In anticipation of this possibility, the Republicans have begun a campaign to convince the American public that the crime of treason can only be charged when the United States is in a declared state of war with another country, something that has not happened since World War II. This assertion is supported by the claim that court cases over our history have declared this to be true. I spent a little time online looking at treason trials conducted by the United States. They are actually few and far between, and mainly occurred early in our history as a result of the Whiskey rebellion, or as a result of World War II. (In a gross miscarriage of justice, almost nobody was prosecuted for participating in the Confederate aggression during the civil war.) Anyway, I am not an attorney, and I can't say I spent hours searching, but I was not able to find any record of a case that ruled this way. And even if there were such cases, that would not necessarily be dispositive, as the courts have clearly been wrong before; no one would argue that the decision in the Dred Scott case should be a precedent today, and the corrupt decisions in Bush v. Gore or Citizens United clearly cannot be allowed to govern our country in the future.
I want to now present two arguments against this notion, one Constitutional and one a reductio ad absurdem argument.
It always amazes me when right wingers dig up the most obscure so-called precedents to justify their positions, while ignoring the actual words of the Constitution, or the primary reference regarding their meaning, the Federalist Papers, written by the authors of the Constitution to explain their reasoning.
Signing of the Constitution
Well, first of all, here is what the Constitution actually says about treason:
Article III, section 3"1: 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."
Notice that there is nothing that restricts charges of treason to times of declared war. Now let me go on to the passage in Federalist Paper #43, written by James Madison on behalf of himself and his fellow writers of the Constitution:
Federalist Paper no. 43:"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 attained. ''As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author."
This is the entire explanation offered of the meaning of the treason section of the Constitution. Notice that, though the reasoning for various provisions in the Constitution is dealt with here, once again, there is no mention of any kind of a restriction of the provisions of this law to times of declared war.
As far as I am concerned, this section is completely dispositive. The writers of the Constitution went to great lengths in the Federalist Papers to explain exactly what they had in mind; they were perfectly capable of saying what they meant, and we are capable of reading it.
Now to my other argument, the reductio one. Imagine, if you will, that it was discovered that an American had aided the Japanese attack on Pearl Harbor. Could anyone seriously assert that this person would not be guilty of treason, solely because his behavior took place on the day before war was declared? Treason is among the worst crimes we know of; can any honest person suggest that a traitor could be absolved of his guilt by a meaningless technicality such as this?
As I stated above, we are already seeing Conservative "legal scholars" trying to work the refs by insisting that Donald Trump can not be charged with treason as a result of his betrayal of the country to the Russians; it is up to the rest of us to have none of this specious argument. This is the ultimate specimen of Trump's crimes; if he is held responsible for anything, this must be at the head of the list.
If you are interested in verifying that I have been truthful about the claims I have made about the Constitution, you can look here:
Text of the Constitution
Federalist Paper #43