During an impromptu press conference at the White House on Thursday, President Trump was asked by a reporter to be a bit more specific with one of the pejorative claims he’s been making in recent weeks.
“Sir," NBC’s Peter Alexander said, "the Constitution says treason is punishable by death.”
Trump gave a slight nod of acknowledgment.
“You’ve accused your adversaries of treason,” Alexander continued. “Who specifically are you accusing of treason?”
Before we get to Trump’s response, here’s an example of Trump using the phrase on Twitter.
It is not the only example.
“Well,” Trump replied, “I think a number of people. And I think what you look is that they have unsuccessfully tried to take down the wrong person."
“If you look at [former FBI director James] Comey,” Trump said, “if you look at [former FBI deputy director Andrew] McCabe, if you look at people probably higher than that.”
Comey and McCabe are two of Trump’s favorite long-standing targets. Both ended up being fired from the FBI during his administration, the former in May 2017 -- inadvertently kicking off the investigation by special counsel Robert S. Mueller III -- and the latter last year shortly before he was eligible to retire with full benefits. Trump has long blamed McCabe in particular for his role in the investigations into members of Trump’s campaign team, investigations which began on Comey’s watch.
It’s important to pick out that more vague descriptor used by Trump though: “People probably higher than that.”
Who’s higher than the director of the FBI? Well, the attorney general who, in 2016 at the time of the start of the Russia probe was Loretta Lynch. And above that, the president. Trump has obliquely suggested in the past that former president Barack Obama had a direct role in calling for an investigation into Trump’s team, an implication for which he’s never offered any evidence. (In fact, his entire construct that his team was “spied on” is at best iffy.)
But notice what’s happened here: Trump’s gone from nodding at the idea that treason demands execution to hinting darkly that senior officials in his predecessor’s administration might have committed the crime.
It’s an absolutely ridiculous assertion, mind you. For all of Trump’s overheated rhetoric, none is as easily dismissed as this claim of “treason.” Why? Because, as an expert with whom we spoke in March explained, the constitutional definition of treason to which Alexander referred is very specific in its scope.
“You can commit treason in one of two ways,” Carlton F.W. Larson, professor of law at the University of California at Davis and author of the upcoming book “The Trials of Allegiance: Treason, Juries and the American Revolution,” said when we spoke by phone. “One is you can levy war against the United States, which is essentially raising an internal rebellion to overthrow the government. ... The other would be adhering to the enemy, giving them aid and comfort. And ‘enemy’ is defined very precisely as foreign nations or groups with whom we are in a state of open war.”
So unless Comey and McCabe raised an army to take on the U.S. military or provided direct aid to countries who are officially at war with the U.S. -- countries to be named later -- they didn’t commit treason. By definition.
In fact, Larson said that Trump’s use of the term was precisely what the Founding Fathers were hoping to avoid.
“It was very clear," he said: "One of the reasons to limit the offense the way it was done in Article III was to prevent it from being a political tool where people in power use it to suppress their political enemies.”
So there was no treason, by definition. Certainly a reassurance to the former FBI leaders.
They weren’t alone in being identified by Trump.
“If you look at Strzok, if you look at his lover Lisa Page, his wonderful lover. The two lovers,” Trump said. Here he’s referring to the two FBI employees who exchanged text messages disparaging Trump, Peter Strzok and Lisa Page.
“They talked about the insurance policy just in case Crooked Hillary loses. And that didn’t work out too well for them. So you look at them, they want an insurance policy so that should she for any reason lose -- Remember? One hundred million to one. Maybe he said 100 million to nothing,” Trump continued. “But should she lose we’ll have an insurance policy and we’ll get this guy out of office.”
Trump’s referring to two of the messages exchanged by the pair. In one, Strzok said that Hillary Clinton should win the election by a 100 million to zero margin. In another, sent shortly before the election, Strzok tells Page that they need to press forward with their investigation into the possibility that Russia was leveraging members of Trump’s campaign even though it was likely that Trump would lose. It was like taking out an insurance policy when you’re relatively healthy: You might just need it after all.
That “insurance policy” line, though, has been misinterpreted -- willfully or not -- to suggest that the entire Russia probe was an “insurance policy” against a possible Trump victory and could be used to remove him from office. That’s how Trump’s using it here, the obvious flaws in that logic (e.g., Trump is still in office after the investigation) notwithstanding.
“That’s what they said and that’s what they meant,” Trump said. “That’s treason. That’s treason. They couldn’t win the election and that’s what happened.”
That’s not what they meant. That’s not what happened. And that’s not treason.
But the president of the United States nonetheless directly and incorrectly accused four former government officials of a capital crime -- and indirectly hinted that perhaps the man who preceded him in office was similarly culpable.