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Trump’s actions in Helsinki don’t have to be treasonous to be impeachable

The founders intended impeachment for figures beholden to a foreign power

President Trump and Russian President Vladimir Putin shake hands during a joint news conference after their summit in Helsinki. (Getty Images)

It might not be treason, but it’s certainly treachery.

On Monday, President Trump gave a craven and astonishingly servile response to a simple question. A reporter asked Trump whether he believed Vladimir Putin, who denies Russian interference in the 2016 election, or the entire U.S. intelligence community, which has concluded that Russia did.

Trump refused to issue even a mild denunciation of Russian electoral interference in his response. Instead, he ranted about Hillary Clinton’s emails before emphasizing, “Putin was extremely strong and powerful in his denial.”

That was enough to shake Congress from its 18-month slumber — rousing it to speak, if not act. As House Speaker Paul D. Ryan (R-Wis.) noted, even the badly compromised House Intelligence Committee concluded that Russia interfered in the 2016 election. Sen. John McCain (R-Ariz.) thundered that Trump’s statement was “one of the most disgraceful performances by an American president in memory.” But the sharpest words came from former CIA director John Brennan, who argued that Trump’s obeisant performance “rises to & exceeds the threshold of ‘high crimes & misdemeanors’” and called it “nothing short of treasonous.”

Is it treason? It’s easy to see why people are asking. Russian attempts to influence the 2016 election are well documented. Evidence is mounting that the Trump campaign illegally conspired or coordinated with Russian government operatives — Robert Mueller has already secured guilty pleas from three campaign workers and campaign manager Paul Manafort is in jail awaiting trial. Trump is also notably unwilling to act against — or even criticize — Russian interests. And he apparently lacks interest in doing anything to secure the United States against future election interference.

For all this, however, Trump’s conduct might not rise to the technical definition of treason. And yet it might still be impeachment worthy regardless.

Under the Constitution, the president may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” And in fact, the Constitution laid out a precise definition for treason, one that remains a part of criminal law today: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” As James Madison explained, the Founders set this high bar to avoid the “new-fangled and artificial treasons” that had multiplied over English history. For example, England had developed a doctrine of “constructive treason,” under the heading of “compass[ing] or imagin[ing] the death of our lord the King,” that included simply expressing support for limiting royal authority.

In the past, Congress has followed this lead, avoiding specifically impeaching officials for treason, even where it is clearly an appropriate description of the offense. For example, in 1862, in the middle of the Civil War, Congress impeached and convicted a federal judge in Tennessee who joined the Confederacy and supported armed rebellion. But the charge was not treason. Rather, Congress impeached him for high crimes and misdemeanors that essentially encompassed that charge, including conspiring “to oppose by force the authority of the Government of the United States” and “organiz[ing] armed rebellion against the United States.”

Why would Congress avoid the word “treason” in such a case? Besides precisely defining treason, the Constitution also imposes special proof requirements: “the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” So a treason charge might have suggested a higher burden of proof, given the narrow definition of treason and the two-witness rule. And John Bingham, the Republican member of Congress (and, later, principal framer of the 14th Amendment) who led the impeachment charge against the Tennessee judge, was also a believer that an indictable crime, like treason, wasn’t necessary to warrant impeachment.  In short, since it was not necessary to charge and prove treason, Congress avoided it.

It’s like the movie “Mean Girls,” except it’s in the White House. (Video: Gillian Brockell/The Washington Post)

Given the Constitution’s narrow definition of treason, it’s uncertain whether Trump’s conduct fits the bill. There is an open legal question as to whether Russia can be considered an “enemy” of the United States. It is certainly a rival power and occasional adversary, but some experts suggest that the term “enemy” should be defined narrowly. The president — who  calls Europe a “foe” of the United States and accuses members of Congress of “treason” for refusing to applaud his speeches — may not care about these distinctions, but the Constitution does.

And yet the particulars of the question may not matter, because the Founders envisioned a character like Trump, and they offered an alternative means for dealing with this sort of behavior.

Whether or not we call Trump’s conduct “treason,” it is remarkably close to a scenario discussed in 1787 by Constitutional Convention delegate Gouverneur Morris, the “penman of the Constitution.” As Morris argued, “[The president] may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the [president] in foreign pay, without being able to guard against it by displacing him.” Morris concluded that the president “ought therefore to be impeachable for treachery.”

We don’t yet know precisely why Trump is so submissive to Putin. Perhaps the Russian intelligence services have compromising information — if not the “pee tape,” then evidence of criminal activity at Trump’s businesses or in the 2016 campaign. Perhaps Trump’s admiration for the “extremely strong and powerful” Putin masks deeper insecurities. Or perhaps he is simply dependent on Russian money for his personal finances. In any event, the fact that Trump is seemingly incapable of criticizing or responding to Russian aggression indicates that  Russia has some sort of hold on Trump. In the wake of Helsinki, even Republican Sen. Ben Sasse dodged a question from a radio host as to whether Putin has kompromat or compromising information on Trump, instead of ruling it out.

Overall, the evidence suggests that Trump has “betray[ed] his trust” and justifies an immediate impeachment investigation.

Trump’s betrayal may not meet the technical definition of “treason,” but it certainly carries the stench of “treachery,” and that is grounds for impeachment.