Newspapers across the world today echo the determination of the former CIA director John Brennan that US President Donald Trump betrayed his country when he sided with Russian dictator Vladimir Putin and defamed his own intelligence community, military, and Department of Justice. Stranger still, Trump blamed the United States for tensions with Russia, ignoring a long history of anti-democracy violence and human rights abuses, forty years of Cold War, and ongoing attacks against the US and the UK.
The US Director of National Intelligence Dan Coats responded by reiterating that the evidence shows an ongoing, “pervasive” effort by Russia to attack and manipulate American democratic processes.
On Friday, three days before Trump and Putin met in Helsinki, Special Counsel Robert Mueller indicted 12 Russian military intelligence officers. The indictment provided vital new information on a number of levels:
- It revealed the extent of the Special Counsel investigation’s detailed forensic tracking of Kremlin agents’ hacking activity — some of it appearing to follow in real time a contest of wills between hackers and security consultants.
- It revealed that hacking activity was tracked to a GRU headquarters in Moscow known informally as “The Tower”, making clear the election interference was a coordinated operation of the Russian state.
- In the most legally significant development, all 12 of the indicted operatives were officers in the Russian military — a clear indication that Vladimir Putin had ordered the cyber attack.
This third detail triggers Article III, Section 3 of the Constitution of the United States, which reads, in part:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
Article III, Section 3 is rarely invoked, because the Constitution also requires two witnesses to confirm the precise manner in which the treasonous acts occurred, and because public officials generally don’t side with enemies. In the case of Donald Trump, his betrayal was witnessed by tens of millions of people around the world via televised press conference.
Trump has made his political living on the premise that the freedom to hold any opinion, no matter how erroneous or irresponsible, is sacrosanct. But as President of the United States, he has certain legal responsibilities that curtail his freedom to be convinced of and to spread falsehoods that threaten national security or Constitutional process in concrete ways.
Russian military or paramilitary operatives have carried out a years-long and, according to the current US Director of National Intelligence, “pervasive” attack on American democratic process. As yet unnamed Russian operatives have used the nerve agent Novichok to carry out assassination attempts on British territory.
Under Article VI of the Constitution, a ratified treaty is “the supreme Law of the Land”. The treaty that created NATO (the North Atlantic Treaty Organization) is Constitutional law. The obligation to treat an attack on any member state as an attack on all is binding. The President of the United States does not have the freedom, or the legal authority, to treat such an attack as undeserving of a response.
Trump’s coddling of Vladimir Putin and active refusal to defend the United States, the United Kingdom, and other NATO allies against Russian attacks, contravene his obligations under the Constitution.
Under Putin’s command, the Kremlin is levying war against the United States. Trump is giving Putin and his operatives aid and comfort.
Shortly after the scandalous press conference in Helsinki, the Department of Justice of the United States unsealed yet another indictment. Maria Butina, a 29-year-old Russian living in the United States, has been charged with working as a Kremlin agent while concealing the purpose of her activities on American soil.
She is alleged to have worked to arrange a “secret meeting” between then candidate Donald Trump and Vladimir Putin, after building relationships through the National Rifle Association and evangelical Christian networks. Her aim, according to the indictment, was to convert the Republican Party to a pro-Russia foreign policy view (effectively to expand Vladimir Putin’s authoritarian reach onto US territory, to persecute dissidents and undermine the US and its relations with allies). Her activities may include illegal contributions to the NRA and the Trump campaign.
Separate from the Special Counsel’s investigation, this Justice Department counter-espionage operation is at least the third distinct criminal prosecution of Russian operatives’ efforts to interfere in the US and/or make connections with Donald Trump. The Southern District of New York is also investigating links between Trump’s former lawyer and Russian organized crime and government operatives.
Being Commander in Chief, President Trump does not have the legal right to interfere in such investigations to protect a hostile foreign power making war against the United States. As President, his words have performative value and constitute actions of government, which can cause a ripple effect throughout the chain of command. His unlawful intervention on the side of Vladimir Putin has the potential to disrupt the prosecution of those responsible for a military cyber attack on the United States.
This is why former CIA director John Brennan described Trump’s behavior as “nothing short of treasonous.” Senior Republicans have now joined Democratic critics in calling for Mr. Trump to leave office:
- Christine Todd Whitman, the Republican former New Jersey Governor and EPA Administrator, urged Trump: “Please step down, you are not fit to lead this great nation.”
- Senator John McCain said firmly that “No prior president has ever abased himself more abjectly before a tyrant.”
- Both joined many other Republican Party leaders and office-holders in calling Trump’s actions “dangerous” to US security interests.
There are four ways the Constitution provides for Mr. Trump to leave office without provoking a crisis in rule of law or national governance:
- Mr. Trump could resign, voluntarily handing over power to the Vice President, the next most-senior elected Constitutional officer.
- The Vice President could meet with the Cabinet, under the 25th Amendment, Section 4, and deliver to the leaders of the Senate and the House of Representatives “their written declaration that the President is unable to discharge the powers and duties of his office”, temporarily removing Mr. Trump from power. That temporary removal can be made permanent, if Mr. Trump objects and if two-thirds of both Houses of Congress vote to make his removal permanent.
- Mr. Trump could be impeached by the House of Representatives, in which case, he would be put on trial before the Congress. The Senate could then vote to convict him of “Treason, Bribery, or other high Crimes and Misdemeanors” (under Article II, Section 4), removing him from office.
- Mr. Trump might be indicted as a criminal conspirator in the Russian election meddling effort or in the effort to obstruct the counter-espionage investigation. The President is not above the law. While indictment alone might not make it impossible for him to continue to hold the office, the specific charge of acting as an agent of a foreign power would. Such a situation could trigger action under the 25th Amendment, on the basis of hard national security concerns.
According to the Constitution, an elected candidate does not assume the presidency unless and until swearing an oath to “preserve, protect and defend the Constitution of the United States.”
On Monday, July 16, 2018, Donald J. Trump made clear his abdication of that responsibility and his intention to work against the Constitutional system he was elected to serve. Where other public statements have raised questions about his loyalty to the rule of law, Monday’s shocking deviation makes clear Mr. Trump does not wish to and cannot serve in the role of President of the United States.
The question now, for all who have sworn to support or defend the Constitution, is: what Constitutional action will follow this abdication?