What does it mean, anyway?

There’s an excellent article over at The Washington Post, that points out — accurately — that we need to stop throwing around the word “treason” in the context of any parts of the political scandal that currently engulfs the White House, or any aspects of what is increasingly looking like many illegal activities that culminated in Donald Trump’s electoral victory last November.  Whatever crimes were committed in the greater process, treason is not one of them.   

The definition of treason is outlined in article 3 of the Constitution. And nothing done by anyone associated with the Donald Trump campaign — even if every allegation against everyone happens to be true — rises to the level of treason by simple virtue of the fact that we are not at war with Russia.   

So yeah, there are lots of crimes worth exploring.   They range from campaign finance violations to conspiracy, to obstruction of justice, to perjury, to countless other crimes I can’t even begin to guess.  But treason is not one of them.   So we really shouldn’t bandy that word around in the context of the election or the Trump White House.   

But at least the word “treason” has a practical working definition.  There’s another word — a phrase actually — that is being used a fair amount that doesn’t even have that.   The phrase is “constitutional crisis.”  I’ve always interpreted the phrase to mean a situation that the constitution doesn’t address in terms of how to govern (and Wikipedia seems to back me up on this) but all too often we see it in the capacity of infighting within the government and when there are scandals that could affect the day-to-day performance of government activities.  When Bill Clinton was impeached a lot of people called it a constitutional crisis and I thought back then that it wasn’t a crisis.  Indeed, it might have been a personal crisis for Clinton himself, but the constitution definitely allows for it.   

That’s not to say there haven’t been constitutional crises in American history:

  • In 1841, William Henry Harrison died a little over a month after taking the oath of office, and the constitution didn’t have any provisions as to what should happen upon the death of the president.  There was no shortage of people who argued that his Vice President, John Tyler, didn’t automatically become president, and the appropriate title would have been interim president or caretaker or, mockingly, “His Accidency”.  From a purely legal perspective, this question wouldn’t actually be resolved until more than 120 years later with the passage of the 25th Amendment (after the death of the most recent president to die in office).
  • In 1861, following the election of Abraham Lincoln, several states seceded from the Union and formed the Confederacy.   The constitution did not (and still doesn’t) provide for any circumstances under which a state may secede from the union and even before the election there were actually three schools of thought with regard to secession: those who felt that states have the right to secede, those who felt that states don’t have the right to secede but the federal government has no authority to prevent it, and those who felt that states don’t have the right to secede and the federal government is empowered to prevent it.   (If that second school of thought sounds wishy-washy to you, welcome to the presidency of James Buchanan.)
  • In 1876, the actual electoral vote count was in dispute and it was only actually resolved with a compromise tied to the end of the post-Civil War reconstruction.   

There have been others, but they were usually resolved relatively quickly.   Whatever is going on at the White House, at all levels, it’s not a constitutional crisis.  There’s certainly no real leadership going on, and I’m actually quite thankful that Trump isn’t actually getting much of his racist, xenophobic, sexist, myopic agenda to pass, but it’s not a constitutional risks.   

I do wonder, though, if the people who are truly in legal trouble (and I include Trump Jr in that group) realize the trouble they’re in.   There’s a scene in the recent HBO movie The Wizard of Lies, in which Bernie Madoff (played by Robert De Niro) goes off the rails on his eight year old granddaughter because she was asking simple questions about Wall Street.  Madoff was a man who knew for years the damage he was going and the stress finally got to him.   I can picture Don Jr acting the same way right now…