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Adam Schiff did not commit treason

Greg Nash

One of the unfortunate consequences of the election of Donald Trump has been the need, with alarming frequency, to refresh our collective memory on basic rules of the Constitution. The latest entry is treason, as the president has recently suggested that Democratic Representative Adam Schiff, who is the chairman of the House Intelligence Committee, ought to be “questioned at the highest level for fraud and treason.”

The text of the Constitution is relatively straightforward when it comes to treason. The third section of the third article spells that treason against the United States “shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Treason is the only crime defined in the Constitution, and the framers defined it narrowly. It consists only of waging war against the United State or adhering to enemies of the nation by giving them aid and comfort.

There are relatively few cases in which the federal courts have had the opportunity to explain the text of the Constitution in greater detail, though it has been a subject of commentary. The legal scholar George Fletcher, for example, has argued that the “distinguishing feature of treason in the Anglo American tradition” is the “element of breached loyalty.” Indeed, the statutory requirements for treason in the criminal code presume the defendant owed “allegiance to the United States.”

Adhering to enemies of the nation suggests that the individual, to have engaged in treason, must identify with those enemies, to the extent that his or her heart does not lie with the United States. It is no simple matter to demonstrate such adherence. As the federal appellate judge Learned Hand famously observed in one of the few cases on the subject, actions innocent on their face will not necessarily support a charge of treason.

Consider the conduct of Schiff that Trump believes is treasonous. The New York Times reported that the president maintains Schiff engaged in treason when he summarized what the president said to his Ukrainian counterpart during their phone conversation. Schiff characterized part of that conversation as something akin to what members of organized crime might say, essentially that in light of past favors from the United States, the president had implied that it was time for Ukraine to reciprocate.

It is not at all clear how the characterization of the conversation by Schiff could be regarded as treasonous. Schiff was not in any sense waging war against the nation. Neither did his characterization of the statements by Trump suggest that his allegiance does not lie, first and foremost, with the United States. The enemies of Trump might surely derive some aid and comfort from the remarks by Schiff, but the president is not the nation.

English law long ago had suggested that ill thoughts toward the monarch alone might qualify as treasonous. As Fletcher has explained, this version of treason “failed to find its way into the American Constitution,” and for very good reason because the framers would never “regard the president as the embodiment of the state or as the object of our allegiance.”

The crime of treason embraced by the framers goes to the very core of the American experience. Having freed themselves from English rule, the colonies drifted under the Articles of Confederation but were united by the ratification of the Constitution. Unlike any founding document before, the Constitution made clear that, in the United States, the people are sovereign, not the federal government, or any one part of it, or any one person in it. Americans pledge allegiance to an ideal, not to a person. Nothing Schiff said at the hearing suggests a betrayal of this principle.

Indeed, one might plausibly argue that Trump himself strayed closer to the line. Imagine credible allegations that the president was willing to consort with a foreign nation in pursuit of personal rather than national interests. While it does not rise to the level of treason, such conduct inches sufficiently close that it would have alarmed the framers. After all, they knew that while geography might protect the United States from foreign invaders, it would not insulate the young nation from corrupting influences. The danger is, as Alexander Hamilton had declared it, “the desire in foreign powers to gain an improper ascendant in our councils.”

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”

Tags Adam Schiff Constitution Democracy Donald Trump Government Impeachment

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