“The investigation is now more than just an obstruction of justice investigation. It’s more than just a perjury investigation. It’s a treason investigation.”
Those comments, uttered Tuesday by Hillary Clinton’s former vice-presidential nominee, Sen. Tim Kaine, were some of the strongest coming from any elected official since news of a meeting between Donald Trump Jr. and a Russian lawyer was confirmed earlier this week.
That confirmation, in the form of email exchanges setting up the meeting, came from Trump Jr. himself.
The president’s son, who was closely involved in his father’s campaign but has no official role in the White House, said he was releasing the 2016 emails publicly in an effort to be transparent. They reveal that the Russian lawyer claimed to have dirt on Clinton, and was offering it up as “part of Russia and its government’s support for Mr. Trump.”
Trump Jr. seemed eager to accept whatever help Moscow could provide, and attended the meeting. He now says nothing came of it.
But does that, as Kaine and others like Democratic congressman Seth Moulton have suggested, constitute treason against the United States?
Several constitutional and legal experts in the U.S. have responded with a resounding “no.” The way treason is defined in U.S. law makes it unlikely Trump Jr. could ever be tried for it.
Specifically, Article 3 of the American Constitution defines treason against the U.S. as “levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
That’s actually a pretty narrow definition, according to Carlton F.W. Larson, a professor of law at the University of California at Davis whose op-ed on the subject appeared Tuesday in the Washington Post.
Levying war against the U.S., he argues, “generally requires some use of force in an attempt to overthrow the government,” which Trump Jr. obviously did not do. Nor did he technically adhere to an “enemy” or give them aid or comfort.
“For purposes of the Treason Clause, an enemy is a foreign nation or group with which the United States is in a state of war, either declared or actual,” Larson explained. “We are not in a state of war with Russia.”
There is legal precedent to back that up. Julius and Ethel Rosenberg, U.S. citizens who transmitted nuclear weapon designs to the Soviet Union in the 1940s, were eventually convicted of espionage, not treason, for the simple reason that the United States and the U.S.S.R. were not at war.
Did Trump Jr. accept or solicit a ‘thing of value’?
Even if treason is ruled out, that doesn’t preclude the possibility that Trump Jr. (or others linked to the president’s campaign) could be guilty of non-treasonous offences.
The president’s son may have breached American campaign finance laws, for example, which forbid anyone to “knowingly solicit, accept, or receive from a foreign national any contribution or donation … or other thing of value.”
READ MORE: Trump lawyer says Donald Trump Jr.’s Russia email chain did not break the law
The question then becomes: is so-called “opposition research” conducted by a foreign power to unearth information damaging to Hillary Clinton, legally speaking, a “thing of value?”
Rick Hasen, who teaches law and political science at California’s UC Irvine, has been using Twitter to cite past cases where a “thing of value” came in the form of privileged or confidential information obtained by someone outside a campaign.
One such instance came in 2004 when the Federal Election Commission found that a private corporation indeed provided a “thing of value” to George W. Bush’s re-election campaign by handing over a list of conservative activists in 37 states.
Trump, his family and his advisers also still face the federal investigation into possible collusion between the Trump campaign and Russia. Special counsel Robert Mueller, who is heading up that probe, will reportedly be taking a close look at Trump Jr.’s email exchanges.
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