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Treason, John Brennan and Trump: the duck test



The summer of 1787 in Philadelphia was scorching. “Hot and humid,” according to one report. “Old people said it was the worst summer since 1750.” In those pre-air conditioned times, 55 delegates met every day for nearly five months in the Pennsylvania State House—what we now call Independence Hall—to hammer out a Constitution by which the new United States of America would be governed.

By late July, the delegates were frustrated by the endless discussions and quarrels, exacerbated by the heat. Some left the Convention, fed up by what the New Jerseyite William Paterson said were endless rounds “full of disputation and noisy as the wind.” And yet, as August dawned, they had their hardest work still before them: the government’s power to tax, the issue of religious tests, how to deal with rebellious States, and the definition of treason.

On Monday, Aug. 20, the Convention met to consider treason, “a live issue in every state,” since the Revolution itself had pitted the Colonies against the Crown. “How was the Constitution to define treason?” paraphrases the writer Catherine Drinker Bowen, in her story of the Convention, Miracle at Philadelphia. Each State then had its own legal definition of treason. In Virginia, for example, it was considered treasonous to have served as an officer under King George III during the Revolution. North Carolina deemed “murder, rape, robbery and house-burning” as treason. Clearly, a new, single standard was needed.

Yet the delegates had to be careful. They were reminded (by one of the North Carolina delegates, James Wilson) that “it was an old trick of tyrants willfully to extend the definition of treason, thereby gaining much power over the people.” The matter came down to two specific definitions: “giving aid and comfort to the enemy” and “levying war and adhering to the enemy,” both of which had their origins in the 1351 English Statute of Treasons.

A big problem, the delegates soon discovered, was how to obtain proof of treasonous activity. Benjamin Franklin observed that in trials for treason “perjury [was] too easily made use of against innocence.” Wilson noted how “extremely difficult” it could be to find proof of treason. “Seven times, on August 20,” Drinker Bowen writes, “the Convention voted to change the wording of the article involved.” The delegates were determined to make sure that “the Congress could never…employ treason as a weapon against political opponents.”

Somehow, “the Convention achieved…definition,” and Article III ensued. “Treason against the United States,” it declared, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It added, “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt act, or on Confession in open Court.”

Yet arguments raged on even afterwards. Elbridge Gerry, a delegate from Massachusetts, had railed against the definition of treason eventually decided upon. It gave, he charged, too much power to strong government, too little to individual “liberty.” In the end, Gerry and his sympathizers were “shouting against the wind.” The “strong Constitutionalists” carried the day. Americans had fought too hard, and died, to win their freedom. Better that “citizens should surrender a little of their cherished liberties” than that their “domestic tranquility” be undermined.

And now, here we are. In a way, Trump is echoing the Gerry position: strong government, or the “Deep State” as he puts it, has unfairly targeted him politically, depriving him of his “liberties” as President of the United States. Robert Mueller might be described as the representative of “strong government,” determined to protect the “domestic tranquility” by rooting out individuals, including the President, who give “aid and comfort” to America’s “enemies.”

Did Trump’s actions constitute “aid and comfort” for Russia? It sure looks like it–if it walks and quacks like a duck, then… We know Russia’s motive (Putin himself admitted he was against Hillary Clinton). We know how extensively they meddled in our elections. We know how Trump insisted, to the last, bitter end, that they did not. Is Russia our “enemy”? While it is true that we are not technically in a state of war with Russia, it’s true also that we were never technically in a state of war with Vietnam, or Afghanistan, or Iraq, because Congress never took advantage of its power, defined in Article 1, Section 8, to declare war on behalf of the United States.

One can argue for or against closer relations between the U.S. and Russia; indeed, the American people, and our presidents, have been debating this since the end of World War II. But common sense suggests that Russia is the enemy of America—militarily, diplomatically and economically. If you do not so believe—if you think that Russia is a friend to America—then the burden is upon you to prove it, for Russia does not act like America’s friend. Therefore, it seems to me that John Brennan is entirely correct when he says that Donald Trump has committed treason. He gave “aid and comfort” to an enemy nation, and must be held accountable.

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