Let’s stay within reason when it comes to alleging treason

I am pretty sure I first heard the unflattering term from my old friend and golfing buddy, the late David Clark of Greensboro. He was an accomplished plaintiff’s lawyer who had clerked at the Supreme Court for Hugo Black and knew whereof he spoke. His term, edged with scorn, was “jailhouse lawyer” — a species of would-be practitioner, often from behind bars, whose pretensions exceed his legal knowledge.

I don’t believe I was the target, although as a columnist I have frequently practiced law without a license and even published a novel about an imaginary Supreme Court episode. I bring up the term because jailhouse lawyering has become quite the fad among the “fake news” set in coping with Donald Trump — especially post-Helsinki. His latest offense against national interest was to engage in a kissing contest with the Russian autocrat, Vladimir Putin and in the process to insult U.S. intelligence agencies and their findings. Every day, the airwaves swarm with legalisms like “obstruction of justice.”

I was surprised, however, when a former CIA chief joined the chorus after Helsinki. He was no doubt infuriated to hear his former agency degraded in the world’s eye. That said, however, it must also be said that John Brennan’s response to Trump’s embrace of Putin was a bit superheated. Trump’s comments on U.S. intelligence, he said, reached the “high crimes and misdemeanors” standard for impeachment. Then, mixing impeachment with a graver offense, he charged Trump with “treason.”

Treason is a harsh term, once in bad old days bandied about by the likes of Sen. Joe McCarthy and Richard Nixon when as vice presidential candidate he was acting as Dwight Eisenhower’s political rabbit-puncher. (Nixon in 1952 even charged the Democrats with “20 years of treason.”) The word’s use in casual politics is no measure of its gravity and fine public servants like Brennan ought to avoid it. Consulting his pocket Constitution, he will find that treason is aiding, abetting and comforting “enemies.” Russia is an adversary, but not an enemy, just as the European Community is a friend not a “foe,” as Trump called it. A conviction of treason, moreover, requires two witnesses to the same overt act. Note especially the word “act” — not “view” or “opinion” or even presidential pronouncement. The language is among our indispensable legacies from English law.

No lessons in the Constitution would be necessary, except that inexactitude of language is among Donald Trump’s daily specialties, and it is unhelpful when important critics echo his inexactitudes. However absurd, irresponsible or slipshod Trump’s chatter, it is protected by the First Amendment, for a president as for the rest of us. That doesn’t mean it is harmless. The problem with Trump, it can’t be too often said, is that he is an ignoramus and misfit in the White House who should be sent back to the management of gambling dens.

Our system establishes broad tolerances for language because its free play is the life-blood of sound constitutions. We maintain the distinction between talk and treason even when a president, in a delirium of irresponsibility, insults traditional allies and plays the booby with adversaries.

But it is a mark of increasing danger when Trump’s verbal maundering drags distinguished public servants into the inappropriate role of jailhouse lawyers. No, the Helsinki showboating was not treason. It is enough to say that it was impeachable.

Edwin M. Yoder Jr. of Chapel Hill is a former editor and columnist in Washington, D.C.. He won the Pulitzer Prize for Editorial Writing in 1979.

This story was originally published July 20, 2018 at 9:32 AM.