Dylan Matthews · Monday, May 15, 2017, 7:57 pm
The revelation that President Donald Trump, accidentally or on purpose, revealed highly classified intelligence to the Russian foreign minister and ambassador to the US is shocking. It’s the kind of offense that, when committed by anyone but the president, can lead to a prosecution under the Espionage Act and a significant prison sentence. So it’s hardly a surprise that the Washington Post’s revelation of the Russia leak led to a surge in Google searches for “Trump treason.”
Eliot Cohen, a former senior State Department official for George W. Bush, declared, “If deliberate, it would be treason.”
Here’s the thing, though: This isn’t treason. It’s probably not even illegal; as the Post’s Greg Miller and Greg Jaffe explain in their original piece, the president has broad discretion to declassify information, so it's doubtful he violated the Espionage Act or any other criminal statute by passing along info to Russia.
But treason is a very specific crime with a definition set forth in the Constitution that Trump’s conduct doesn’t come close to meeting, for one simple reason: The US is not at war with Russia.
The US has to be at war with a country for helping that country to be treason
Article 3, Section 3 of the Constitution lays out the definition of treason used in US criminal prosecutions: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
I looked into this issue a few years ago when Edward Snowden faced accusations of treason for disclosing highly classified NSA surveillance programs. UC Davis law professor Carlton Larson told me then that there are two broad categories of treason charges: “aid and comfort” prosecutions, and “levying War” prosecutions.
The latter is rare, and typically involves someone who’s literally using an army to fight the government of the US or one of the 50 states. John Brown was convicted and hanged for treason against the commonwealth of Virginia in 1859 following his ill-fated attempt to launch a slave rebellion at Harpers Ferry. Former Vice President Aaron Burr was prosecuted unsuccessfully in 1807 on charges that he conspired to levy war against the United States and create an independent country in the center of