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“This is moving into perjury, false statements and even into potentially treason,” Virginia Sen. Tim Kaine, D-Va., says of investigations into Team Trump’s adventures among the Russians. “We understand why some are raising issues of treason,” ethics lawyers Norman Eisen and Richard Painter write in The New York Times.
A whiff of treason is in the air. But perhaps in their zeal to discredit Donald Trump, the Democrats and the liberal media are grotesquely overplaying their hand. That is what we’re being told by a variety of Trump defenders and even some Trump critics. Such talk, complains attorney Alan Dershowitz, is “overwrought.”
As a legal matter, Dershowitz is certainly correct. The treason clause of the Constitution is not relevant to our current situation. Whatever else they may have been doing at their Trump Tower meeting with Russians, Donald Trump Jr. and his associates were not “levying war” against the United States or “adhering to their enemies.” If criminality is at some point uncovered by the multiple ongoing investigations of the Trump campaign, other statutes — like the Computer Fraud and Abuse Act — are far more likely to be applicable.
But treason is not merely a specific crime. It is also a moral category. Used in this sense, it encompasses disloyalty to the country and betrayal of its basic principles and interests.
On June 3 last year, Donald Trump Jr. received an email offering him “official documents” containing what was described as “very high level and sensitive information” from Russia’s chief prosecutor that would “incriminate” Hillary Clinton and which was “part of Russia and its government’s support for Mr. Trump.” Trump Jr.’s response: “if it’s what you say I love it especially later in the summer.” Days later, the now famous meeting in Trump Tower followed.
What is plain as day from Trump Jr.’s own words is that he hoped — gleefully — to acquire dirt to use against Hillary Clinton by meeting with someone identified to him in the email chain as a “Russian government attorney.” What is also plain as day — and should have been obvious to any sentient American, including Trump Jr., and fellow meeting attendees campaign chairman Paul Manafort and Trump son-in-law Jared Kushner — is that if the Russian government possessed such dirt, it either came from or could have come from the Russian intelligence services and was being dangled before them by the Russian government to advance Russian purposes.
To spell it out a bit more, interference of any sort by any foreign country in our elections is never acceptable. But Russia is not just any foreign country. It is a hostile power with a long history of spying on the United States and also attempting to influence our politics by both overt and covert means. Any derogatory material on Hillary Clinton which the Russians possessed might have been obtained by the dark arts of espionage: by blackmailing one or more of her associates, by planting moles in her entourage, and/or by intercepting her and her associates’ telephone calls and (as actually happened) hacking their emails.
All such activities are strictly forbidden if carried out by Americans on American soil. Blackmail and impersonation are punished by the criminal code. The Fourth Amendment of the Constitution protects us against unreasonable searches and seizures, including warrantless surveillance of our telephone calls and emails. But violating such legal protections is the essence of the espionage profession. One of the CIA’s principal functions is to obtain information by breaking the laws of other countries. So, too, with the Russian intelligence service, the FSB; in seeking to achieve Russian national objectives, it tries to break American laws whenever it can usefully get away with it.
It doesn’t matter what actual coordination between the Trump campaign and agents of the Kremlin followed or did not follow the meeting in Trump Tower. By expressing a desire to accept the fruits of a hostile power’s lawbreaking, Trump Jr. and his campaign confederates revealed a willingness to do three things that no patriot would ever contemplate: further the interests of a hostile foreign power, collude with that hostile foreign power to subvert our democratic electoral processes, and rely on information obtained by that hostile power to undercut the fundamental protections afforded to Hillary Clinton (along with every other citizen) by our laws and the Constitution itself.
A cottage industry of Trump backers is now justifying the receipt of such material. Former House speaker Newt Gingrich calls the hullaballoo about the meeting the product of “fevered insanity.” Powerline, one of the leading conservative blogs, has gone so far as to say that Trump Jr.’s attendance at the meeting, born out of a desire to uncover crimes committed by Hillary Clinton, was not treason at all but “a potential service to the country.”
Who could have ever imagined that in the 21st century, the movement and the political party that carried the torch to victory in the Cold War would assume the pose of Putin’s poodles? Remember when some conservatives were promiscuously applying the charge of treason to those on their left? Ann Coulter even wrote a book called Treason, finding a surfeit of what she called “liberal disloyalty” across five decades.
Yet today, having signed on to and staked their reputations on one of the strangest political movements in our entire history, pro-Trump conservatives — and not just extremists like Coulter — cannot see disloyalty to the country even when it is explicit. Those justifying a willingness to receive the fruits of Russian espionage are operating as an incipient political and intellectual fifth column. We need to call things what they are. And what they are, in the non-legal sense of the word, is treasonous.
Gabriel Schoenfeld, a member of USA TODAY’s Board of Contributors and the author of Necessary Secrets: National Security, the Media, and the Rule of Law, was a senior adviser to the 2012 Romney for President campaign. Follow him on Twitter: @gabeschoenfeld