bringing down the Republic.
The multiple investigations underway — by special counsel Mueller, the House and Senate Judiciary Committees and the FBI — are in their early stages. Thousand of interviews will have to be conducted and tens of thousands of documents collected and analyzed in a process that may take as much as two years before any of the investigations are complete.
We should wait until all the evidence is in before taking premature actions which could jeopardize any final results.
I have little doubt that when the thousands upon thousands of pieces to this puzzle are neatly put together, they will form a complicated tapestry, a complete picture accompanied by a damning narrative leading to the impeachment and conviction of Donald J. Trump.