Can Trump be tried for treason?

Can Trump -- or Michael Flynn -- be tried for treason?

A number of sources insist that Donald Trump cannot be tried for treason because we are not in a declared war with Russia. I haven't been able to find the court ruling which made this adjudication, but such rulings should be reconsidered as times change. Remember, Plessy vs. Ferguson established "separate but equal," which was once considered inviolable.

Obviously, the "declared war" standard is obsolete. We don't declare war anymore. If this country is ever attacked with nuclear weapons, the missiles will almost certainly not be sent by a declared enemy.

Consider the notion of an American General who substantially aided the Axis powers just a few days before December 8, 1941, when war was formally declared. Can you honestly argue that such an act would not have been treasonous?

Before you answer, you should know that my question is not hypothetical: On December 4, 1941, the Chicago Tribune (a pro-fascist newspaper) published the details of America's contingency war plans against Germany. At the time, these plans were our most closely-guarded secret. Publication was intended to strengthen isolationism and to portray FDR as a warmonger, even though a contingency plan was only prudent. 

Who was the leaker? The chief suspect was General Albert Wedemeyer, an anti-Semite and America Firster who worked in the War Plans Division. He despised Roosevelt. Although he always denied the charge, there was hard evidence against him -- enough to convince J. Edgar Hoover of his guilt. Wedemeyer probably would have been indicted if not for the Pearl Harbor attack; as the nation mobilized for war, such a scandal would have injured morale.

Years later, Senator Burton K. Wheeler -- an anti-FDR Democrat -- said that he leaked the document after acquiring it from "an Army Air Corps captain." Although some believe that he referred to General "Hap" Arnold, strong evidence points to Wedemeyer: A copy of the war plan was found in his safe, with sections underlined -- the same sections which appeared in the newspaper.

Interestingly, General Wedemeyer later became a right-wing conspiracy-monger -- the Michael Flynn of his day, if you will. (As some of you may know, Wedemeyer's name crops up in JFK assassination lore.)

Let us posit that investigators had found inarguable, conclusive evidence against Wedemeyer. Could he have been tried for treason? Let's rephrase the question: Should he have been tried for treason?

I believe so. The Constitution defines treason not just as giving aid to a declared enemy but also as personally making war against the United States. In my view, aiding Hitler by leaking the plan constituted an act of war against the United States; whether Wedemeyer colluded with Germany is immaterial. I certainly don't think that Wedemeyer's guilt was lessened by the fact that his betrayal occurred four days before the actual declaration of war.

The big question: Would a court have agreed with my view?

Yes and no. A court in 1942 or 1943 might well have seen things my way. In other years, a court probably would have ruled differently. The world situation inevitably affects the thinking of jurists, and differing times produce differing rulings. In an emergency situation -- when the country faces an existential crisis -- a court would probably be more likely to define treason in a way that matches my personal definition.

Of course, as a practical matter, such a case would inevitably come before the Supreme Court, and...well...Kavanaugh. Ew.

However...

There are other precedents. Did you know that "treason" can also be a state crime, and that it can be tried on the state level?

The most famous example would be that of John Brown, convicted in November of 1859 for committing treason against the State of Virginia. This, despite the fact that he did not live in that state, and his ill-fated raid did not lead to any deaths.

Another example: Governor Thomas Dorr of Rhode Island, who was angered by a state law which allowed only white males of property to vote. In 1842, Dorr tried to establish a counter-government, in a doomed effort called "Dorr's Rebellion." He and five conspirators were convicted of treason against Rhode Island, which eventually pardoned Dorr and dropped the property requirement. (The federal government was surprisingly neutral in all of this.)

Which brings us to today. Technically, the state of Florida could bring treason charges against Donald Trump; the minimum penalty is 5.5 years, while the maximum is 30 years. I can find nothing to indicate whether New York still has a treason law on the books. In 1781, the New York legislature forbade anyone from printing or declaring in public that the King of Great Britain ought to have "any Authority, or Dominion, in or over this State or the Inhabitants thereof." As long as Donnie avoids doing that, he may be in the clear.

That is: He would be in the clear in that particular state.

Quite a few other states still have treason laws. The John Brown precedent proves that one need not be a resident of the state to be executed as a traitor. Arguably, Trump could be tried in (say) California or Vermont, where those pacifistic, tofu-gobbling blue-state SJWs still have a "Death to traitors!" policy.

Michael Flynn could be charged as a traitor in Virginia. Why not?

As Marcy notes, Emett Sullivan's inquiries about Flynn's potential treason were hardly so outrageous as some believe. The prosecution responded with these words:

And that affords us an opportunity to clarify something on our end which is, with respect to treason, I said I wanted to make sure I had the statute in front of me. The government has no reason to believe that the defendant committed treason; not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason.

Marcy:

Now, I will be honest with you: I was screaming at Sullivan when I read this being tweeted out in real time, in part because I spend so much time arguing that Trump and his flunkies won’t be charged with treason because we’re not at war.

Were we at war when John Brown was hanged for treason against the state of Virginia? No, we were not.

Marcy notes that the judge has had access to materials not available to members of the public.

It should gravely worry the Trump people that Sullivan’s comments about whether Flynn’s behavior was treasonous came from someone who just read about what the Mueller investigation has discovered.

All of this seems to be consistent with Mueller reviewing Flynn’s actions, reviewing statute, finding that Flynn’s behavior did rise to the standards described in 18 USC 951 (with which Van Grack said he could have been charged), but did not rise to treason (as it clearly did not).

I'm not sure that things are so clear. At any rate, what about the cognate Virginia statute?

Marcy wants to dampen all talk about treason. I do not. I think this issue should become a wildfire -- and that courts should argue the matter as the fire rages, precisely because the fire rages. Why? Because the threat to democracy is indeed existential, and it's time for us to act accordingly.

We should overturn previous rulings on what constitutes treason. Again: In Plessy vs. Ferguson, the Supreme Court established a precedent; nevertheless, times changed and "separate but equal" is no longer the law of the land.

As for the state court option: The idea may seem fanciful, and I admit that I wrote parts of this post while smiling whimsically. But perhaps that sense of whimsy was misplaced. Perhaps desperate times require desperate measures.