Setting the Table for Treason

Suppose for the moment that Robert Mueller wanted to bring charges of treason against Americans in connection with L'Affaire Russe.  (Yeah, I know. But bear with me.)  What would that look like?  What steps would Mueller have to take to "set the table," so to speak, for treason charges?

By now, most of us following the Special Counsel's investigation know the Constitutional formula by heart: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."  Now, the "levying War" provision has traditionally been invoked only in cases of armed uprisings like the Whiskey Rebellion or the "Battle" of Blair Mountain, so let's assume that it's not at issue here.  To successfully charge Americans with treason, Mueller would therefore have to prove that they had (1) given aid and comfort (2) to an enemy.  

What counts as "aid and comfort?"

Rather than try to answer that question in the abstract, let's look at how it has been defined in actual treason prosecutions.  Remarkably, four of the six Americans convicted of treason against the United States since the end of the Civil War were prosecuted for their role in the creation and dissemination of enemy propaganda targeting Americans.  Specifically: Martin James Monti, Robert Henry Best ("Mr. Guess Who"), Iva Toguri D'Aquino ("Tokyo Rose"), and Mildred Gillars ("Axis Sally"). So, wherever the exact boundaries of "aid and comfort" lie, it seems pretty clear that assisting in the creation and dissemination of enemy propaganda falls definitively within them.

Coincidentally, what I'll call "Russia Indictment #1," relating to the social media activities of the Internet Research Bureau, alleges the existence of a covert Russian propaganda operation targeting Americans.  

Who counts as an "enemy?"

Writing in the Washington Post, UC Davis law professor Carleton F.W. Larson asserts that, "enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war . Nations with whom we are formally at peace, such as Russia, are not enemies." 

But curiously, if you follow the link Professor Larson supplies in support of his claim, you read Sir Michael Foster (1762) saying the following:

States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed. And the Fact, whether War or No, is triable by the Jury; and Publick Notoriety is sufficient Evidence of the Fact.

That is, Larson's citation is to a source which says exactly the opposite of what Larson claims.  Specifically, a formally declared war is not a requirement for a state to be an enemy, and whether a state is in "actual hostility" is not "defined very precisely" by law, but is rather a triable question of fact.  (And where Professor Larson gets the idea that enmity, if undeclared, must be "open war," placing the rendering of aid to a state engaged in covert, undeclared hostilities outside the bounds of treason, is a mystery to me.)  

So, who counts as an "enemy?" If Sir Michael is right, an enemy is a state which a jury finds to be engaged in "actual hostility" with the United States.  

Coincidentally, what I'll call "Russia Indictment #2," relating to the hacking of the DCCC, the DNC, and the Clinton campaign, alleges that the Russian armed forces (the GRU in particular), acting on the instructions of its national command authority, planned and carried out a series of military operations against the United States on American soil.  (The indictment goes as far as naming specific, uniformed officers of the Russian military who carried out the operations.)  That is, the indictment alleges facts that might persuade a reasonable jury that Russia was not merely a "competitor" or "adversary," but an enemy engaged in actual hostilities with the United States.

Returning to our original question: what would it look like if Mueller were "setting the table" for bringing treason charges against Americans in connection with L'Affaire Russe?  It turns out that it might look a lot like the two "Russia Indictments" we've seen to date.