We found out Friday that Vladimir Putin had not just reached a hand into the US election, but put his thumb on the scale. In typical fashion, Obama tried to reach an unreachable bipartisan consensus on whether to disclose this information before the election, and in typical fashion, Mitch McConnell and other Republicans put party before country and threatened to kick up a partisan maelstrom if Obama disclosed what the CIA had concluded.
Put another way, McConnell and his gang actively concealed acts of Russian espionage against the people of the United States and thereby enabled Russia to succeed in its objective: installing Donald Trump, an easily manipulated stooge with intellectually disabling personality disorders, as president of the United States. (We’re not saying that Russian interference caused the election result; we’re saying that Republicans enabled Putin and that Putin got the result he wanted.)
This is worth repeating: Republicans actively concealed and enabled acts of espionage against the United States. A question arises from facts like these: did they commit treason?
Technically, no. Article III of the US Constitution makes it treason to levy war against the United States or to adhere to our enemies, giving them aid and comfort. Obviously, Republicans, although they have done their best to undermine time-honored American institutions (and much of the national government itself) for many decades now, have not yet devolved into a state of open war against the United States.
That leaves us only with the possibility that they have adhered to an enemy. Adhere means cleave to or join. One might argue that by actively concealing and even endorsing Russia’s sabotage of a US election, Republicans cleaved to and joined in Russia’s espionage. And in a very real sense, they did.
But federal courts have had occasion to interpret this provision of Article III, and one of the leading cases, from 1919, is called US v Fricke. In Fricke, a federal court explained,
Remembering the words, ‘adhering to its enemies, giving them aid and comfort,’ all of [these] elements are necessary to constitute the crime[:] There must be the adherence, there must be the giving of aid, and there must be the giving of comfort; and in general, when war exists, any act which, by fair construction, is directed in furtherance of the hostile designs of the enemies of the United States, and gives them aid and comfort, or if that is the natural effect of the act[;] it is treasonable in its character if an American citizen does an act which strengthens, or tends to strengthen, the enemies of the United States in the conduct of a war against the United States; that is, in law, giving aid and comfort to the enemies of the United States.
You might already have seen the difficulties here. First, to be guilty of treason, one must commit an overt act that gives aid and comfort to an enemy. In the case of Republican acquiescence to a Russian plot against the United States, their sin was in their silence and their failure to act. Although doing nothing in some circumstances can cause as much or more harm that acting overtly, it is nonetheless not actionable as a basis for a charge of treason.
Second, note that “enemy” is defined as a country with which the United States is at war. And that means a hot war, not a cold one. Is Russia an enemy of the United States? In some senses, yes: its interests are often contrary to US interests; its missiles are programmed to hit US targets if ever they were to be unleashed from their silos; and it has designs on regional if not global hegemony that depend for their success on a weakened and feckless United States – one in pronounced decline. (Obviously, Russians see Donald Trump as the man for that job.)
But in the legal, constitutional, sense, Republicans are off the hook on a technicality: although Russia is a formidable adversary, it is not an enemy because we are not – at least not yet – engaged in open and violent hostilities.
But it’s interesting that it has come to this. We are at a place where the question is a valid one, this question whether collusion between an American political party and a hostile foreign power have crossed the line between negligent or reckless nonfeasance and outright treason. And we suppose that this is the new Republican ethic: one needn’t aspire to patriotism; it is enough that he does not — technically, at least — commit treason.