A Guide to Treason 2.0

How the Constitution could cover cyber attacks.
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President Donald Trump shakes hands with James Comey, director of the Federal Bureau of Investigation, during an Inaugural Law Enforcement Officers and First Responders Reception in the Blue Room of the White House on January 22nd, 2017, in Washington, D.C.

On Monday, Federal Bureau of Investigation Director James Comey confirmed that the FBI is investigating the possibility of collusion between the Trump campaign and Russia. Following Comey’s testimony, historian Douglas Brinkley declared, “There’s a smell of treason in the air.”

Between revelations about “longtime [President Donald] Trump confidant” Roger Stone and the controversies surrounding former Trump campaign chair Paul Manafort, it’s clear that key Trump campaign staff were in contact with Russia. Stone has admitted to being in contact with Guccifer 2.0, likely a front for the Russian government, and repeatedly gave advance notice of disclosures from WikiLeaks, which has been acting suspiciously like an agent of the Russian government. Stone is now on the hook with the Senate Intelligence Committee. And at Monday’s White House briefing, Press Secretary Sean Spicer conceded that Stone worked on the campaign, and that he and the president “had a long relationship going back years where [Stone] would provide counsel.”

Media outlets and social media are filled with accusations of collusion, calls for a special counsel, and queries about treason. Representative Maxine Waters tweeted simply, “Get ready for impeachment.”

If Trump participated in, facilitated, or encouraged a Russian cyber attack intended to overthrow the United States government by changing the outcome of the 2016 election — and then promoted Russia’s interests after assuming office — Waters may get her wish. Those acts could amount to an impeachable offense. They could even be treason.

Treason has traditionally been understood as a crime defined by clear binaries — at war vs. at peace; enemy vs. ally — and requiring physical conflict. Here, no shots have been fired, no battles pitched, unless cyberspace can be understood as a theater of war within the meaning our Framers envisioned. And perhaps it can.

Article III of the U.S. Constitution dictates that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Conviction of treason requires “the testimony of two witnesses to the same overt act, or on confession in open court.” The Framers tasked Congress with determining the appropriate punishment, barring only an “attainder of treason” that would “work corruption of blood, or forfeiture” after the death of the “person attainted.”

In codifying treason, Congress hewed to the Constitution’s language, specifying that it applied to those “owing allegiance to the United States.” Guilty parties, per Congress, “shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Treason bears the distinction of being the only crime specifically named in the Constitution. Instances of prosecution have been rare in recent years, but less so in the past. Updating that limited precedent with contemporary scholarship on warfare permits us to consider timely questions: Could a cyber attack perpetrated by agents of a foreign power with the intent of changing the composition of a branch of government constitute “levying War” against the U.S.? Would knowingly endorsing such actions rise to “aiding” an “enemy”?

Constitutionally, Can Treason Apply to Cyber War?

The first of treason’s two variations, “levying war against [the U.S.],” may be relatively flexible, going by precedent.

Any direct tie between a person and the primary perpetrators, or proof of even minor participation, could suffice. Chief Justice John Marshall noted in the Aaron Burr treason opinion that a conspirator may be guilty of levying war even without making an “actual appearance in arms,” and even if their participation is “remote from the scene of action, that is, from the place where the army is assembled.” Marshall emphasizes that such a “part, however minute or remote, constitutes the overt act, of which … the person who performs it can be convicted.”

In United States v. Greathouse, a 19th-century U.S. court, working from this Supreme Court precedent, concluded that “levying war” doesn’t require participation in “open hostilities.” It is enough to “perform any part in the furtherance of the common object, ‘however minute or however remote from the scene of action.’” The court noted also that the term “levying war” “embrace[s] not only those acts by which war is brought into existence, but also those acts by which war is prosecuted. They levy war who create or carry on war.” Further, the court noted that any force directed at overthrowing the government — whether in whole or in part — or “defeat[ing] the execution and compel[ling] the repeal of the of its public laws” qualified as levying war.

The Supreme Court elsewhere addressed the meaning of “assembled” in the context of “levying War”: “if war be actually levied — that is if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose” and “there must be an actual assembling of men for the treasonable purpose to constitute a levying of war.”

Academics have anticipated the questions about how outdated legal architecture could accommodate modern actors and hostilities. Contemporary legal scholars have argued that “levying war” should include non-state and terrorist attacks. And, going one step further, other scholars have proposed theories of “armed attack” or “force” that account for cyberwarfare and its potential to achieve the aims of war without physical conflict.

What one scholar describes as a “non-kinetic effects approach” would determine whether cyber attacks constitute armed attacks, or acts of war, based on their effects rather than on any requirement of physical force. This scholar marshals a compelling historical example as support for this notion: naval blockades. He argues that the Framers saw any large-scale disruption of commerce or interference with a right, and concomitant economic threat, as an act of war. This interpretation comports with the Greathouse court’s language concerning acts that were tantamount to “defeat[ing] the execution and compel[ling] the repeal of … public laws.”

An alternate, sovereign-focused frame would find any attack threatening a state’s sovereignty or autonomy tantamount to an armed attack. To the extent that the significance of armed attack was, in its confirmation, an intent to usurp, this interpretation commands a sort of common-sense appeal. This definition seems apt for an argument, in the hypothetical, resting on an attempt to overthrow — to actually change the composition of — one part of the government. Say, the executive branch.

The final thorny term, “assembled,” must also be updated. But if a cyber attack can be an act of war, a cohort linked by bytes and wires coordinating with one another to perpetrate such an attack has surely assembled. And there are certainly those in government who have gone through just such reasoning: Senator John McCain, amongothers, has stated that the Russian cyber attack was an act of war.

“Aid and Comfort to the Enemy”

The second form of treason is trickier still. It has two elements: “adherence to the enemy; and rendering him aid and comfort.” The main hitch here lies with the definition of “enemy.” The Greathouse court noted that “‘enemies,’ … according to its settled meaning, at the time the constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us.” Just as it is uncertain whether a cyber attack may constitute an act of war, the judiciary has yet to establish a contemporary definition of “open hostility.”

The latter part of this second definition of treason has proven more capacious. Precedent proves generous for hypothetical purposes. In 1945, for example, the Supreme Court noted that “making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength” constitute “aid and comfort.”

Giving a speech — or, say, sending a tweet — promoting an enemy, to say nothing of reorienting foreign policy in that enemy’s favor, could arguably satisfy the “rendering … aid and comfort” criterion. And if an intent to aid that enemy can be shown, adherence can sometimes be established by inference. It may be that if words and actions offering aid and comfort were found to be part of a pattern, “the cumulative effect of such a series of addresses or articles would, within the rules of law, be held to afford suitable foundation for a finding by a jury that the accused not only adhered to the enemy, but gave them aid and comfort.”

When Is It Time for Impeachment?

Anything coming close to treason almost certainly offers ample basis for impeachment. The Impeachment Clause of the Constitution reads: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” While there is debate over whether the “High” of “other High crimes and Misdemeanors” means an impeachable offense must have been committed while in office, ongoing support for an enemy nation after assuming office — or the fact of having committed an offense that makes the occupant unfit to govern — could prove strong bases for refuting such arguments.

The phrase “high Crimes and Misdemeanors” operates as a catch-all. Unlike treason, carefully defined in the Constitution, an impeachable offense is, as Gerald Ford said, “whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” The flip side, of course, is that no offense is an impeachable offense if a majority of the House refuses to consider it to be one.

While the high threshold for proving treason — the requirement of two witnesses to each act or confession in open court — has kept the number of prosecutions low, that lack of precedent could serve as an advantage when it comes to advancing novel arguments. And were there ever grounds for an “aid and comfort” prosecution, any Trump Twitter follower or regular television viewer could be a witness hypothetically. Moreover, unlike impeachment proceedings, a proceeding stemming from a charge of treason could — contingent upon the resolution of several other legal questions — take place in a court instead of the Senate. And, of course, a conviction for treason would guarantee the “attainted” official’s removal.

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