July 25, 2018 at 10:52 am PDT | by Gabriel Hudson
Treason. Treason. Treason.


Gabriel S. Hudson, Ph.D., a democratic theorist, teaches at George Mason University’s Graduate School of Education and The Schar School of Policy and Government. He is the author of ‘Christodemocracy and the Alternative Democratic Theory of America’s Christian Right.’ (Photo by Oliver Lawrence)

We live in bizarre times. A democratic norm is violated weekly. Today’s scandal detracts from yesterday’s outrage. Immigrant children are still separated from their parents but we moved on to President Trump insulting our allies in NATO. That horror was eclipsed by the disastrous summit with Russian President Putin in Helsinki. That outrage was crowded out by Trump threatening war with Iran via Twitter and the Environmental Protection Agency threatening to revoke California’s Clean Air Act waiver.

It’s hard to keep up, and it’s even more difficult to effectively counter because we are always absorbing the shock and reacting after the fact.

Now, it looks like the president has provided aid and comfort to an enemy. On foreign soil, Trump openly rebuked the unanimous findings of our intelligence community to defend a hostile foreign power that flagrantly attacked our elections and is continuing disruptions for the November midterms. There’s a term for that and it’s important that we use it: Treason. 

The steady stream of news reporting suggests the President is in real legal jeopardy. Though we cannot know exactly what conclusions Special Counsel Robert Mueller will reach in his investigation into Russia’s interference in the 2016 elections, we can predict with near certitude that about half the country will reject his findings outright, regardless of the strength of the evidence. We know there is a battle coming and we need to be strategically preemptive in our messaging. 

Often a political loss can teach us about strategy. I remember watching election results in 2008. Everyone cheered watching Barack Obama’s presidential victory. I also remember anxiously watching the results for Prop 8—the initiative that stripped away same-sex marriage rights in California.

After we stopped reeling, we picked through the Prop 8 rubble to look at what had gone wrong. Political consultant Frank Shubert, who successfully led the ProtectMarriage.com campaign, built out from their anti-gay religious base to project a fear of what might happen if same-sex marriage remained law. Brian Brown, President of the National Organization for Marriage, pounded that message daily, regardless of how many facts and figures and experts said they were wrong and lying.

The lesson of the Prop 8 battle was to get ahead of the adversary’s messaging. Don’t merely respond; direct the debate.

Democrats are now debating whether to even discuss impeachment. Only two presidents have been impeached, Andrew Johnson and Bill Clinton, but they were both acquitted by the Senate. Richard M. Nixon resigned before the House could vote. Despite presidential incompetency and criminal behavior, impeachment has generally been considered a bridge too far. Now it’s not far enough. 

Both the Constitution and Title 18 of the U.S. Code provide a vague characterization of the term “treason” without precise criteria for what counts as treason. But both have strong antecedents in law and constitutional interpretation, if treason wasn’t automatically off the table in “what if” debates.

Here, NOM’s Brian Brown may inadvertently be useful. Brown now also heads the World Congress of Families, part of a wave of U.S. evangelical leaders, including Trump friend Franklin Graham, who laud Putin and Russia for their anti-gay laws. Gay Republican Fred Karger, a former GOP presidential contender, contends that Brown’s activism against LGBTQ people before the Russia Duma and in concert with Russian officials may have violated the Logan Act, a federal law that prohibits unauthorized citizens from collaborating with foreign governments. No one cared. But now there are questions about whether Trump’s most adamant supporters violated the Logan Act by collaborating with Russia to ultimately benefit Trump, if not at his behest. Was their secret collaboration with a hostile foreign power treasonous?

At some point, the Supreme Court will likely weigh in on the Russian investigation. With a conservative majority nearly certain, it is essential that we develop a plain-text, originalist, Scalia-esque interpretation of the Constitution to prepare for battle. The wording of Article 2, Sect. 4 provides that opportunity: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

It is the precise wording and punctuation that is important for Constitutional interpretation. The use of a singular “Conviction” of Treason—separated by commas—suggests that only the President needs to be convicted to remove his Vice President and Cabinet officers. If Trump is convicted of Treason specifically, a plain text reading of the Constitution strongly suggests the entire crew goes. That also means no President Pence.

Even if whipping out the entire administration with one conviction is pure fantasy, pushing for that fantasy is strategically smart. By loudly advocating for elimination of Trump, Pence and the cabinet, merely impeaching the President sounds like a compromise. Hammering the charge of Treason best positions progressives to utilize and maximize Mueller’s findings.

It may be a pipe dream to remove the entire team. We have to be proactive; we cannot afford to keep reacting. Treason’s unique usage in the Constitution makes it an indispensable weapon in our battle to regain democracy. We should start using it now.

You would not be alone. Former CIA Director John Brennan called Trump’s performance next to Putin “treasonous.” “Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous,” Brennan tweeted during the event. “Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin. Republican Patriots: Where are you???”

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