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Trump’s Russian Hack Scandal Might Not Be Treason, But He May Still Face Consequences

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Donald Trump recently called on Russia to release more hacked DNC emails, much to the chagrin of both Washington intelligence experts and ordinary citizens. Many, in fact, wondered if Trump had crossed the line into committing treason, especially as professional Russian trolls may be stumping for him on the internet. But while some have taken the unprecedented step of accusing a presidential candidate of working with the enemy, Trump isn’t going to face treason charges. That doesn’t mean, however, that he’s out of the woods, legally speaking.

Did Trump Commit Treason?

However ill-advised Trump’s remarks may be seen by some, they’re not treasonous. The United States has a very narrow and specific definition of treason, and in fact, treason is the only crime defined by the Constitution, in Article III, Section 3:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

In other words, Russia would have to legally be at war with the U.S. for Trump’s remarks to even be legally viewed as treason in the first place. Before you ask, no, Trump hasn’t committed sedition under the law, either, and would have to go much, much further before that was a concern. But Trump has, potentially, violated another law entirely.

Did Trump Violate The Logan Act?

Trump might still have broken the law, though. Jonathan Alter tweeted out something that caught the eye of legal minds everywhere:

The Logan Act is an obscure law passed in 1799. It was named after George Logan, who attempted to broker peace between France and the U.S. despite having no authority to do so as a private citizen:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Trump’s behavior is a textbook example of violating the Logan Act. He spoke directly to Russia in his comments, called on them to act, and in fact called on them to aggravate a growing dispute between the two countries over the DNC email hack. Despite that, though, it might be tricky to get Trump on this particular crime.

Will Trump Go To Jail?

The Logan Act is incredibly obscure in part because nobody’s ever been convicted under it, and, frankly, because the crime in question is so rare in the first place. The closest the U.S. ever got was an 1803 case where a Kentucky farmer was indicted over a pamphlet he wrote, but the case was abandoned by the prosecutor. While there have been a multitude of accusations of violating the Logan Act over the years, including last year during a dispute Obama and the Senate had over the Iran nuclear agreement, nobody’s ever pushed it.

Nobody’s entirely sure the Logan Act is even constitutional, because it’s so vague in its wording. What does it mean to “defeat” the “measures” of the United States? Even government authorities have stated they don’t believe it is even when advising their employees about it. It’s served more as an empty legal threat than anything else.

Even if it is a slam-dunk, though, it would be unlikely to come to trial until after Election Day. Prosecuting political candidates is a complicated business as it might be seen as favoritism by the courts, or even outright interference in the electoral process. Trump has already managed to delay the Trump University trial until after the election.

So, while some may view Trump’s remarks as poorly considered, he’s unlikely to face a judge over them, at least for now. And unfortunately, there are far more troubling accusations he’s facing in court that might take priority.

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