Алексей М/Flickr

I can’t imagine that Glenn Greenwald is too pleased to see James Risen’s latest article for The Intercept. Risen not only does a brilliant job of concisely explaining the conclusive evidence that Russia was responsible for the 2015 and 2016 hacks of the Democratic Party, he goes farther and makes the case that Donald Trump is plausibly guilty of treason which carries a potential penalty of death. Risen notes that most people don’t want to “go there,” but he’s willing to discuss it.

In some ways, I wish he wasn’t. At least, I think it’s a distraction from the main content of his article.

Still, Risen made a better case for treason than I thought possible. I’ve written that idea off from the beginning based on the fairly simple idea that Russia (at least at the time the collusion allegedly took place) could not be considered an “enemy” of the United States in any legal sense. To be more precise, even if our country should have considered Russia an enemy, our relationship wasn’t treated that way in most respects.

But the more you consider this question the murkier it gets. America has gotten out of the habit of declaring war on its enemies. And this makes it harder to draw a bright line around which countries are our enemies and which countries are not. If we apply the standard that we must be engaged in active combat, that would prove problematic in cases where we’re fighting through proxies, which was the case for the entire Cold War. Or we could look at the situation in Syria where both Russia and the United States have combat forces, but sometimes they are working for a common purpose even if usually they are not.

Ultimately, I think the strongest case against the treason charge is that Trump openly questioned our current relationship with Russia during his run for president. This certainly aroused surprise, outrage, consternation and suspicion, but it wasn’t considered treasonous by the electorate, clearly. If the proof that we were enemies with Russia is that we had placed sanctions on them for annexing Crimea and making incursions into Eastern Ukraine, then the people’s selection of Trump, despite his clear skepticism about those sanctions and willingness to lift them, seems to undermine the case. Do people at the ballot box have a say in who our enemies are and what constitutes traitorous behavior? I think their opinions have to be weighed heavily, if not perhaps as completely decisive.

Defining Trump’s stated policies as treasonous would run a gigantic risk of suppressing free speech, especially if it relied on a retroactive perspective that wasn’t available or prevalent at the time.

But this is a chicken and egg problem, isn’t it?

Looking back, we know now that Russia was doing more than run-of-the-mill espionage. They were trying to change the outcome of a U.S. election and they committed crimes in the furtherance of that project. Whether people knew or acted like it or not at the time, it’s clear that Russia was our enemy in the period when collusion is suspected to have taken place.

So, the collusion question comes back to the fore.

Let me to try to clarify this with a hypothetical example. Let’s say that this country was surprised in some kind of Pearl Harbor-type attack by a country that we didn’t consider to be an enemy. If we found out later on that a group of Americans were knowledgeable about the preparations and staging for this attack and sought to benefit from it politically, then we probably would have no problem classifying them as traitors. In that case, it wouldn’t matter that many people had thought we should improve relations with this country or even that the people voted for a candidate advocating improved relations. Those people were operating with incomplete information, but the traitors were not.

This is why the case for treason is stronger than I originally thought before reading Risen’s piece. It really hinges on what individual actors in the Trump campaign, including Trump, knew about what Russia was doing. So, in that light, let’s look again at the email Rod Goldstone sent Donald Trump Jr. when he initiated contact to set up the June 9th, 2016 meeting in Trump Tower.

The June 3, 2016, email sent to Donald Trump Jr. could hardly have been more explicit: One of his father’s former Russian business partners had been contacted by a senior Russian government official and was offering to provide the Trump campaign with dirt on Hillary Clinton. The documents “would incriminate Hillary and her dealings with Russia and would be very useful to your father,” read the email, written by a trusted intermediary, who added, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.”

This is a part of the puzzle. The most important thing that we know for certain is that Goldstone explicitly wrote that the meeting was to be part of the Russian’s government effort to support Donald Trump. Without question, the Trump campaign knew that Russia was trying to help them win.

Whether the Trump team thought of it or not, this was already a form of attack on our country. But it’s not the whole picture. The Russians did more than provide some unsavory material about Hillary Clinton and other Democratic operators. They committed crimes in order to obtain that information. They hacked U.S. voting software suppliers and tried (perhaps successfully in some cases) to gain access to the computers of state and local election officials. They spent money on political advertising. They worked overtime to influence public opinion through the use of trolls, bots, authors of fake news, and social media tricks to boost legitimate news unfavorable to Clinton.

It matters greatly whether or not Trump or members of his team were aware of some or most of these activities. Jill Stein may have been unaware of them when she agreed to let the state-run cable news channel RT host the Green Party presidential debate, but what if the Trump campaign was witting?

This is a different way of looking at the question of treason. It’s not whether or not Russia was an enemy so much as whether what they did can be considered an attack akin to Pearl Harbor. If the act of interference changed Russia into an enemy instead of just one country among several (like Iran, for example) with which we have major disagreements, then anyone who was in on what they did can be considered a traitor.

To be honest, I am not comfortable with this line of argument. Not only do I think it’s a distraction from getting to the bottom of what happened, but it touches too closely on free speech and honest disagreement. It reminds me a bit of the folks who had their careers negatively impacted or ruined because they had been premature anti-fascists when they took the anti-Franco side during the Spanish Civil War. In that case, anti-Soviet hardliners looked back in time to before World War II to argue that people had been too sympathetic to communists. Setting aside that prescience about the greater threat of fascism should have been rewarded rather than punished, it’s problematic to judge people for what they believed in one era when things fundamentally change later on. It’s not that I’d apply this defense to the Trump team if they were actually witting, but there were (and still are) plenty of people who think we should seek better relations with Russia and I don’t think they should be tainted with suspicion of treason.

In my view, even if a treason case can be made, it would be too messy and inevitably involve too much collateral damage. I don’t think anything is gained by going down a path that can lead to hysteria or McCarthyist purges. It would also escalate tensions with Russia in a way that might not be in our foreign policy interest, or tie future politicians’ hands who want to improve relations but feel that they cannot.

Yet, I have changed my mind about the basic charge. I thought it was preposterous and totally unsupported by the language of the Constitution and the law. I no longer think that. If collusion is convincingly demonstrated, I now think it’s a much closer call.