Under the Constitution an individual commits treason if the nation is at war and the person provides aid and comfort to the enemy. This is an impeachable offense, committed by word or deed. It's one that individuals need to start grappling with seriously because it is not some far-fetched liberal fantasy to conclude that Donald Trump may have committed treason.
In fact, the case is fairly simple to make.
The U.S. intelligence community’s assessment of Russian activities in the 2016 presidential election concluded that Russia tried to influence the outcome through the dissemination and weaponization of information stolen from the Clinton campaign and the Democratic National Committee. The thirteen Russian operatives indicted by the Special Counsel for waging a disinformation campaign through our social media platforms and other internet media, described their activity as “information warfare against the United States of America.”
The question we must now ask is were these Russian cyber attacks merely crimes on a massive scale, or, as cyber expert George Lucas asks, do they represent something different — acts of war? And if a state of war existed between the two nations, could the actions and comments of Donald Trump and his campaign officials therefore be considered treasonable?
The first question is highly technical. International IT security experts have developed several analytical models to assess whether or not the damage caused by a cyber attack rises to the level of an armed attack. They have developed an “effects-based” approach, a model which gives consideration to the overall effects and consequences of a cyber attack on a victim state. For example, a cyber manipulation of information across a state’s banking and financial institutions that significantly disrupts commerce would be viewed as an armed attack.
Another model is one of “strict liability” that would automatically deem any cyber attack against a state’s critical national infrastructure to be an armed attack based on its potential for severe consequences. The validity of these models has been confirmed by the Pentagon’s usage of them in its recent draft recommendations on how the U.S. would respond to significant foreign cyber attacks.
Based on either one of these models, Russia’s cyber attack was an act of war. They significantly disrupted and damaged our Constitutional infrastructure in an attempt to undermine the foundation of U.S. democracy. They were of sufficient scope, duration and intensity to deem them armed attacks. Clearly, they meet the international criteria of an armed attack and an act of war against the United States.
Now for the second question.
With the United States placed in a state of war by Russia, Trump’s actions and comments and those of his top campaign officials during this time must be closely scrutinized. What we have gleaned from public reports is instructive:
- On June 9, 2016, Trump campaign officials met in Trump Tower with a group of Russian operatives that promised “dirt” on Hillary Clinton as part of the Russian government’s support for Trump;
- Yesterday, Senators released Donald Trump Jr.’s testimony before the Judiciary Committee in which he did not recall telling his father about that meeting, leaving open the possibility, if not probability, that, in fact, he did;
- On July 27, 2016, following revelations of the Democratic National Committee hacking and possible Russian involvement, Trump famously encouraged Russian hackers to break into Clinton’s computers to obtain emails Clinton had deleted on her private server;
- On or around August 17, 2016, Republican candidate Donald Trump and his top campaign officials received the first periodic briefing from U.S. intelligence officials. In that briefing they were informed by the FBI that Russia might attempt to infiltrate the Trump campaign; and,
- After the “Access Hollywood” tape was released, Trump encouraged voters to read the Russian-hacked emails that were published by WikiLeaks on the internet and began to praise WikiLeaks on a daily basis. In total, Trump referred to WikiLeaks by name 137 times in public appearances and media interviews.
Trump’s comments and actions during this time are damning. He continually called for release of Russian cyber hacked documents that were intended to influence the outcome of the election. Based upon the preponderance of these known facts, it would be stunningly feasible to answer “yes” to the following: Did Trump assist Russia in its conduct of cyber war against the United States? Did the cumulative effect of the Trump campaign and Trump’s personal actions result in aiding and abetting a hostile nation? Did Trump’s actions rise to the level of giving aid and comfort to an enemy?
These are extremely important issues and I suspect both Congress and the Special Counsel's office will eventually be alarmed by the answers they find.
Tom Coleman is a former Republican Member of Congress from Missouri and an attorney. He has served as an adjunct professor of government at New York University’s Robert F. Wagner Graduate School of Public Service and at American University.