If Treason Swung An Election, What Do We Do About It?

Ever since the news started trickling out that Trump and seemingly all of his associates have or had incredibly suspect ties to Moscow, I’ve been wondering … if Trump’s campaign committed treason, what the hell are we going to do about it?  Now that it appears Michael Flynn may have flipped on Trump, we should ask what the fallout would look like. Let’s assume, for purposes of argument, that 1) Donald Trump and his campaign coordinated with a foreign power to swing a US election, and 2) that action qualifies as treason. (I think it would, and you can read more about the current law of treason here.) There are two solutions to the problem that have been widely discussed in the Press and on social media. The first is to nullification of the election and the second is impeachment. I have already written on this blog that nullifcation is not warranted, and that rationale stands. Impeachment as a sole solution is also problematic. If Donald Trump committed treason by colluding with Russia as a means to assume power, every decision he has made as President could have been taken to serve the Kremlin’s interest in undermining American democracy. His entire Administration would be illegitimate, and must be expunged. If impeachment won’t solve all of the problems posed by a treasonous Trump, it’s up to us to figure out – is there a remedy?

He’ll have to be impeached, but that may not fix the problem

The trouble with impeachment is that it is a remedy for a personal criminal act, not a remedy to nullify the actions of a compromised President. Treason is explicitly mentioned as a basis for impeachment in Article 2 of the Constitution, so if Trump committed treason, he’ll get impeached. The problem is that impeachment would only remove Trump from office. That leaves all of his Executive Orders and federal appointments in place. If his appointees do not immediately resign, it would be hard to use impeachment to expunge Trump’s, and Russia’s, influence and decisions from the enormous executive bureaucracy.

Assuming Trump’s appointees do not immediately resign, in order to get the worst apples out of the executive, you would have to impeach not only Trump, but Pence, Sessions, Tillerson, and anyone else who may have participated in the conspiracy with Russia. Impeachment is a lengthy process. First, the House of Representatives, which acts like a Grand Jury, decides, on presentation of evidence, whether to impeach – or indict – the President or other executive officer for a criminal act. Second, the Senate conducts a trial. This process takes a while; Bill Clinton’s impeachment and trial took almost two months from beginning to end. Trying to impeach so many executive officers would take many months in which the legislature is not concentrated on the business of the public. That wouldn’t just be a scandal factory, it would impair the government’s ability to function.

No one anticipated this, so we don’t have an existing remedy

As importantly, even if Congress were able to impeach every conspirator, the problem remains: Trump set out to deconstruct the Administrative State and deliberately nominated departmental heads who will destroy their agencies (just look at the EPA). As with all of Trump’s decisions, we cannot know if he did so to serve Vladimir Putin’s ends. If I were Vladimir Putin, I would definitely want the US President to cripple all the institutions of American government. If Trump is proven to have colluded with Putin, there’s no reason to think he’d object to undermining our democracy. He’s been undermining it with his lies and conspiracy theories since he became the Birther in Chief. As the law currently stands, we cannot undo Trump’s actions unless the subsequent President chooses to do so. If Trump’s appointees did not commit a crime, and they will not resign, and the subsequent President does not fire them, we can’t get rid of them.

Clearly the drafters of the Constitution contemplated Presidential treason – it is the only crime mentioned in the Constitution, and it is a stated basis for impeachment. After all, these are the people who had to contend with Benedict Arnold. However, a situation in which a candidate for President could collude with a foreign power to disseminate propaganda, hack opposing political parties, and swing an election, thereby raising a specter of a foreign agent running the US government, could not have entered their minds. The technology did not exist to facilitate the type of treason Donald Trump and his associates could have committed. Impeachment isn’t enough; it could leave in place decisions and appointments designed to undermine American democracy and serve the interests of a power and a man – Vladimir Putin – who has declared his opposition to our system and values.

We need a mechanism for purging a Presidency acting on behalf of a hostile power

Should it emerge that Trump has committed treason, we need to purge his stench from the Executive. Congress will almost certainly impeach him and, if necessary, Mike Pence, and his appointees will probably resign, if they are not fired by the new President Ryan (who would be the strangest accidental President ever). However, I don’t think relying on the next guy’s discretion to reverse Executive Orders and fire cabinet appointees is an appropriate institutional protection for electing a real life Manchurian Candidate. One of the beauties of our system is its checks and balances, and we need a check for this situation. We can’t just rely on the next guy to do the right thing.

To restore faith in the Presidency as an institution, we need a mechanism to purge the acts of a President who assumed power through collusion with a hostile nation. As Director Comey said last Monday, this form of political warfare isn’t going away.  He expects the Russians to be back in 2018 and 2020. Currently, the 25th Amendment sets out quite clearly what happens when a President dies or is removed from office, and doesn’t provide for the invalidation of an Administration’s actions. I think it would promote confidence in the integrity of American government to establish a remedy for these circumstances, either through Congress, if it has that power, or through a Constitutional Amendment. We are in uncharted territory, and even if Trump has not colluded with Russia to the degree this argument supposes, if Russia remains determined to use non-military means to take down western democracies, we have to assume that someone else might. Trump is not the only rich, amoral narcissist in the country, and if Vladimir Putin dangles the Presidency in front of another one, who’s to say one of them wouldn’t take the bait?

 

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4 thoughts on “If Treason Swung An Election, What Do We Do About It?

  1. The Founders certainly didn’t have any concept of the Electronic World that we live in. In fact most sitting Senators didn’t see the changes in communication until very recently, like the last 4-8 years. The laws describing treason might need to be studied for an upgrade. International electronic money transfers take seconds rather than months through Lloyds of London. Espionage, sabotage and agent provocateurs will run rampant through our democracy. We need to restate the actions that demonstrate treasonous activity, to include modern methods of aiding and abetting a foreign power who seems to be attacking us without a declaration of war.

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  2. The Koch brothers want a Constitutional Congress to further their agenda. Anything can be brought up at a Congress. So I am extremely concerned about using an Amendment, given the pervasiveness of big money at this time.

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  3. Marks v Stinson did overturn election results based on a finding of fraud (in that case actual vote fraud, not existing in this situation) – part of the rationale for such an extraordinary remedy was based on an 11th Circuit Court finding that in the case of fraudulent election results mathematical precision is unnecessary (which can be interpreted as any voters swayed to NOT vote Clinton for President could never be quantified, should Trump-Russian collusion be proved) in Curry et al v Baker et al. It may not seem a likely outcome, given the necessity to convince the court that voter turnout, at the very least, if not actual votes cast were affected by Russian interference – but as there is some existing precedent it would depend on the interpretation of the Justices hearing the case and the eagerness to appeal should an unfavorable initial judgement be the result…which may explain the big push to get Gorsuch confirmed to SCOTUS.

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    • The problem I have with this line of reasoning is that it is distinguishable because there was no actual fraud in this electoral process. No hacked machines, no messing with vote counts. None of the Justices, even Ginsburg, are going to look at the two cases and say “this is the same thing.” If we could prove that there was some sort of actual fraud, it would be a different matter, but it’s hard to nullify an election based on the fact that a portion of the electorate was susceptible to disinformation. I think the FBI’s current tack of investigating the Trump Campaign’s collusion is the proper avenue. Ask yourself this: if Russia intervened for its own reasons, and simply sowed chaos with disinformation, would you believe in nullification? I just don’t think it’s the correct remedy for this problem. The problem isn’t as much Russian propaganda, it’s that they weaponized it in favor of one candidate, and that candidate may have been in on it.

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