No charges of treason had been brought against former national security adviser Michael Flynn, yet during his sentencing hearing, a federal judge openly mused about whether Flynn had committed that crime.
U.S. District Judge Emmet G. Sullivan pointed at the American flag in his courtroom on Monday and accused Flynn, who admitted in December 2017 that he lied to FBI agents, of betraying his country. Later on, Sullivan asked prosecutors from the office of special counsel Robert S. Mueller III whether Flynn, a career public servant and retired Army lieutenant general, could be charged with “treason.”
Flynn may be guilty of legally and morally reprehensible conduct, but it does not mean he is a “traitor” who engaged in “treason.”
That it occurred to Sullivan even to raise the question is a sign of how misused the terms have become in contemporary political discourse.
“Treason” is the only crime codified in the U.S. Constitution.
The word had been interpreted so capriciously in pre-revolutionary England that it became a tool for political oppression. The Founding Fathers went out of their way to enshrine protection, defining it in a narrow and specific way, University of Texas law professor Stephen Vladeck said in an interview with The Washington Post.
Article 3, Section 3, of the U.S. Constitution defines treason as “levying War” against the United States or providing “Aid and Comfort” to an enemy of the country. The framers imposed evidentiary requirements that do not exist for any other crime. A conviction, which is punishable by death, necessitates either the testimony of two witnesses about the treasonous act or a confession in open court.
The crime involves aiding an enemy in a time of war. Since special counsel Robert S. Mueller III began his investigation into the Trump campaign and Russian interference in the 2016 U.S. presidential election, talk of treason has come hand-in-hand with debate over whether Russia is an enemy of the United States.
“We can’t just argue we’re at war with Russia for purposes of treason unless we’re willing to accept the full legal consequence of what it would mean to be at war. Think about what that would mean,” Vladeck said.
Flynn’s foreign involvement was not with Russia, but Turkey — a U.S. ally and fellow NATO member.
(Sullivan’s theory was that Flynn acted as a foreign agent for Turkey at the same time he was the president’s national security adviser. This basic timeline, on which Sullivan’s remarks depended, was incorrect. Flynn’s work for the Turkish government ended before he began his official position. For that error, Sullivan apologized in court Monday.)
There is, of course, a colloquial “Benedict Arnold” understanding of “traitor,” meaning an individual who has been disloyal and committed “treason.”
Still, Vladeck said, “we should not want anyone — judges or politicians — suggesting conduct we really don’t like might be treasonous because of how much we don’t like it.”
But should federal judges be able to invoke the excuse of colloquial usage?
No, lawyer and journalist Glenn Greenwald told The Post.
“Judges are not acting as political pundits when they’re sitting on the bench, wearing a robe. They’re acting as officers of the law,” he said. Anything they say should be treated as being legal in nature and not excused as colloquial, and Sullivan framed his question to the prosecutor as a legal concept.
Treason is regarded as an evil and the gravest of offenses — morally and ethically. It is a betrayal of the entire country, not just a particular victim, Greenwald said, calling it “the biggest stain on your life and your legacy.”
When a federal judge suggests that a high-ranking government official and military officer might be guilty of the crime, it is newsworthy. “It gives it a stamp of judicial authority,” as opposed to a “ranting, angry partisan on cable news who carelessly grabs for the word,” Greenwald said.
Under the current administration, the term is tossed around with remarkable frequency by even the president himself.
In January, Trump called text messages sent by an FBI agent formerly involved in the Russia investigation “treasonous.” In February, he criticized Democrats who did not applaud his State of the Union address, labeling them “un-American” and their conduct possibly “treasonous.” Tweets from Trump in September and November suggested that the anonymous author of a New York Times op-ed and Deputy Attorney General Rod J. Rosenstein should be charged with the crime of treason.
In the past year, the president’s own behavior has prompted debate over whether it rises to “treasonous” levels.
Despite current common usage, treason has been prosecuted only rarely in the nation’s history, according to Kenneth Mack, a professor of law and history at Harvard University.
The case of abolitionist John Brown, who tried to lead an armed slave revolt at Harpers Ferry, Va., in 1859, helping to bring on the American Civil War, is among the most famous. Brown was charged, convicted and executed. Indicted in 2006, Adam Gadahn, a U.S.-born Islamist militant who became the face of al-Qaeda, was the first American charged with treason in half a century.
“It’s been very rare, and those circumstances look very different from any interpretation of what one might think Flynn has done,” Mack said.
Even if Sullivan was privy to damning information about Flynn of which the public is unaware, the veteran judge erred Monday.
“He obviously was upset and skeptical of whether it was right not to give Flynn jail time, even though that’s what the prosecution was asking for,” said former New York Court of Appeals judge Robert Smith. Mueller argued this month that Flynn should receive no prison time, citing Flynn’s substantial assistance to the Russia investigation.
It should not be surprising when judges reinforce trends seen in popular political discourse. Yet that is why the invoking of treason has for many been deeply disconcerting.
“Judges are human, too. They make mistakes all the time,” Smith said.